Domingo-AFX-1-2 2018

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Federal Aviation
Administration
Memorandum
Date:
To:
From:
Prepared by:
Subject:
CCi 1 2 1618
Ricardo Domingo, Executive Director, Flight Standards Service,
_ j:f X: 1 .(-., _,1 J-
C)l~~~nt Chief Counsel for Regulations, AGC-200
Gahan Christenson, Staff Attorney, AGC-240
Legal Interpretation of 14 C.F.R. § 67.401 - Airman's Obligation to
Provide Medical Records Pursuant to§ 67.401 When the Underlying
Special Issuance Medical Certificate is expired and the related
Authorization for a Special Issuance Medical Certificate has not
expired.

This memorandum responds to your request for a legal interpretation and addresses whether an airman must comply with a request for medical infonnation pursuant to 14 CFR § 67.401(£)(4) when an airman holds an unexpired Authorization for Special Issuance of a Medical Certificate (Authorization) but the underlying special issuance medical certificate has expired. 1 This question is of particular importance to airmen operating under 14 CFR part 68, Alternative Pilot Physical Examination and Education Requirements (BasicMed). To be eligible for BasicMed, an airman must have held a valid medical certificate at any point after July 14, 2006, and, while that medical certificate may be expired, it cannot 1 This memorandum is discussing situations in which a special issuance medical certificate bas expired. The FAA is not addressing situations in which an airman attempts to surrender his special issuance medical certificate or the underlying Authorization.

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have been revoked, suspended, or, in the case of a special issuance medical certificate, the underlying Authorization cannot have been withdrawn. 14 CFR § 61.23(c)(3); 82 FR 3153 (January 11, 2017). Section 67.401(f)(4) provides, in relevant part, that the Federal Air Surgeon may withdraw an Authorization at any time ifthe holder of the Authorization "fails to provide medical information reasonably needed by the Federal Air Surgeon for certification under this section." Pilots and aviation organizations have reached out to the FAA to determine whether the Federal Air Surgeon could withdraw an unexpired Authorization for failure to provide information under§ 67.401(f)(4) after the ainnan's special issuance medical certificate has already expired, thereby preventing an airman from operating under BasicMed.

As explained further in this memorandum, when an airman's special issuance medical certificate has expired and the airman is not in the process of seeking a new special issuance medical certificate, additional medical information is not reasonably needed for certification under§ 67.401. Consequently, the Federal Air Surgeon may not withdraw the Authorization based on the ainnan's failure to provide information "not reasonably needed by the Federal Air Surgeon for certification under this section[§ 67.401(f)(4)]." If an ainnan does not hold a special issuance medical certificate and has no application pending, there is no need for the Federal Air Surgeon to request information necessary to determine whether the airman meets the standards for special issuance medical certificate. 2 Authorizations often have a longer duration than the associated special issuance medical certificate. These longer durations are for internal FAA administrative purposes and 2 The FAA notes that under FAA Extension, Safety, and Security Act of 2016 (P .L. 114-190) and part 68, an airman with any of the conditions identified in§ 68.9 must have an Authorization and, therefore, is within the medical certification process.

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aid the Office Aerospace Medicine with the processing of special issuance medical certificates under§ 67.401. The Authorization's longer duration period conveys no independent medical privilege as evidenced by the requirement for an ainnan to demonstrate that he remains qualified for a new special issuance medical certificate when the current special issuance medical certificate expires. As such, an airman's responsibility to comply with the tenns of an unexpired Authorization - including a term that requires regular submission of medical information - terminates when the associated special issuance medical certificate expires. Because there is no reasonable basis for requiring an airman in those circumstances to provide medical infonnation that is not needed for determining medical certification under§ 67.401,3 the FAA would not have a basis to withdraw the Authorization.

