Appendix — Baker v. Federal Aviation Administration

LS -

LED

No. Jan 2. 1999

JOSEPH F. SPANIOL, J

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1990

JOHN H. BAKER, et al.,

Petitioners,

FEDERAL AVIATION ADMINISTRATION, and

JAMES B. BUSEY, Administrator,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

ALAN M. SERWER

(Counsel of Record)

BELL, BOYD & LLOYD

Three First National Plaza

70 West Madison Street

Suite 3200

Chicago, Illinois 60602

(312) 372-1121

RAYMOND C. FAY

BELL, BOYD & LLOYD

1615 L Street, N.W.

Washington, D.C. 20036

(202) 466-6300

Counsel for Petitioners

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

INDEX TO APPENDIX

PAGE

Decision of the United States Court of Appeals for

the Seventh Circuit, October 31, 1990 ...... la

Judgment dated October 31, 1990 ............. 20a

Order of Federal Aviation Administration dated

May 26, 1989, Exemption No. 5052, Regulatory

Dockets Nos. 25008 and 25524 ............. 2la

IN THE

Supreme Court of the United States

OcTOBER TERM, 1990

JOHN H. BAKER, ef al.,

Petitioners.

FEDERAL AVIATION ADMINISTRATION, and

JAMES B. BUSEY, Administrator,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF

CERTiORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

—la—

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 89-2524

JOHN H. BAKER, et al..

Petitioners.

FEDERAL AVIATION ADMINISTRATION, and

JAMES B. Busey, Administrator,

™m ms I a >

ivespondents.

Petition for Review of an Orde

of the Federal Aviation Administration

ARGUED May 7, 1990—DecipEp OcToBER 31. 1990

Before BAUER, Chief Judge, CuDAHY, Circuit Judge,

and WILL, Senior District Judge.*

CUDAHY, Circuit Judge. In 1988, this court decided

Aman v. Federal Aviation Administration, 856 F.2d 946

(7th Cir. 1988) (Aman J), in which current and former air-

line captains sought review under 49 U.S.C. § 1486(a) of

a Federal Aviation Administration (FAA) order denying 1

petition for exemptions from FAA regulation § 121.383(c¢)

(the “age sixty rule”). The age sixty rule prohibits flights

under Part 121 of FAA regulations, including commercia!

The Honorable Hubert L. Will, Senior District Judge for the

Northern District of Illinois, sitting by designation

|

flights of aircraft seating more than thirty passengers,

from taking off under the command of pilots age sixty

or older. See 14 C.F.R. §§ 121.1, 121.383(c). While the

FAA is empowered to grant exemptions to this rule if

it “finds that such action would be in the public interest,”

see 49 U.S.C. § 1421(c) (the public interest standard), no

exemptions have ever been granted.

After recounting the age sixty rule’s tortured thirty

year history and establishing the appropriate “‘substan-

tial evidence”’ standard of review, this court in Aman |

carefully demarcated petitioners’ two claims. The first was

that pilots, age sixty or older, meeting petitioners’ pro-

posed battery of physical and psychological tests (the pro-

tocol), were no more likely to cause accidents due to sud-

den incapacitation or undetected deterioration of piloting

skills than other pilots. The FAA rejected this claim, find-

ing that it was not in the public interest to grant exemp-

tions when petitioners’ protocol did not surely reduce all

incremental risks associated with the aging process. Al-

though this court noted that it might well have concluded

otherwise as a matter of first impression, it held that sub-

stantial evidence supported the FAA’s finding.

Petitioners’ second claim was that the flying experience

gained by allowing pilots age sixty and older to fly off-

set any increased risk of accident due to sudden incapaci-

tation or skill deterioration, and that granting limited ex-

emptions effectively produced a net increase or, at least,

no net decline in safety. The FAA summarily rejected this

claim. Unsatisfied with the agency’s cursory treatment,

this court vacated the FAA order and remanded the mat-

ter to the agency for further proceedings.

On remand, the FAA again refused to grant exemptions,

and an order to that effect is presently before us for

review. After considering the FAA’s new order and both

parties’ somewhat flawed evidence, we cannot justify a

conclusion that, on average, experience sufficiently offsets

possible age-related impairment of health or skills to clear-

ly guarantee a net constancy or increase in safety. Ac-

cordingly, we affirm.

—d3a—

I.

While substantial evidence must support the FAA’s de-

cision, see Aman I, 856 F.2d at 951-52, petitioners have

the burden of showing that circumstances justify exemp-

tions from the age sixty rule, especially given the FAA’s

discretionary authority to act in this area. Starr v. FAA,

589 F.2d 307, 311 (7th Cir. 1978). It is a heavy burden

here involving obviously daunting problems of public safe-

ty. Age discrimination may form a dimension of the issue,

but safety is the dominant and controlling consideration.

The fact that it is apparently very difficult to demonstrate

any clear conclusion with respect to the trade-off between

experience and possible age-related impairment makes the

task extremely onerous for the bearer of the burden of

persuasion.

Petitioners have presented anecdotal evidence of super-

annuated pilots performing heroic deeds. Consider, for ex-

ample, Captain David Cronin, who at age 59, on his sec-

ond to last scheduled flight, heroically landed a Boeing

747 en route from Honolulu, Hawaii to Auckland, New

Zealand after a forward cargo door blew open 17 minutes

after take off, opening a huge hole in the side of the plane.

After two of the plane’s four engines became disabled,

Captain Cronin consulted emergency operating procedures

which directed him to dive, reduce speed and drop the

landing gear. However, 38 years of experience told him

that, if that course were followed, the plane would lose

too much altitude given its weight and multiple emergency

situation. Captain Cronin instead operated many of the

controls manually, constantly readjusting his speed and

altitude caiculations. With the exception of the nine pas-

sengers killed when the cargo door blew off, Cronin saved

the lives of all passengers and crew aboard, safely land-

ing the disabled plane at a much higher than normal speed.

Pet. Ex. 105, 105A, 106, J.A. 278-80. In an appropriate

context, we might give considerably more weight to the

“anecdotal” evidence of pilots in their late fifties im-

mediately before retirement performing amazing feats of

—49—

airmanship than presumably would the FAA. As noted

at oral argument, were the passengers of Flight 811 asked

whether their Captain Cronin should be permitted to con-

tinue flying beyond the mandatory retirement age of six-

ty, few could doubt their answer. Nor are we in a posi-

tion to say they would be incorrect. In the case before

us, however, it is apparently not pilots who have per-

formed aeronautical miracles who have sought exemptions,

and we need not consider the arguable entitlement of such

“special”’ pilots to exemptions from the age sixty rule.

