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COHEN AND WEISS

Mr. Charles H. Ruby
-2-
October 12, 1967

Application by an individual pilot for a waiver is tantamount to a request for a prediction that he as a specific individual is not likely to suffer a heart attack. Absent a change in the basic medical approach by the FAA, it would appear that the reasons given by that agency in support of the collective rather than the individual approach to this problem would likely result in a denial of the application.

Indeed, the recent FAA denial of the waiver application of Captain Charles Force Hunter (FAA Regulatory Docket No. 8007, dated April 28, 1967) strongly suggests that the reasoning used by the Courts and the FAA in 1960 in defense of the action brought by the Association will be used to bring about a like result in the waiver process. Captain Hunter sought to show the FAA that the reasons given in support of the rule were not applicable to him, by virtue of his exemplary record of health, proficiency and performance. Denying the waiver, FAA referred to its 1959 statement that "Any attempt to be selective in predicting which individuals are likely to suffer an incapacitating attack would be futile under the circumstances and would not be medically sound," and it further stated:

"The FAA does not have sufficient medical or other evidence at this time on which to justify initiation of a selective system of the type rejected when the age 60 rule was adopted."

It likened the grant of waivers under these circumstances to "conducting experiments in actual Part 121 operations."

Although carrier support would be helpful, it does appear that probably it would take collective carrier action to hold out additional promise of effective aid in this type of proceeding. Avoidance of the effect of the age sixty regulation by means of waiver application presented first before the FAA and then to the Court does not at this time hold out much probability of success.