The Story behind the 3rd Class Medial Final Rule

Pilot 3rd Class Medical Final Rule
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Pilot 3rd Class Medical Final Rule

BasicMed: Alternative Pilot Physical Examination & Education Requirements

The FAA issued a very short press release on its issuance of its Final Rule on the 3rd Class Medical Certificate. True to regulatory speak, the issuance bears the laborious title Alternative Pilot Physical Examination and Education Requirements or labeled by the more consumer friendly name (like B4UFly) BasicMed. Administrator Huerta (no word from Secretary Foxx; does his silence equate to acquiescence or protest by abstention?) made the following innocuous statement:

“The United States has the world’s most robust general aviation community, and we’re committed to continuing to make it safer and more efficient to become a private pilot,” said FAA Administrator Michael Huerta. “The BasicMed rule will keep our pilots safe but will simplify our regulations and keep general aviation flying affordable.”

Until now, the FAA has required private, recreational, and student pilots, as well as flight instructors, to meet the requirements of and hold a third class medical certificate. They are required to complete an online application and undergo a physical examination with an FAA-designated Aviation Medical Examiner. A medical certificate is valid for five years for pilots under age 40 and two years for pilots age 40 and over.

Beginning on May 1, pilots may take advantage of the regulatory relief in the BasicMed rule or opt to continue to use their FAA medical certificate. Under BasicMed, a pilot will be required to complete a medical education course, undergo a medical examination every four years, and comply with aircraft and operating restrictions.

A pilot flying under the BasicMed rule must: BasicMed, which was explicitly defined by Congress July 15, 2016 FAA Extension, Safety, and Security Act of 2016, as the following specific elements:

  • possess a valid driver’s license;
  • have held a medical certificate at any time after July 15, 2006;
  • have not had the most recently held medical certificate revoked, suspended, or withdrawn;
  • have not had the most recent application for airman medical certification completed and denied;
  • have taken a medical education course within the past 24 calendar months;
  • have completed a comprehensive medical examination with a physician within the past 48 months;
  • be under the care of a physician for certain medical conditions;
  • have been found eligible for special issuance of a medical certificate for certain specified mental health, neurological, or cardiovascular conditions, when applicable;
  • consent to a National Driver Register check;
  • fly only certain small aircraft, at a limited altitude and speed, and only within the United States; and
  • not fly for compensation or hire.

The rule requires 77 pages to explain all of its intricacies, but AOPA has done a very good job of translating the requirements into plane (homonym for plain) speak; here is the link to the association’s explanation.

Because Congress “spake” (i.e. told the FAA exactly what to do), the FAA decided that it may issue this regulation as an immediate final rule, not subject to the normal APA notice and comment procedure:

The Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) requires an agency to conduct notice and comment rulemaking except when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. The FAA finds that notice and the opportunity to comment are unnecessary and contrary to the public interest in this action because the FAA has simply adopted the statutory language without interpretation and is implementing that language directly into the regulations. The FAA further finds that delaying implementation of this rule to allow for notice and comment would be contrary to the public interest as to do so would delay the new privileges Congress sought to provide.

What the FAA failed to mention in its documents is WHY Congress had to write the standards for the NPRM and mandate that the FAA issue the rule by January 10,2017. This quote from the AOPA website provides very interesting, if not one sided (wait for side 2), context:

Pilot 3rd Class Medical Final Rule“AOPA has submitted third class medical reform petitions to the FAA since the 1970s. With the exception of the sport pilot driver’s license medical standard in 2004, the petitions fell on deaf ears. The sport pilot standard has now been in place for more than a decade—but despite its success, there was not enough support to expand it so more pilots could take a passenger and go for a ride on a Sunday afternoon in a Cessna 172 or Piper Cherokee…

How we got here

After the latest petition went unanswered, AOPA was frustrated with the lack of progress on third class medical reform. Under the leadership of President and CEO Mark Baker, the association again urged the FAA to embark on a rulemaking process. FAA Administrator Michael Huerta acknowledged the frustration and had his agency draft a rule that would make significant changes to the current medical process.

mark baker aopa president

AOPA President Mark Baker made third class medical reform a priority when he came on board at AOPA in 2013. Baker represented the industry many times by testifying to Congress on reform.

AOPA President Mark Baker made third class medical reform a priority when he came on board at AOPA in 2013. Baker represented the industry many times by testifying to Congress on reform.

When regulations are written they go through what is called an ex parte process, which effectively means they are not made public until the proposed rule goes through the required approvals [SIC]. The FAA sent its notice of proposed rulemaking to the Department of Transportation, where it quietly and unceremoniously was quashed. AOPA fought back. In one of the association’s more memorable letters, Baker told DOT Secretary Anthony Foxx the association was exasperated. “The delays are particularly maddening when the proposed rule is likely so closely based on a standard that has been used by thousands of pilots for more than a decade,” Baker wrote.

With no movement from the DOT, Baker decided to take another route of action. AOPA engaged Congress on a legislative strategy and found a friend in Sen. Jim Inhofe of Oklahoma. Inhofe was interested in pushing a follow-up to his earlier and successful Pilot’s Bill of Rights, and the medical certificate language was the perfect complement to his new legislative effort. It was called the Pilot’s Bill of Rights 2. Working with Sen. Joe Manchin of West Virginia and Reps. Sam Graves, Todd Rokita, and others in the House of Representatives, the legislation was introduced in both houses of Congress on February 25, 2015. AOPA put out the call for its members to get involved. “Being involved in the process is everything,” said Jim Coon, AOPA’s senior vice president of government affairs and advocacy, and AOPA’s point man on the third class medical reform efforts.”

jim coon aopa

Jim Coon, AOPA’s senior vice president of government affairs and advocacy, and AOPA’s point man on the third class medical reform efforts.