While petitioners have thus made some suggestive anec-

dotal showings and presented impressive expert opinion

evidence, they have been unable to develop a persuasive

statistical record comparing average risks for pilots in

various relevant age categories. Petitioners, relying on

figures from the National Transportation Safety Board,

presented evidence that pilots age sixty and older had a

lower accident rate per 1,000 pilots than pilots in other

age groups. Pet. Ex. 71, 72, J.A. 215-16. This evidence,

however, failed to account for exposure to risk in terms of

hours of flight time. Thus, a pilot who had flown only a

relatively few hours in a year and therefore incurred only

a reduced risk of accident would carry the same weight

as a pilot who flew many hundreds of hours with their

greater attendant risks. R. 5; R. 103. Such a study is,

of course, of questionable value. In addition, no analysis

indicated whether the difference in accident experience

by age group was statistically significant, a sort of failure

specifically criticized in Aman I. 856 F.2d at 955. Peti-

tioners also presented evidence that allowing pilots, six-

ty or older, to fly would increase crew experience on the

average, but failed to show with any rigor that there was

a significant lack of pilot experience in need of correction.

This is not to say that the FAA’s evidence was any

more persuasive. The agency relied heavily on an acci-

dent experience report by age category referred to as the

Flight Time Study. Like petitioners’ studies this report

a

has serious flaws.! Perhaps the Flight Time Study’s great-

est failing is that the data for pilots under age sixty in-

clude millions of relatively safe air carrier miles flown,

miles which because of the age sixty rule were unavail-

able to pilots over sixty.? In calculating the accident rate

for pilots sixty and older, the Flight Time Study divides

the number of general aviation accidents by general avia-

tion flight time, the only category open to this group. But

for pilots under age sixty, the study divides the number

of general aviation accidents by general aviation flight

time and, in addition, air carrier operations flight time.

Because miles flown in air carrier operations are nearly

accident free, and millions of these exira miles are in-

cluded in the figures for younger pilots but not for older

ones, the accident rate for all pilots under age sixty is

significantly understated compared to the rate for older

pilots, whose accident rate is overstated. Indeed, looking

at the Flight Time Study’s chart of accident risk for Class

I (airline transport) and Class II (commercial) pilots with

greater than 5,000 hours total flight time (Pet. App. 42,

Fig. 7), the jump in accidents at age sixty to sixty-nine

from age fifty to fifty-nine simply looks too large to be

credible.*

1 Petitioners point out that the Flight Time Study is not even

relevant since that study, as originally presented seven years ago,

was based on data from 1976 to 1980 and was never intended to

justify the age sixty rule. Numerous comments of record from vari-

ous experts, even some from the FAA, state that the study should

not be relied on as determinative—or even probative—on the ques-

tion of the continued validity of the age sixty rule. As discussed

infra, even if the study is relevant, it is only of very limited

usefulness.

2 This vast discrepancy in flight exposure for the group studied

is one reason the petitioners presented figures on a per-pilot basis

without reference to hours flown.

3. The chart which shows petitioners’ attempt to recalculate these

numbers and correct for the safe miles unavailable to pilots over

age sixty appears to err in exactly the opposite direction. Pet.

Br. at 17. Again, neither party performed statistical analysis which

would indicate whether the differences were significant.

nT a

—ba—

Even without correcting the Flight Time Study for this

disparity in types of current flight hours, the FAA’s own

study on its face may in some aspects be construed to

support the petitioners’ claims, the raw data supporting

a number of different possible conclusions. Consider, for

example, the data showing accident rates as a function

of both total and recent flight time for Class III pilots

(general aviation and student). These data indicate that

pilots age 60-69 (even 70 and over) with more than 1,000

hours total flight time and more than 50 hours recent

flight time apparently have two of the lowest accident

rates of any age groups of pilots in Class III having

various indicated combinations of total and recent flight

time. These comparisons apply, of course, even with re-

spect to younger pilots in their thirties and forties, whose

safety qualifications are generally unquestioned. Flight

Time Study, J.A. 551, Fig. 9, J.A. 575-79, 809. More than

1000 hours total flight time and more than 50 hours re-

cent flight time might be a telling statistic if the FAA

could, for example, condition exemptions on total and re-

cent flight time. Safety would be advanced, presumably,

if the FAA required pilots to have at least a total of 1,000

flight hours and at leest 50 recent flight hours as a con-

dition for exemption.

Another arguable flaw in the Flight Time Study is that

all pilots in a ten-year age cohort are combined into a sin-

gle statistic. Thus, a single point represents pilots aged

sixty to sixty-nine. Presumably, more exemptions from the

age sixty rule would likely be granted to pilots under,

say, sixty-five than pilots over that age. Therefore, the

cumulation of accidents caused by pilots in their late six-

ties with accidents caused by pilots in their early sixties

may as a practical matter tend to skew the Study.

The FAA also presented evidence of automobile traffic

accidents and fatalities related to age. Res. Addendum B.

4 While Class III is not the universe from which air carrier pilots

would be selected, it is the category where the ratio of accidents

to flight time is subject to the least distortion.

—~Ta—

The connection between automobile drivers and pilots it-

self seems tenuous given the pilots’ training, demonstrated

proficiency, medical fitness, etc. Some of the FAA’s evi-

dence does not reflect ““exposure’”’ and some of it attempts

to relate the nonparallel categories of automobile fatalities

and aircraft accidents. Res. Br. at 19, n.17. Because el-

derly people seem more likely to die as a result of traf-

fic accidents than younger people, the probative value of

this latter showing is diminished.

Along with a directive for a more complete considera-

tion of petitioners’ second claim on remand, the FAA was

also requested to explain how it could rationally grant ex-

emptions to younger pilots who had suffered from alcohol

abuse, heart conditions and the like but not grant exemp-

tions to apparently healthy and proficient pilots over age

sixty. The agency’s justification was that, where particular

and identifiable health problems are shown, specific medi-

cal tests may be conducted to indicate whether the pilot

in question can continue to perform. On the other hand,

‘{alssessing the risks associated with determining which

pilots may fly beyond age 60 concerns detrimental condi-

tions which are unknown.” Res. Br. at 32. Exactly how

this distinction applies as a practical matter is not entirely

clear to us, but neither have the petitioners been able

to demonstrate its invalidity either theoretically or prac-

tically. Nor have petitioners apparently yet been able to

present to the FAA a totally reliable test or group of

tests which would reveal with certainty any general de-

terioration of piloting skills associated with advancing age.

