Section 107.59 Refusal to submit to an alcohol test or to furnish test results.

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Section 107.59 Refusal to submit to an alcohol test or to furnish test results.

A refusal to submit to a test to indicate the percentage by weight of alcohol in the blood, when requested by a law enforcement officer in accordance with §91.17(c) of this chapter, or a refusal to furnish or authorize the release of the test results requested by the Administrator in accordance with §91.17(c) or (d) of this chapter, is grounds for:

(a) Denial of an application for a remote pilot certificate with a small UAS rating for a period of up to 1 year after the date of that refusal; or

(b) Suspension or revocation of a remote pilot certificate with a small UAS rating.

My Commentary on Section 107.59 Refusal to submit to an alcohol test or to furnish test results.

Sections 107.59, 107.57, and 107.27 are intertwined. 107.27 is more monetary penalty focused while 107.57 and 107.59 are focused on a revoking/ suspending a certificate or denying a certificate application. They are just three tools in the toolbox for FAA prosecutions to get at the defendant.

Advisory Circular 107-2 on Section 107.59 Refusal to submit to an alcohol test or to furnish test results.

Part 107 does not allow operation of an sUAS if the remote PIC, person manipulating the controls, or VO is unable to safely carry out his or her responsibilities. It is the remote PIC’s responsibility to ensure all crewmembers are not participating in the operation while impaired. While drug and alcohol use are known to impair judgment, certain over-the-counter medications and medical conditions could also affect the ability to safely operate a small UA. For example, certain antihistamines and decongestants may cause drowsiness. We also emphasize that part 107 prohibits a person from serving as a remote PIC, person manipulating the controls, VO, or other crewmember if he or she:

• Consumed any alcoholic beverage within the preceding 8 hours;
• Is under the influence of alcohol;
• Has a blood alcohol concentration of .04 percent or greater; and/or
• Is using a drug that affects the person’s mental or physical capabilities.

FAA’s Discussion on Section 107.59 Refusal to submit to an alcohol test or to furnish test results from the Final Small Unmanned Aircraft Rule

As proposed in the NPRM, this rule will require the remote pilot in command, the person manipulating the flight controls of a small UAS, and the visual observer to comply with the drug and alcohol provisions of 14 CFR 91.17 and § 91.19. Section 91.19 prohibits knowingly carrying narcotic drugs, marijuana, and depressant or stimulant drugs or substances in civil aircraft unless authorized to do so by a Federal or State statute or government agency. Additionally, § 91.17 prohibits a person from acting as a crewmember of a civil aircraft: (1) within 8 hours after the consumption of any alcoholic beverage; (2) while under the influence of alcohol or any drug that affects the person’s faculties in any way contrary to safety; or (3) while having an alcohol concentration of 0.04 or greater in a blood or breath specimen. Under § 91.17, a remote pilot in command, the person manipulating the flight controls of a small UAS (if that person is not the remote pilot in command), and the visual observer must submit to testing to determine alcohol concentration in the blood if there is a suspected violation of law or § 91.17. These tests must be submitted to the FAA if the FAA has a reasonable basis to believe that the person violated § 91.17.

The Small UAV Coalition, the Aviation Division of Washington State Department of Transportation, and three individuals generally supported the provisions related to drugs and alcohol. One commenter asserted that the FAA proposed no requirement about the condition of the operator, such as illness or impairment by drugs or alcohol, and that small UAS remote pilots should be required to self-certify that they are in a condition that enables them to safely operate a small UAS.

The FAA clarifies that this rule does not allow operation of a small UAS if the remote pilot in command, visual observer, or the person manipulating the flight controls of a small UAS is unable to safely operate the small UAS due to drug or alcohol impairment. As discussed previously, this rule will, among other things, require these people to comply with the provisions of § 91.17.

With regard to non-drug or alcohol impairment, such as an illness, the FAA notes that, as discussed in section III.F.2.c of this preamble, a person may not act as a remote pilot in command or visual observer or manipulate the flight controls of a small UAS if he or she knows or has reason to know that he or she has a physical or mental condition that would interfere with the safe operation of a small UAS. It is also not necessary to require a self-certification statement prior to every small UAS flight because this requirement is not imposed on manned-aircraft operations by the drug and alcohol provisions of §§ 91.17 and 91.19.

Cherokee Nation Technologies commented that over-the-counter medications could impair the ability to safely operate a small UAS. The FAA agrees with this comment and notes that over-the-counter medications are addressed by the provisions of this rule. Specifically, § 91.17(a)(3) prohibits the use of any drug that affects the person’s faculties in any way contrary to safety.