So AOPA (EAA, GAMA, NBAA, NATA, HAI, NASAO, etc.) were made aware that the Secretary’s staff, and likely also the omniscient experts at OMB, were opposed. To deal with those bureaucratic hurdles, President Baker and his talented lobbyist went to Congress to “overrule” the bureaucrats who were not enlightened about the value of the proposed 3rd Class Medical Rule.

pilot Medial Final Rule

But what appears to be a battle between GA and the DOT/OMB {OIRA} had additional combatants/advocates.

pilot medical fitnessNone other than the Chairman of the NTSB, Christopher Hart (a GA pilot) has testified and mentioned opposition to the relaxing of medical requirements for pilots. In his testimony before the House T&I Committee in 2015, he (on behalf of the Board Members and staff) mentioned that “Requiring Medical Fitness for Duty” was on the Most Wanted List. In fact that concern is still highlighted in its most recent MWL.

Others, who qualify as fairly knowledgeable about the 3rd Class medical issue, opposed the Aviation Medical Examiner (AME) Association and the American Medical Association.

Another forceful, knowledgeable voice on aviation safety entered the fray. The Air Line Pilots Association initiated a last minute attack on the 3rd Class medicals reform. In the below letter to lawmakers ALPA wrote that its members have “grave concerns” about sharing the same airspace with “medically unfit pilots” who would be given “unfettered access to the national airspace up to 18,000 feet.”

alpa letter manchin amendment

REMEMBER: many, if not most, ALPA members are also GA pilots.

Now with a view of the multi-faceted debate, the reason for delay may make more sense?

The final rule includes a very cleverly written hint that the FAA staff would prefer that GA pilots retain their old Part 67 medicals (a bit of a mixed message with the citation to the enforcement powers):

The FAA notes that the use of this rule by any eligible pilot is voluntary. Persons may elect to use this rule or may continue to operate using any valid FAA medical certificate. The FAA recognizes that a pilot who holds a medical certificate may choose to exercise this rule and not to exercise the privileges of his or her medical certificate. Even though a pilot chooses not to exercise the privileges of the medical certificate for a particular operation, the FAA retains the authority to pursue enforcement action to suspend or revoke that medical certificate where there is evidence that the pilot does not meet the FAA’s medical certification standards. 49 U.S.C. 44709(a).

The FAA also explained that there will be further verbiage to help pilots and doctors understand the new rule:

To further implement this final rule, the FAA has developed Advisory Circular 68-1, Alternative Pilot Physical Examination and Education Requirements. The advisory circular describes the relief and provides guidance on how to comply with the rule’s provisions. It also includes frequently asked questions and guidance on how a nonprofit or not-for-profit general aviation stakeholder group can offer an approved course under this rule.

Another oddity is found in the details of the Regulatory Flexibility Determination. Ordinarily with the introduction of a rule which arguably reduces the level of safety (See NTSB and ALPA comments), the FAA must create a Benefit Cost Analysis to justify the diminution. The numerator of this ratio is an econometric review of the positive contributions (i.e. the reduction in the time and expenses required to get a certificate from a Designated Medical Adviser; the additional sale of aircraft stimulated by this more expansive rule). The denominator’s estimation of the possible negative consequences of allowing pilots to self-certify their health might have included the increased incidence of GA aircraft crashes/fatalities due to in-flight medical emergencies. The Federal Register notice did not include such possible consequences.

The FAA estimates potential savings to pilots, based on age and a pilot’s medical condition, from eliminating medical examinations with an AME. The elimination of these examinations will save pilots the time to complete the online medical application (MedXpress), travel time to the medical examination, the time required to complete the medical examination, vehicle operating costs based on miles traveled to the examination, and the cost of the medical examination. For pilots with special-issuances, the FAA anticipates added savings by eliminating follow-up medical evaluations, determined by their medical condition, with an AME. Additionally, the FAA will save time by reducing the number of applications reviewed for special-issuance medical certificates. Total savings are estimated at $382.9 million ($272.8 million at a 7 percent present value) over 10 years.

As with so much in Washington, what agency states in the issuance of a rule and what was truly behind it may have some degrees of variance.

 


FAA Issues General Aviation Medical Rule
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2 Comments on "The Story behind the 3rd Class Medial Final Rule"

  1. Two well known clinics; six state licensed physicians; none would do the BasicMed exam. In my almost 50 years of professional engineering (licensed in two states) I performed the work that came to me, refusing none. What is happening to the service by medical professionals?

  2. One role of the Federal government is to regulate “commerce”. It says so in the United States Constitution. What the Constitution does not say is that a role of the Federal Government is to determine whether or not a citizen is healthy enough to participate in his or her chosen hobbies or recreational activities. Denying a citizen the use of their aircraft for private transportation or personal pleasure purposes, violates the citizen’s rights. Specifically, the rights referred to by our Founding Fathers as “inherent” and “unalienable”, among these the “…pursuit of happiness”. In Meyer v Nebraska the U.S. Supreme Court ruled in favor of the plaintiff that citizens do, in fact, have a “right” to the “pursuit of happiness”. The Third Class Medical Certificate requirements for Private Pilots needs to go away. I predict that it will only be a matter of time before it is challenged in Federal Court on this basis. The FAA, the DOT, the CAA and their predecessors have been routinely denying American Citizens, who have a passion for aviation, their fundamental rights for more than ninety years. It needs to stop.

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