See Aman I, supra, at 954. For present purposes, we will

not require more of the FAA with respect to the consis-

tency of restoring stricken younger pilots to duty while

barring oldsters whose records are impeccable.

IT.

Admittedly, petitioners in this case face a Catch-22: from

one perspective they cannot get exemptions until they

show they can fly large passenger aircraft safely, and they

ee

—_

cannot show they can fly such planes safely until they

get exemptions. Thus, a valid statistical demonstration of

comparative safety records by age seems difficult to ob-

tain unless all age groups are engaged in the same kinds

of flying. Since the age sixty and over group may not pilot

large passenger transport aircraft, statistical comparisons

are suspect. Nevertheless, it was the petitioners’ burden

to present persuasive evidence that granting exemptions

would not impair safety. While we have seen no compell-

ing evidence that granting exemptions would increase the

risk of accident, neither have we seen strong evidence

that the experience of the 60-and-over pilot clearly over-

bears the danger of deterioration of piloting skills (or of

sudden incapacitation) associated with the aging process.

Where crucial issues of public safety are at stake, we

would look for such a showing. Were the FAA to grant

exemptions, it (and we) would no doubt be better able

to resolve the question before us, but, absent the requisite

compelling evidence, we must defer in these circumstances

to the expert agency.®

We believe the agency’s order is supported by substan-

tial, albeit certainly not compelling, evidence. We reach

this conclusion because of the obvious difficulty in attempt-

5 In Aman I, we also suggested that there might be administra-

tive or economic reasons for the agency’s policy of withholding

exemptions from the age sixty rule and invited the FAA to discuss

these aspects of the problem if they were relevant. The agency

has elected on remand not to address non-safety concerns. We

think that_administrative and economic factors could hardly be en-

tirely absent. But, since the petitioners have been unable to carry

the heavy burden of establishing a case for exemptions from the

rule on a safety basis alone, we need not speculate about the eco-

nomic and administrative aspects.

6 We would reiterate that we are not, as the dissent argues, hold-

ing that ‘‘every airline pilot, on his or her 60th birthday, and re-

gardless of physical condition or experience, becomes a significantly

greater safety hazard than before ... .” Infra at 17 (emphasis

in original). The grant of specific exemptions from the age 60 rule,

and not the validity of the rule itself, is at issue here. In any

event, line-drawing may inevitably involve some arbitrariness.

—~9a—

ing to balance on a statistical basis experience against re-

liable indicators of good health and ability to perform as

age advances. Certainly the record abounds with testi-

monials by experts in both flying and medicine to the ex-

perience and judgment of the older aviator and the feasi-

bility of assuring the good health and performance of this

kind of pilot through frequent and sophisticated testing.

We are certainly not in a position to say that the numer-

| ous supporters of the petitioners’ case are wrong. And

| it is obvious that the FAA must continue and must en-

hance its efforts to accommodate their points of view. At

this time, however, we are not prepared to overrule the

agency in a matter of such immense sensitivity as this

one.? The FAA should not take this as a signal that the

age sixty rule is sacrosanct and untouchable. Obviously,

there is a great body of opinion that the time has come

to move on. The agency must give serious attention to

this opinion.

Accordingly, the order of the Federal Aviation Admin-

istration is

AFFIRMED.

WILL, Senior District Judge, dissenting. This court, in

Aman v. FAA, 856 F.2d 946 (7th Cir. 1988), reviewed the

age 60 rule’s “tortured history,” majority op. at 2, estab-

lished the appropriate “substantial evidence” standard of

review, noted that while the FAA is theoretically empow-

ered to grant exemptions from the rule, noe has ever

been granted, vacated the FAA’s order and remanded the

7 The principal prescription of the dissent would be merely to

remand “for consideration of the adoption of regulations establish-

ing ascertainable and meaningful standards to govern the grant-

ing of at least some exemptions to the age 60 rule.” Jnfra at 17-18.

Of course, as our opinion suggests, we too would look with favor

upon this sort of consideration by the FAA. However, this con-

sideration, because of the inevitable delays, would likely be of

slight help to these petitioners.

a

—10a—

case to the agency for further proceedings and the presen-

tation of further evidence that no airline pilct older than

age 59, regardless of physical condition and experience,

is qualified to fly a plane seating more than thirty pas-

sengers.

When the FAA adopted its age 60 and out rule some

thirty-one years ago, in 1959, it justified the rule by

stating:

(a) “. . . that there is a progressive deterioration

of certain important physiological and psychologi-

cal functions with age, that significant medical

defects attributable to the degenerative process

occur at an increasing rate as age increases, and

that sudden incapacity due to such medical de-

fects becomes significantly more frequent in any

group reaching age 60”

and

(b) “‘. .. that such incapacity, due primarily to heart

attacks and strokes, cannot be predicted accu-

rately as to any specific individual on the basis

of presently available scientific tests and criteria

. . [So that] any attempt to be selective in pre-

dicting which individuals are likely to suffer an

incapacitating attack would be futile under the

circumstances and would not be medically sound

99

24 Fed. Reg. 9767 (Dec. 5, 1959). At the same time, the

FAA also found that:

Other factors, even less susceptible to precise mea-

surement .. . [also] must be considered. These relate

to loss of ability to perform highly skilled tasks rapid-

ly, to resist fatigue, to maintain physical stamina, to

perform, effectively in a complex and stressful envi-

ronment, to apply experience, judgment and reason-

ing rapidly to new, changing and emergency situa-

tions, and to learn new techniques, skills and pro-

cedures. The progressive loss of these abilities .. .

—lla—

even though they may be significant in themselves

prior to age 60... assume greater significance at

the older ages when coupled with medical defects

leading to increased risk of sudden incapacitation.

ld.

Since 1959, numerous pilots, approaching or having cele-

brated their sixtieth birthdays, have petitioned for in-

dividual exemptions from the FAA’s rigid enforcement of

its age 60 and out rule. The agency, however, has never

granted an exemption—to anyone, regardless of his or her

physical qualifications or experience. Pilots with tens of

thousands of hours of flight time and flawless records, and

who pass every physical test with flying colors, sudden-

ly are grounded on their sixtieth birthdays, even though

the day before they were flying, without restrictions, and

were acknowledged to be qualified and, ivonically, are still

deemed qualified to pilot planes with thirty passengers

or less.

