Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The House of Representatives overwhelming approved a bill (H.R. 3578) that would require the Federal Aviation Administration (FAA) to use the formal rulemaking process to adopt any new or revised requirement providing for the screening, testing, or treatment of pilots for a sleep disorder. By the same token, the FAA could institute such a policy for air traffic controllers only if it meets its obligations pursuant to chapter 71 of title 5 of the U.S. Code.
This bill was introduced a day after the FAA announced a new planned policy that would require aviation medical examiners (AMEs) to calculate the Body Mass Index (BMI) – a method for identifying obesity and a measurement that is related to risk of sleep apnea – for every pilot. Under the terms of the planned policy, pilots with a BMI of 40 or more would need to be evaluated by a physician who is a board-certified sleep specialist, and, if diagnosed with obstructive sleep apnea, treated before they could be medically certified.
A similar measure requiring the Federal Motor Carrier Safety Administration (FMCSA) to follow formal rulemaking procedures before including sleep apnea screening in its medical examination requirement for commercial drivers was enacted into law on October 15, 2013.1
The move to mandate formal rulemaking can be seen as part of an effort to blunt agency sub-regulatory activity. Other federal agencies, including the Occupational Safety and Health Administration, have been criticized recently for creating new policies and employer requirements without first undergoing the requisite notice and comment period required by the Administrative Procedures Act.
Although it is hard to predict which bills, if any, will be enacted this term, this measure has a better than average chance of becoming law.
1 Pub. L. No. 113-45 (Oct. 15, 2013).