The University of North Dakota’s John D. Odegard School of Aerospace Sciences commented that the contents of §§ 91.17 and 91.19, which are cross-referenced in proposed part 107, should be included in their entirety in proposed part 107 to enable ease of reading and understanding the regulations. However, duplicating the entire regulatory text of §§ 91.17 and 91.19 in part 107 is unnecessary in this case. FAA regulations, such as §§ 91.17 and 91.19, may be changed by future rulemakings or statutory changes, and crossreferencing regulatory sections in part 107 will minimize inconsistencies between part 107 and any subsequent amendments made to §§ 91.17 or 91.19. Additionally, crossreferencing regulatory sections allows the FAA to avoid duplicative regulatory text in its regulations.

Two commenters expressed concerns about the potential use of small UAS for drug-smuggling and other illicit acts. The Institute of Makers of Explosives asked that the FAA specify penalties for the use of small UAS in committing illicit acts, including those involving drugs and alcohol. One commenter stated that any remote pilot should lose his or her privileges under part 107 if found to be operating while in a condition that does not permit safe operation of the small UAS. Another commenter suggested that remote pilot certificates should be denied, suspended or revoked for committing an act prohibited by 14 CFR 91.17 or § 91.19.

The FAA emphasizes that, in addition to the requirements of § 91.17 discussed above, this rule will also require compliance with § 91.19, which prohibits the knowing transportation of illegal drugs unless authorized by a Federal or State statute or government agency. If a person violates § 91.17 or § 91.19, the FAA can take enforcement action, which can result in the imposition of civil penalties or suspension or revocation of that person’s airman certificate. People who engage in illegal conduct involving drugs may also be subject to criminal prosecution under Federal or State law.

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As proposed in the NPRM, this rule will allow the FAA to deny, suspend, or revoke a certificate for reasons including drug or alcohol offenses and refusal to submit to an alcohol test or furnish the results.145 Additionally, as discussed in the Remote Pilot Certificate Issuance and Eligibility section of this preamble, this rule will allow the FAA to deny, suspend, or revoke a certificate if TSA makes a finding that the applicant or certificate holder poses a security risk. This rule will also require certificate holders to notify the FAA of any change in name or address. Finally, certificate holders will be able to voluntarily surrender their certificates.

a. Drugs and Alcohol Violations
The FAA adopts the provisions related to drug and alcohol violations as proposed in the NPRM. Accordingly, under § 107.57(a), the FAA may deny a remote pilot certificate application or take other certificate action for violations of Federal or State drug laws. Certificates could also be denied, suspended, or revoked under § 107.57(b) for committing an act prohibited by § 91.17 or § 91.19, as discussed in section III.I of this preamble. One commenter stated that any remote pilot should lose his or her privileges under part 107 if found to be operating while in a condition that does not permit safe operation of the small UAS. Another commenter suggested that remote pilot certificates should be denied, suspended or revoked for committing an act prohibited by 14 CFR 91.17 or § 91.19.

The FAA agrees. Under this rule, if a person violates § 91.17 or § 91.19, the FAA can take enforcement action, which may result in the imposition of civil penalties or suspension or revocation of that person’s airman certificate. Section 107.59 of this rule specifies that certificate action could be taken for: (1) failure to submit to a blood alcohol test or to release test results to the FAA as required by § 91.17; or (2) carriage of illegal drugs in violation of § 91.19.

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The FAA’s oversight statutes, codified at 49 U.S.C. 44709 and 46104, provide the FAA with broad investigatory and inspection authority for matters within the FAA’s jurisdiction. Under section 46104, the FAA may subpoena witnesses and records, administer oaths, examine witnesses, and receive evidence at a place in the United States that the FAA designates. Under section 44709, the FAA may “reinspect at any time a civil aircraft, aircraft engine, propeller, appliance, design organization, production certificate holder, air navigation facility, or agency, or reexamine an airman holding a certificate issued [by the FAA].”

The NPRM proposed to codify the FAA’s oversight authority in proposed § 107.7. First, § 107.7 would require the airman, visual observer, or owner of a small UAS to, upon FAA request, allow the FAA to make any test or inspection of the small unmanned aircraft system, the airman, and, if applicable, the visual observer to determine compliance with the provisions of proposed part 107. Second, § 107.7 would require an airman or owner of a small UAS to, upon FAA request, make available to the FAA any document, record, or report required to be kept by the applicable FAA regulations. For the reasons discussed below, this rule will finalize these provisions as proposed.

The Department of Defense Policy Board on Federal Aviation suggested that § 107.7(a) be reworded to limit its applicability to “civil operators,” not operators in general. The commenter asserted that this change would preserve public operators’ statutory authorities.