I

The FAA actually admits to a policy of uniformly de-

nying all petitions for exemptions from the age 60 rule.

It’s not that the FAA pretends that no person over the

age of 59 could ever safely pilot a Part 121 flight. In fact,

the agency concedes that some over-59 captains would do

just fine. Denial of Exemption, issued May 25, 1989, p.

31; petitioners’ appendix at 31. Then why not grant ex

emptions to those pilots? Why does the FAA persist in

refusing ever to exempt any pilot, no matter how able,

from its 60 and out rule? And why does it refuse to issue

meaningful standards and criteria for granting at least

some exemptions? Because, says the FAA, although many

pilots 60 and over would make safe captains, there is

simply no way to tell the safe ones from the dangerous

ones in advance.

In support of this position, the FAA advances, today,

in 1990, the same kinds of justifications it originally of-

—————

—12a—

fered thirty-one years ago, in 1959. And in 1990, just as

in 1959, these justifications are of two types. The first

starts from the proposition that “some psychomotor, emo-

tional, intellectual and physical attributes necessary for

enhanced flight crew performance deteriorate with age,”

Exemption Denial at 32, resulting in a “sharp decline in

physical and cognitive performance after age 60,” id. at

30; adds that there is no reliable way of measuring (or

even necessarily detecting) the extent of an aging pilot’s

deterioration; and concludes that it is not scientifically

possible to screen out safe 60-year-old pilots from danger-

ous ones without actually putting them up in the skies

and letting them fly.

The FAA’s second longstanding justification begins with

the observation that at age 60 skills are not only deteri-

orating but beginning to do so at an increasing and in-

creasingly unpredictable rate; adds that the dangers of

their deteriorating to the point of sudden incapacitation

(in flight, presumably) is significantly greater at age 60

and beyond than it was before; and finishes, again, with

the assertion that there is no reliable way to tell a safe

60-year-old pilot, who won’t suddenly collapse in flight,

from a dangerous one, who will. “The aging process. . .

is largely unpredictable, and generally is. not measurable

.... [T)here are no generally applicable medical tests

that can, at this time, adequately determine which indi-

vidual pilots are subject to incapacitation secondary to

either acute cardiovascular or neurological events or to

more subtle conditions related to cognitive functioning.”’

Exemption Denial at 32.

II

Two years ago, in Aman, supra, the FAA, advancing

both of its customary justifications, defended its original

denial of many of the same petitions that are before us

again on this appeal. At that time, this court partially

upheld the logic of the FAA’s customary justifications,

finding what the FAA itself has repeatedly held in con-

—1l3a—

nection with every request for an exemption since 1959,

i.e., “substantial evidence [to] support[ ] . . . rejection of

the contention that the petitioners’ protocol, combined

with existing methods of operational testing, would screen

out all increased risks of incapacitation or undetected skill

deterioration among pilots older than sixty.”’ 856 F.2d at

957 (emphasis added).! The Aman panel, however, ulti-

mately vacated the FAA’s denial and remanded for fur-

ther proceedings, concluding that the FAA had “failed to

set forth a sufficient factual or legal basis for its rejec-

tion of the petitioners’ claim that older pilots’ edge in ex-

perience offsets any undetected physical losses.” Jd.

ft is unclear to me just what the panel in Aman meant

for the FAA to do on remand. Given the number and

variety of tests that are available and commonly used to

measure the physical and cognitive powers of pilots—flight

simulator tests, vision and depth perception tests, hear-

ing tests, stress tests, blood tests, psychological workups,

X-rays, angiograms and EKGs—I find it difficult to believe

that there are skills or physical or cognitive abilities which

the FAA can identify as necessary for safe flying but for

which it either cannot or does not reliably test all pilots,

including 60-year-olds and regardless of whether they pilot

flights with more than thirty passengers or other flights

with fewer passengers. If it is true, however, that physi-

cal deterioration can’t be tested and measured accurate-

ly, as the panel in Aman found “substantial evidence”

to show, then it baffles me how the FAA, on remand,

Gaw as supposed to reconsider the relationship between phys-

ical skills and abilities, on the one hand, and experience

on the other. For whether, if as a pilot grows older, ex-

perience lends an edge which offsets waning skills and

abilities, necessarily depends on at least two things: (1)

how much experience the pilot has and (2) how severely

1 T would point out in passing that the FAA does not assert that

it screens out “all” risks of incapacitation in pilots of any age and

that, in fact, from time to time pilots under age 60 have had phys-

ical problems in flight.

—l4a—

physical skills and abilities have “deteriorated.” And if

one of those things can’t be reliably measured for risk,

or even spotted—‘“{A] substantial body of medical opinion

continues ‘to doubt the feasibility’ ”’ of measuring the “‘in-

cremental risk associated with . . . undetected deteriora-

tion of skills among pilots over sixty,” Aman, 856 F.2d

at 954 (emphasis added)—then balancing an intangible like

experience against undetectable or unmeasurable deteri-

oration would be some trick. The same problem, of course,

must have faced the FAA on remand in trying to weigh

the benefits of experience against its asserted concern

about the allegedly unpredictable risks of “sudden inca-

pacitation.”

The more serious difficulty, however, with the FAA’s

continuing reliance on “sudden incapacitation’’—the specter

of a pilot in the cockpit, of no matter what age, sudden-

ly stricken by a heart attack or a stroke—hasn’t much to

do with whether the incapacitated pilot, suddenly stricken,

could by dint of experience avert a crash. At that point,

the safety net obviously is not experience but the pres-

ence of one or two other qualified pilots in the cockpit.

Instead, the troubling problem with the FAA’s “‘sudden

incapacitation” justification is its premise. The panel in

Aman found substantial evidence to support the FAA’s

conclusion that current medical science cannot determine

which pilots over 60 will be most vulnerable to sudden

and incapacitating disability. But that should have been

a follow-up inquiry, not the first one. The first inquiry

should be whether there is substantial evidence, current

and valid in 1990, to support the proposition that all pilots,

age 60 and older, are significantly more prone to sudden

medical catastrophe than other pilots. For the age 60 and

out rule makes sense only if it screens for risks that are

significantly higher for all 60-year-olds than for 30, 40 or

50-year-olds. Otherwise, the rule is simply an arbitrary,

overly broad and outmoded presumption, smelling of age

discrimination, about infirmities which do not uniformly

afflict all pilots over 60 and should not be assumed to.

