Flight Surgeon’s BMI/Sleep Apnea “Policy” is a Nightmare Rule subject to APA

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Article: NBAA Supports House Bill Calling for FAA to Follow Rulemaking Process on Sleep Apnea

Agency Has Suggested Policy May Be Issued Soon Without Industry Consultation

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The FAA Flight Surgeon has found evidence which he believes supports a conclusion that pilots and controllers with of a Body Mass Index of 40 or greater will have to be evaluated by a Doctor with Board Certification on sleep disorders as part of their initial issuance or renewal of their medicals. Based on his judgment and some very informal procedures, Dr. Tilton issued a policy statement directing all of the Aviation Medical Examiners to follow this “rule”.

While this FAA action seems to be consistent with a number of proactive initiatives which rely on data trends and which attempt to address problems before they become the probable cause of an accident this Flight Surgeon policy has been criticized by EAA, AOPA and NBAA. Their point is that the standards established by this “informal policy’ really constitute rulemaking. They point to 14 CFR Part 67 (specifically §67.111, which sets very explicit cardiovascular standards) and cogently argue that the BMI 40 sleep apnea criteria should be subjected to the APA requirements.

The strength of their argument so impressed Chairman LoBiondo, Rep. Rick Larsen (D-2-WA), ranking member of the aviation subcommittee; House GA Caucus co-chair Rep. Sam Graves (R-6-MO), and Reps. Dan Lipinski (D-3-IL), Larry Bucshon (R-8- IN), Richard Hudson (R-8-NC) and Pat Meehan (R-7-PA) that they have introduced legislation which would compel the FAA to subject this new standard to a full NPRM process. H.R.3578

The FAA’s frustration with the complexity and delay inherent in its NPRM process appears to have caused it to seek other methods of moving safety standards. Calling the regulated to discuss new training methods without issuing final rules based on those conversations is fine. However, the Flight Surgeon issued an Advisory Circular calling the pilots’, controllers’ and AMEs’ attention to the BMI and sleep apnea issue, and instructed the AMEs not to issue the Part 67 certificate without the sleep apnea assessment . The Flight Surgeon’s directive created a new mandatory standard.

The FAA needs to return to Square One and restart the process.

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1 Comment on "Flight Surgeon’s BMI/Sleep Apnea “Policy” is a Nightmare Rule subject to APA"

  1. James Michael Barnes | December 12, 2013 at 3:58 am | Reply

    Maybe all doctors should be tested for HIV before they are allowed to practice medicine. It would be just as meaningless. It is just another way for the powers that are to exert total control over Citizens. That seems to be the current trend in Government with all aspects of our lives these days. The next step will be to require a genotype before a medical is issued. That will keep some of those skinny guys with deficiencies out of the sky. First they want to charge for the airspace now we are too fat to be in it. Do you suppose there is a “hidden agenda”? Nah! that could never happen in America.

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