For the record: An extraordinary situation

With once-routine visits to an aviation medical examiner now as obtainable as toilet paper, the FAA—in response to various industry efforts to keep pilots flying—turned to a few unique administrative procedures to find a solution.

As much of the country was asked to stay at home and many medical practices closed, it became apparent that it would be nearly impossible for pilots to visit an AME for their required medical examinations. FAR 61.2(a)(5) states that no person may exercise privileges of a medical certificate that is expired according to the duration standards in FAR 61.23, with no exceptions. While some medical authorities loosened their rules to make telemedicine visits more accessible, the FAA did not follow suit, reminding AMEs that for FAA exams, “virtual, online examinations” are not permitted.

On March 26, the FAA responded to calls for relief from AOPA and the industry by implementing an Enforcement Policy for Expired Airman Medical Certificates. The FAA Office of Chief Counsel announced that because of the pandemic, it would not take legal enforcement action against any required pilot flight crewmember or flight engineer for operating within the United States with an expired medical through June 30, as long as the medical had expired between March 31, 2020, and June 30, 2020. Such temporary changes in the FAA’s exercise of its prosecutorial discretion for certain violations have been implemented before, but sparingly.

However, pilots flying with an expired medical certificate still had reason for concern. This policy only meant that the FAA wouldn’t suspend or revoke an airman’s pilot certificate for flying with an expired medical; it didn’t extend a medical certificate’s expiration date. Yet many aircraft insurance policies generally state that the pilot must hold, “if required, a current and valid FAA medical certificate.” Since the FARs still required an unexpired medical certificate, it was conceivable that an insurer could assert that the pilot was flying while not in compliance with its policy, potentially jeopardizing coverage in the event of a claim.

Air carriers also raised concern as the enforcement policy only applied within U.S. airspace and Part 121/135 rules prohibit using a pilot with an expired medical certificate. In response, the FAA issued two exemptions through FAR Part 11. As part of this well-established process, it must be shown that granting the exemption is in the public interest and won’t adversely affect safety.

Here, the FAA recognized that air carriers are “a key part of the U.S. infrastructure that transports food, supplies, mail, and personnel” and their ability “to fly internationally is vital to the U.S. supply chain.” Unlike the enforcement policy, these exemptions extended the validity period of medical certificates for certain air carrier pilots, provided several conditions and limitations were met to ensure safety.

Still, many pilots were left without a solution and the industry continued to seek relief from medical certification requirements and other FARs, ultimately resulting in the implementation of Special Federal Aviation Regulation (SFAR) No. 118. The FAA periodically issues these regulations for a variety of matters, such as urgent airspace and training changes, but generally only when the rule is expected to be necessary for a limited time. To implement the SFAR quickly, the FAA utilized provisions of the Administrative Procedures Act to waive rulemaking procedures such as the public comment period.

Notably, the SFAR extended until June 30, 2020, any medical certificate expiring between March 31, 2020 and May 31, 2020. Most important, a certificate extended under this provision is considered valid under FAR 61.2(a)(5). The rule also applies outside the United States, if not prohibited by a foreign country and the airman has access to a copy of the SFAR and presents it upon request.

The FAA commented that “it is not appropriate at this time to maintain the requirement of an FAA medical examination, which is a nonemergency medical service, in order for pilots with expiring medical certificates to obtain new medical certificates,” adding that personal contact increases the risk of virus transmission.

By the time you read this, the medical extension provided by the SFAR may have expired. As this article heads to the printer in May, we can only guess that if disruptions continue the SFAR’s provisions may be amended, although these days little seems predictable. The FAA, however, has effectively demonstrated several procedures it has used to help keep pilots flying—and, if necessary, may use again.

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