—1l5a—

The panel in Aman also remanded with instructions to

the FAA to ‘make sense”’ of its increasing willingness

to issue “special certificates” to younger pilots with rec-

ords of heart disease, drug abuse and alcoholism—which

conditions, like aging, can be progressive—in the face of

its stubborn refusal ever to grant exemptions from the

age 60 rule. In response, the FAA has now explained that

“present tests can predict the expected course of a known

medical deficiency” such as heart disease or alcoholism

“with sufficient accuracy to allow valid, individualized

judgments”’ but that “the same accuracy is not possible

when assessing the decrements associated with the aging

process.”’ FAA Brief at 32. The FAA, however, has not

offered any evidence to support this distinction between

the special certificates it grants to younger pilots and its

refusal even to promulgate meaningful regulations and

criteria for age exemptions for older pilots, much less to

grant an age exemption to an older pilot. And there is

no citation, either in the FAA’s brief or its latest order,

for the proposition that the symptoms of alcoholism, drug

abuse and heart disease can be monitored more closely

and reliably than the ‘decrements’ of aging. We defer

to agency expertise, where expertise has been demon-

strated, but “deference should not be equated with a

license to issue inconsistent determinations.”’ Aman, 856

F.2d 957. The pilots have plausibly alleged that the FAA’s

distinctions and exemption practices are inconsistent. The

FAA has only answered with unsupported and unconvinc-

ing assertions.

The majority acknowledges that “exactly how [the FAA’s

asserted] distinction [between aging and other conditions]

applies as a practical matter is not entirely clear to us,”

majority op. at 7, but concludes that for present purposes,

it will not require more of the FAA with respect to the

consistency of restoring stricken younger (59 and under)

pilots (suffering from alcohol abuse, drug abuse, heart con-

ditions) to duty while grounding other pilots, 60 and over,

whose records and physical condition are, by contrast,

impeccable.

—1l6a—

Ii

The FAA’s record here is more than just ‘‘disappoint-

ing.”’ Aman, 856 F.2d at 949. The agency has relied on

a seriously flawed Flight Time study even though, as the

majority points out, “various experts, even some from the

FAA, state that the study should not be relied on as de-

terminative—or even probative on the question of the con-

tinued validity of the age sixty rule.” Majority op. at n.1.

In addition, as the majority also recognizes, ‘‘the FAA’s

own study on its face may in some aspects be construed

to support the petitioners’ claims ... .” Jd. at 6. The

FAA has also relied on evidence of automobile traffic ac-

cidents involving fatalities as related to age. But again,

as the majority points out, “The connection between auto-

mobile drivers and pilots itself seems tenuous given the

pilots’ training, demonstrated proficiency, medical fitness,

etc.”” and “attempts to relate nonparallel categories of

automobile fatalities with aircraft accidents does not re-

flect ‘‘exposure.”’. Id. at 7.

The petitioners, as the majority also concedes, face a

Catch-22, if the FAA and this court require them to

prove, with statistics that reflect actual flight time in large

passenger transport planes with more than thirty pas-

sengers, that they can fly those planes as safely as pilots

who are not yet 60. For until at least one exemption has

been granted, none of the petitioners are eligible to pilot

such flights and consequently no such statistics can be

compiled. It is possible that statistics might be available

for petitioners’ flight time in the same large passenger

aircraft but carrying thirty passengers or less or cargo.

If such statistics are available, they have not been re-

ferred to by the FAA or the pilots.

In lieu of statistics, petitioners have presented impres-

sive evidence of pilots on the brink of age 60 performing

heroic deeds and saving lives where less experienced

pilots might have failed. They have also presented what

the majority concedes is “impressive expert opinion evi-

dence” that at least some experienced pilots over age 60

|

—17a—

are qualified to fly large commercial aircraft and may be

even better qualified than younger, less experienced pilots.

And, relying on figures from the National Transportation

Safety Board, they have presented evidence that licensed

pilots age 60 and older show a lower accident rate per

1,000 pilots than pilots in other age groups, although those

statistics do not reflect the number of hours flown by

members of each age group and we do not know, there-

fore, whether pilots age 60 and over fly more or fewer

hours per year than pilots in other age groups.

The majority concludes, on the basis of the foregoing,

that the FAA has presented ‘substantial evidence’”’ in

support of an absolute 60 and out rule, although it ad-

mits that it has seen “no compelling evidence that grant-

ing exemptions would increase the risk of accident ... .”

Majority op. at 8. The majority also concludes that it has

seen “‘no strong evidence that the experience of the

60-and-over pilot clearly overbears the danger of deteriora-

tion of piloting skills (or of sudden incapacitation) associ-

ated with the aging process.” Jd.

Since the FAA has refused as a matter of policy to

grant any exemptions, what the FAA and the majority

are holding, in effect, is that every airline pilot, on his

or her 60th birthday, and regardless of physical condition

or experience, becomes a significantly greater safety haz-

ard than before, even though, just one day before, he or

she was FAA certified, qualified and safe. The evidence

in this case does not warrant that conclusion. Nor does

everyday, ordinary good old common sense.

IV

tather than again urging the FAA to recognize the

need for keeping up with advanced technologies and ac-

commodating other points of view, I would vacate the

FAA’s latest order and remand for action on three fronts.

I would remand, first, for consideration of the adoption

of regulations establishing ascertainable and meaningful

—18a—

standards to govern the granting of at least some exemp-

tions to the age 60 rule. The FAA’s present regulations—

which dangle the possibility of an exemption to a pilot

who can show “why the exemption would not adversely

affect safety” or why, at least, it “‘would provide a level

of safety equal to that provided by the rule,” 14 C.F.R.

§ 11.25(5)—do not sufficiently guide the agency in exer-

cising its discretion and do not begin to provide adequate

notice to pilots about the kind of showing that would

justify an exemption. Cf. Allison v. Block 723 F.2d 631,

636-38 (8th Cir. 1983) (requiring the development of sub-

stantive standards to guide discretion); Environmental

Defense Fund, Inc. v. Ruckelshaus, 489 F.2d 584, 596-98

(D.C. Cir. 1971); Holmes v. NYCHA, 398 F.2d 262, 264-65

(2d Cir. 1968); 2 K. Davis, Administrative Law Treatise

§ 7.26 at 128-32 (2d ed. 1979). See also Morton v. Ruiz,

415 U.S. 199 (1974). Moreover, in light of the agency’s

policy of never granting age 60 exemptions, its present

regulations are a fraud.