The above interpretation is consistent with the purpose of BasicMed, to allow an airman who can meet alternate requirements to fly without holding a medical certificate. Both the enacting legislation, FAA Extension, Safety, and Security Act of 2016 (P.L. 114- 190), which directed the FAA to establish BasicMed, and the implementing regulations under 14 CFR part 68, however, provide specific situations in which an airman with an ongoing or new medical condition must apply for an Authorization before operating or continuing to operate under BasicMed. Additionally, an airman operating under BasicMed may be asked to provide medical information to the FAA under 14 CFR part 68. Part 68 allows the Administrator under certain circumstances to require an individual to provide additional infonnation or history so that the Administrator may determine whether the individual is safe to continue operating under BasicMed. Moreover, an airman is still under 3 This legal interpretation does not address situations in which an airman is reapplying for a new special issuance medical certificate under an unexpired Authorization.

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a duty to ensure he is not operating an aircraft when he has conditions making him medically unfit.4 Because alternate avenues are provided to collect infonnation, it does not appear that Congress, who mandated BasicMed, wanted an airman to be beholden to continued requests for infonnation related to a prior Authorization after the most recent special issuance medical certificate has expired and the airman is not in the process of seeking a renewed special issuance medical certification.

4 Under § 61.53(c)(2), a person shall not act as pilot in command, or in any other capacity as a required pilot flight crewmember, while that person knows or has reason to know of any medical condition that would make the person unable to operate the aircraft in a safe manner.

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Federal Aviation
Administration

Memorandum

Date:

To :

From:

Prepared by:

Subject:

t1AR 0 1 201B

Lorelei Peter. Assistant Chief Counse l for Regulations. AOC-200

John S. Duncan, Executive Director. Flight Standa rd ~ Service. AFX-1

Brad C. Zeigler, Aviation Safety Analyst, AFS-810. (202) 267-9601

R1;qucst for Legal Interpretation of 14 CFR §67.40 I (1)(4) The Fe d~ral A via1ion Administration (FAA). General Aviation and Commercial Di vision. Airmen Training and Certification Branch (AFS-810) is the office of primary responsibility for Basic Med, an alternati ve means for airmen to establish medical eligibi lity. BasicMed was established by law in section 2307 of the FAA Extension, Safety, and Security Act of2016 (FESSA) on July 15, 2016. and became effective on May l, 2017.

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AFS-800 has received sevcra.I inquiries from airmen intend ing to transition from holding a ,,..,rt Ol i 31/l li tnt:dical certificate to operating under Basic Med. Many of these airmen have expressed concern """""----- that the authorization letters associated with the special issuance arc often issued for time period ;~·1~$'.8~~)'.S'.(1 1 : si0 nificantly longer than th~ duration of the medical certificate they are ass<1ciatcd with. As suc h....,.,.,----0 • lM OAJ, :\~!{ 1 the authorizations often require periodic action by the airman for the duration of the Hrndi'. authorization. such as providing follow up reports from a treating physician. 1-,-.. ,-, - --- 113n.f20 I H Section 67.40 I(1)(4) orTitle 14, Code of Federal Regulmlons states that ''An Authorization or Cll ltlM h YMl• lL SODA granted under 1'1£' provisions C?f'this sect ion to a person who does 11ot meet rhe applicable ,ws-xi ol'~e r R~~ prm•1'sio11s ofsu hparf.\' JJ. C. or D oft his part me~)' />(~ lt'i/ hdraim, at tlw di.,·aetion o.fI he Federnl '~'K~{" ' u Air Surgeon. at any I i111e !!I .. } [t] he holder f ails 10 provide medirnl it?/(mnation reasonably needed by the Fec/r:ral Air Surgeo11.for cerr~fica1ion under this section.'· Airmi::n who opt lo alhl\ :'mOil s their medical certificate to expire and operate under BasicMed have expressed concern they ma}.____ _ become ineligible because the FAA could later \vilhdraw their auihorization fo r fai lure to provide medical information requested in the authorization letter.

In light of BasicMed. Flight Standards Service seeks a legal interpretation of under what ci rcumstances, if any. would an ainnan who previousl y held a medical cert ifica1e with an

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authorization f(w spcl'ial is::;uance be con::;idenxl h) have .. fail[ ed] to provide medical information reasonably needed by the Federal Air Surgeon for certification under this section".