As discussed in section III.C.3 of this preamble, the applicability of part 107 is limited to civil aircraft. Thus, part 107 will not apply to public aircraft operations. Because public aircraft operations will not be subject to § 107.7 (or any other provision of part 107) there is no need to amend the regulatory text of § 107.7 with regard to civil aircraft. The Kansas State University UAS Program asked the FAA to clarify, with respect to §107.7(b), what types of tests or inspections could be performed on the remote pilot or visual observer. Specifically, the commenter suggested that the FAA define whether such persons could be subjected to blood alcohol tests, drug tests, or knowledge tests. They also recommend that the section be reworded to reference § 91.17(c).

Section 107.7(b) codifies the FAA’s authority under 49 U.S.C. 44709 and 46104, which allow the FAA to inspect and investigate the remote pilot. This may involve a review, reinspection, or requalification of the remote pilot. With regard to requalification, 49 U.S.C. 44709 and § 107.7(b) allow the FAA to reexamine a remote pilot if the FAA has sufficient reason to believe that the remote pilot may not be qualified to exercise the privileges of his or her certificate. Additional guidance concerning the reexamination process can be found in FAA Order 8900.1, ch. 7, sec. 1.

Pertaining to the visual observer, as an active participant in small UAS operations, this person may be questioned with regard to his or her involvement in the operation. For example, if an FAA inspector has reason to believe that a visual observer was not provided with the preflight information required by § 107.49, the inspector may ask the visual observer questions to ascertain what happened. Because the visual observer is not an airman, the visual observer will not be subject to reexamination.

With regard to § 91.17(c), the FAA notes that, as discussed in section III.E.7.b of this preamble, § 107.27 will, among other things, require the remote pilot in command, the visual observer, and the person manipulating the flight controls of a small UAS to comply with § 91.17. This includes compliance with the alcohol-testing requirements of § 91.17(c). The City and County of Denver, Colorado suggested that airports be given the same rights as those granted to the FAA under §107.7(b). The commenter argued that airport operators have a duty to protect airport property, and that that duty can be fulfilled only when the airport operator has the opportunity to determine the nature and airworthiness of a small UAS.

AUVSI suggested that the FAA allow designated representatives pursuant to 14 CFR part 183 to act on behalf of the Administrator in order to determine compliance with the new regulatory standards. The commenter asserted that the FAA will not have the necessary manpower or financial resources required to allow the UAS industry and its technology to continue to evolve at its own pace. An individual commenter suggested that the FAA delegate compliance and enforcement authority to law enforcement officers and NTSB representatives.

The FAA’s statute does not authorize the agency to delegate its formal enforcement functions. Because it lacks the pertinent statutory authority, the FAA cannot delegate its enforcement functions in the manner suggested by the commenters. The FAA notes, however, that even though it cannot delegate its formal enforcement functions, it has worked closely with outside stakeholders to incorporate their assistance in its oversight processes. For example, the FAA has recently issued guidance to State and local law enforcement agencies to support the partnership between the FAA and these agencies in addressing unauthorized UAS activities.152 The FAA anticipates continuing its existing partnerships to help detect and address unauthorized UAS activities, and the agency will consider other stakeholders’ requests to be part of the process of ensuring the safe and lawful use of small UAS.

One individual suggested that a remote pilot in command must enable and make available to the FAA any flight log recording if the aircraft and/or control station is capable of creating such a recording. In response, the FAA notes that this rule does not require that a small UAS operation have the capability to create a flight log recording. However, if a small UAS does create such a recording, § 107.7(b) will allow the FAA to inspect the small UAS (including the recording made by the small UAS) to determine compliance with the provisions of part 107.

One individual suggested that the wording of §107.7(b) be modified to permit the FAA to conduct only “non-destructive testing” in the event of a reported violation of one or more provisions of part 107. The commenter asserts that, as written, § 107.7(b) would permit the FAA to “destructively test” every small UAS “on whim.”

The FAA declines this suggestion because there could be circumstances where destructive testing of a small UAS may be necessary to determine compliance with part 107. The FAA emphasizes, however, that this type of decision would not be made lightly and would not be part of a typical FAA inspection. For example, the FAA’s guidance to FAA inspectors about how to conduct a typical ramp inspection specifically focuses on non-destructive methods that the inspector can use to determine whether an aircraft is in compliance with FAA regulations.153 The FAA anticipates that, just as with manned aircraft, destructive testing of a small UAS will, if ever conducted, occur highly infrequently.

One individual recommended that §107.7 be modified to require a remote pilot to make a photo ID available to the FAA on demand. The FAA did not propose this requirement in the NPRM, and as such, it is beyond the scope of this rule.

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