I would also remand for a showing, by current and sub-

stantial evidence, that all pilots age 60 and over are sig-

nificantly more prone to “sudden incapacitation” than all

pilots under 60. The agency should re-examine the rele-

vant data and articulate a satisfactory explanation, ration-

ally connected to the facts, for its ongoing reliance on

‘sudden incapacitation” and for drawing a line at age 60.

Finally, I would remand, yet again, for a reasoned and

full explanation for treating requests for special medical

certificates under 14 C.F.R. § 67.19 differently than peti-

tions for exemptions from the age 60 and out rule. Cf.

Airmark Corp. v. FAA, 758 F.2d 685, 691-95 (D.C. Cir.

1985) (recognizing the caprice with which the FAA rules

on exemptions in other areas). And in that connection,

I would require the FAA to consider the possibility that

obligating pilots 60 and older to undergo more frequent

medical and skills examinations than other pilots—a techni-

que the agency already uses to monitor the condition of

pilots who have been granted “special issuances” under

—19a—

14 C.F.R. § 67.19—might provide enough accurate and up-

to-the-minute information about a pilot’s health and skills

to enable the agency to make individualized determina-

tions about the risks of letting any particular captain, 60

or older, pilot a Part 121 flight, rather than arbitrarily

and capriciously denying exemptions to all.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

—20a—

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT—WITH ORAL ARGUMENT

Date: October 31, 1990

BEFORE:

Honorable William J. Bauer, Chief Judge

Honorable Richard D. Cudahy, Circuit Judge

Honorable Hubert L. Will, Senior District Judge*

No. 89-2524

JOHN H. BAKER, COURTNEY Y. BENNETT, ROBERT

S. BOS, JOHN W. CHADICK, JACK P. CHAMBERS,

CHARLES G. CRISWELL, CHARLES H. DEMING, BUR-

TON E. DEZENDORF, et al.,

Petitioners,

V.

FEDERAL AVIATION ADMINISTRATION and JAMES B.

BUSEY. Administrator, Federal Aviation Administration,

Respondents.

Petition for Review of an Order from the Federal

Aviation Administration No. 25008 25524

This cause was heard on the record from the above

mentioned agency, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the Order of the Federal

Aviation Administration in this cause appealed from be,

and the same is hereby, AFFIRMED, with costs, in ac-

cordance with the opinion of this Court filed this date.

* The Honorable Hubert L. Will, Senior District Judge for the

Northern District of Illinois, is sitting by designation.

—2la—

Exemption No. 5052

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C. 20591

* eK KKK KK KK KOK OK OK OK OK

In the matter of the petition of

COURTNEY Y. BENNETT

et al., and

Regulatory

Docket No. 25008

et al., Docket No. 25524

for an exemption from

§ 121.383(c) of the Federal

Aviation Regulations

*

*

*

*

JOHN H. BAKER i Regulatory

*

DENIAL OF EXEMPTION

By letter dated May 1986 and supplements dated August

1986 and October 1986, Mr. Raymond C. Fay, formerly

of Haley, Bader & Potts and currently of Bell, Boyd &

Lloyd, Three First National Plaza, 70 W. Madison Street,

Suite 3200, Chicago, Illinois 60602, petitioned on behalf

of Melvin M. Aman and 38 other current and former air-

line pilots for an exemption from § 121.383(c) of the

Federal Aviation Regulation (FAR), commonly referred

to as the Age 60 Rule, to permit Mr. Aman and each of

the 38 other current and former pilots (petitioners) to con-

tinue to serve as pilots in Part 121 air carrier operations

after reaching their 60th birthday.

—22a—

Subsequent to the submission of the original petition, six

of the petitioners have requested that their names be

withdrawn and nine others elected not to petition for

review of the Denial of Exemption issued September 8,

1987 to the United States Court of Appeals for the Sev-

enth Circuit. The six petitioners who withdrew are Melvin

Aman, Charles Davenport, James Donegan, Ralph Misch-

ker, Charles Raphael, and James Williams. The nine peti-

tioners who elected not to petition to the Seventh Circuit

are William Durgan, Robert Greene, Cecil Judd, Andrew

Kruzich, James LeBel, Theodore Misselwitz, Lynn Norton,

Harry Owen and Charles Pease. Because Melvin Aman

has withdrawn as~-a petitioner, the name cited in the

future as the petitioner will be Courtney Y. Bennett, et

al.

A summary of the petition was published in the Federal

Register on July 24, 1986 (51 FR 26622), and the com-

ment period closed on August 13, 1986. By request of the

Aircraft Owners and Pilots Association, the comment peri-

od was reopened for an additional 30 days on September

29, 1986 (51 FR 34520). On September 8, 1987, the Fed-

eral Aviation Administration (FAA) issued Denial of Ex-

emption No. 4848, (Disposition Notice, 52 FR 36326, 1987).

Melvin M. Ainan, et al., petitioned the United States

Court of Appeals for the Seventh Circuit for review of

Denial of Exemption No. 4848, Petition for Review of an

Order of the FAA, Melvin M. Aman v. Federal Avia-

tion Administration, No. 87-2598 (7th Cir. 1988). The court

vacated the order denying the exemptions and remanded

to the FAA for further consideration. The court concluded

that, while the petitioners had failed to show that their

protocol, combined with existing methods of operational

testing, wou!d screen out all increased risks of incapacita-

tion or undetected skill deterioration among pilots older

—23a—

than 60, “‘the FAA failed to set forth a sufficient factual

or legal basis for its rejection of the petitioners’ claim that

older pilots’ edge in experience offsets any undetected

physical losses,” Melvin M. Aman versus Federal Avia-

tion Administration, No. 87-2598, op. cit., at 21 (7th Cir.

September 12, 1988).

In addition to the petition referenced above, on february

24, 1988, John H. Baker and 17 other current and former

airline pilots petitioned for an exemption from § 121.383(c),

(Docket No. 25524). Counsel for this group of pilots re-

quested that the FAA expedite the processing of the peti-

tion and wa. ed any interest the petitioners may have

had in adhering to the notice and comment procedures

prescribed in Part 11 of the FAR. Because of the Seventh

Cireuit’s decision in the Aman case, the FAA will con-

sider Mr. Baker’s petition in light of the comments re-

ceived in the reconsideration of the Bennett petition.

Section of the FAR affected:

Section 121.383(c) states, in pertinent part, that no

certificate holder may use any person, nor may any

person serve, as a pilot in operations under Part 121

o. the FAR if that person has reached his 60th birth-

day.

Taken from petitioners’ briefs, supplements, exhibits, and

comments submitted by individual petitioners, the appli-

cable portion of petitioners’ supportive information is as

follows: Petitioners assert that because the youngest pilots

have the highest accident rates the replacement of healthy,

experienced pilots at age 60 with younger, less experienced

pilots may have an adverse effect on safety.

The petitioners state that the tolerance of increased, but

acceptable, risks has been demonstrated by the FAA in

recent years in the great number of special issuances of

—24a—

medical certificates to pilots (under age 60) with various

medical problems, e.g., alcoholism, myocardial infarction,

bypass surgery, monocular vision, personality disorders,

strokes, and dysrhythmias. The acceptance of greater risk

in these issuances to pilots under age 60 with known pa-

thology (in some instances progressive pathology) is square-

ly at odds with the FAA’s refusal to issue exemptions

to the Age 60 Rule.

Public Comment

In an effort to implement the court’s directive, the com-

ment period was reopened for 30 days on October 19, 1988

(53 FR 41147), and comments were invited specifically on

the age versus experience issue. During the 1988 com-

ment period, approximately 178 comments were received.

In addition, petitioners filed three additional supplements

dated November 1988, January 1989, and March 1989.

A report, “The Influence of Total Flight Time, Recent

Flight Time, and Age on Pilot Accident Rates,” herein-

after referred to as the “Flight Time Study,’! was pre-

pared in 1983 by Acumenies Research and Technology,

Inc., Bethesda, Maryland, under a contract sponsored by

the Transportation Systems Center, U.S. Department of

Transportation (DOT). In the report, the author analyzes

aviation accident statistics with respect to recency of pilot

experience, total pilot experience and pilot age. A copy

of this report was placed in Docket No. 25008 for public

comment.

Numerous individual pilots who are over or nearly age

60 are in favor of granting the petition. Several comments

received from physicians are also in favor of granting the

petition. ALPA and several individuals, including airline

pilots, argue that the petition should be denied in the in-

—25a—

terest of safety. Approximately 40 percent of the favorable

comments include statements to the effect that the cur-

rent pilot shortage or the experience of older pilots out-

weighs the disadvantages associated with the aging proc-

ess. Approximately 30 percent of those concurring state

that medical tests exist to determine competence of pilots

over the age of 60. Several studies are cited which al-

legedly substantiate the positions taken. These comments

are discussed in the analysis section below.

The National Air Carrier Association, Inc. (NACA) com-

mented that the ‘Flight Time Study” cannot be used as

a basis for deciding the petitions under review. NACA

explains that the study itself states that air carrier and

commuter accidents are not included in the calculations

because the limited number of such accidents would not

appreciably affect the relative accident rate in the study.

NACA also states that “class 1, class 2, and class 3 license

holders” are lumped together as a group and that statis-

tics for class 1 medical certificate holders are not isolated.

Additionally, NACA argues that one cannot use the ex-

perience levels and accident rates of general aviation to

govern a determination involving air carrier pilots who

operate under Part 121 of the FAR.

Dr. Jefferson M. Koonce, a professor at the University

of Illinois, asserts methodological problems in the research

for the “Flight Time Study.” The points made in his com-

ment and the FAA’s responses to his proposals are dis-

cussed in the analysis section below.

The Air Line Pilots Association (ALPA) commented that

the available evidence does not make a persuasive case

that there will be no increased risk to air safety if airline

pilots age 60 and over are granted exemptions on a se-

lected basis. ALPA further states that, upon close scru-

—26a—

tiny, the data submitted by the petitioners does not sup-

port the argument that the experience of pilots age 60

and over outweighs the greater danger they present from

sudden incapacitation or otherwise diminished mental or

physical performance.

ALPA claims that experience does not prepare a pilot for

technological change. ALPA states that reports from indi-

vidual ALPA members and from the ALPA Aeromedical

Office appear to show that the older more-experienced

pilots have far more difficulty than younger less-experi-

enced pilots in accommodating to the new generation of

highly computerized aircraft with sophisticated cathode

ray tube information and flight guidance displays.

ALPA notes that the “Flight Time Study” concludes that

pilots with more than 5,000 hours of cumulative flight time

have a significantly lower accident rate than pilots with

less flight time (c.f., Figure 1). However, ALPA states,

within the more than 5,000-hour pilot group, the accident

rate begins to increase at age 50 and is highest for pilots

who are age 60 and over. The implication of this, ALPA

concludes, is that after 5,000 hours of flight time, which

airline pilots achieve relatively early in their careers, ad-

ditional flight time does not significantly improve pilot per-

formance from a safety standpoint. Also, regardless of ad-

ditional experience beyond 5,000 hours, such performance

is likely to diminish with each advancing year after a pilot

turns 50 because of the continually diminishing mental or

physical performance associated with the aging process.

ALPA summarized that there is no study available at this —

time which reliably demonstrates that the greater expe-

rience of pilots age 60 and over suffices to counter the

otherwise unacceptable increased risk of undetectable phys-

ical and mental decrements associated with the aging proc-

ess. ALPA argues that without a persuasive case, the

eae een ener rns. ee el

—27a—

FAA’s policy of denying petitions for exemptions to the

“Age 60 Rule should remain in effect. ALPA asserts that

such a policy is founded on the sound conclusion that there

is currently no protocol which eliminates all the incremen-

tal risk associated with sudden incapacitation or unde-

tected deterioration of skills among pilots age 60 and over.

ALPA supported the rationale for granting special medical

certificates to pilots otherwise disqualified by episodes of

heart disease or aleoholism. ALPA suggested that such

rationale is based on the fact that the FAA has observed

these conditions, understood their predictable history, and

has been able to develop the circumstances and conditions

under which it can issue such certificates in carefully se-

lected cases without endangering air safety. ALPA con-

cluded that although protocols can be developed to grant

special medical certificates to pilots with heart disease or

alcoholism, protocols cannot be developed to detect all of

the risk factors associated with the aging process.

Of the approximately 140 air carriers operating under

Part 121, only one questioned the validity of the rule.

That air carrier requested the FAA to ‘‘assemble suffi-

cient information to justify the current rule which may

not be justified.” (emphasis original)

These and the various comments and submissions of the

petitioners are addressed in the analysis which follows:

Section 601(aX5) of the Act states that the Administrator

is empowered to promote safety of flight of civil aircraft

in air commerce by prescribing and revising from time

to time reasonable rules and regulations (minimum stan-

dards) governing, in the interest of safety, the maximum

hours or periods of service of airmen, and other employ-

ees, of air carriers.

—28a—

Section 601(aX6) of the Act states that the Administrator

is empowered to promote safety of flight of civil aircraft

in air commerce by prescribing and revising from time

to time such reasonable rules and regulations, or minimum

standards, governing other practices, methods, and pro-

cedures, as the Secretary of Transportation may find nec-

essary to provide adequately for national security and

safety in air commerce.

Section 601(b) of the Act requires that, in prescribing stan-

dards and regulations and in issuing certificates under

Title VI of the Act, the Administrator shall give full con-

sideration to the duty resting on air carriers to perform

their services with the highest possible degree of safety

in the public interest.

Section 601(c) of the Act states that the Administrator

from time to time may grant exemptions from the require-

ments of any regulation prescribed under Title VI (Safety

Regulation of Civil Aeronautics) if he finds that such ac-

tion would be in the public interest.

The so-called “Age 60 Rule” (issued December 1, 1959

effective March 15, 1960) was adopted in recognition oi

the Administrator’s responsibility to regulate air com-

merce in such a manner as to best promote public safety.

The Age 60 Rule is based on the potential risk to safety

resented by the use of pilots, aged 60 or over, in Part

121 air carrier operations. Among the reasons for adopt-

ing the Age 60 Rule are certain factors, in addition te

risks of sudden or subtle incapacitation, which, with some

variations, are applicable to all aging individuals and are

not susceptible to precise measurement. Some of these

safety factors relate to loss of ability to perform highly-

skilled tasks rapidly; to resist fatigue; to maintain physical

stamina; to perform effectively in a complex and stressful

—29a—

environment; to apply experience, judgment and reason-

ing rapidly in new, changing, and emergency situations;

and to learn new techniques, skills, and procedures.

The Age 60 Rule, because of its controversial nature, has

been subjected to frequent judicial scrutiny. As early as

1960, the basic rule was challenged in litigation. It has

been the subject of numerous suits since that time, many

of which have focused on the agency’s policy of not grant-

ing exemptions from the rule. In each instance, the rule,

its legality, or the FAA’s refusal to grant exemptions to

the rule have been upheld by the courts. A reexamina-

tion of these many cases, including those cited by the peti-

tioners, would serve little purpose.

As an out-growth of hearings conducted by the House

Select Committee on Aging, Public Law 91-171 was ap-

proved on December 29, 1979. This legislation required

the National Institute on Aging (NIA), part of the Na-

tional Institutes of Health (NIH), to conduct a study to

determine whether the Age 60 Rule was medically war-

ranted, whether mandatory retirement at any specific age

was medically warranted, and what the effects were of

aging on the ability of individuals to perform as pilots.

The NIA, in its extensive analysis, found no feasible safe-

ty alternative to the rule. The panel which conducted the

review, while indicating that it did not find any identifi-

able medical significance to the point in time when a per-

son reaches age 60, nevertheless found abundant and per-

suasive evidence that, among pilots as well as others,

disease, disability, and death rates increase steeply dur-

ing each half-decade beyond the age of 50. They noted

that decline in cognitive function (information processing

and other intellectual functions) with age represents an-

other category of impairment, and, if undetected, could

—30a—

compromise pilot performance. The panel also noted that

currently this aspect of the medical appraisal is the least

developed. The panel concluded that age-related changes

in health and performance influence adversely the capabil-

ity of increasing numbers of individuals to perform as

pilots with the highest level of safety. Additionally, the

panel could not identify the existence of a medical or per-

formance appraisal system that can single out those pilots

who would pose the greatest hazard because of early or

impending deterioration in health or performance.

As noted above, approximately 40 percent of the com-

ments in favor of granting the petition included state-

ments to the effect that the current pilot shortage or the

experience of older pilots outweighs the disadvantages

associated with the aging process. No empirical evidence

was Offered to substantiate these comments. Approximate-

ly 30 percent of those in favor of granting the petition

indicated that medical tests exist to determine competence

of pilots over the age of 60. Again, no specific protocols

or tests were offered in support of this proposition. Sev-

eral studies were cited which allegedly substantiated these

positions. However, when pursued, either no study was

located or the comment was found to be general in nature

amounting to nothing more than an unsupported assertion.

With regard to the NACA comments on the utility of the

“Flight Time Study” in this matter, the FAA cannot

agree. The FAA finds that the “Flight Time Study”’ pro-

vides a unique and valuable set of data which, if analyzed

as is done herein, can provide valuable insight into human

performance changes as a function of age. Air carrier and

commuter accidents were not included so that the data

would be relatively homogeneous in considering only one

type of operation (general aviation), not because of their

small numbers. Because of the statistically small amount

—3la—

of air carrier and commuter accidents, however, it is clear

that including these data would not substantially alter the

results of the study. While it is true, as NACA notes,

that all classes of license holders are lumped together in

one part of the “Flight Time Study,” another part segre-

gates data applicable to class 3 license holders. Distin-

guishing these data allows us to focus on class 1 and class

2 license holders taken together. These are very valuable

data, for it is this pool of pilots over 60 which petitioners

seek to tap.

Through their many submissions to the court and to the

FAA, petitioners argue that the loss of experienced pilots

to the airlines because of retirement mandated by the Age

60 Rule is resulting in a shortage of pilots, which is fore-

ing the airlines to lower their standards and to hire pilots

with less experience. Thus, the petitioners argue, grant-

ing exemptions to the Age 60 Rule would ease this short-

age and increase safety. In addressing this issue, the

Court of Appeals concluded that, although the petitioners’

evidence was only “suggestive,” the FAA had failed to

set forth a factual or legal basis for its rejection of the

petitioners’ claim that older pilots’ edge in experience off-

sets any undetected physical losses.

The FAA does not agree with petitioners’ assertions. The

FAA concurs with ALPA, who argues that the experience

of pilots age 60 and over does not outweigh the danger

they present from sudden incapacitation or otherwise di-

minished mental or physical performance. ALPA states,

and the FAA concurs, that the accident rate among pilots

begins to increase at age 50 and is highest for pilots who

are age 60 and over. The implication of this is that after

5,000 hours of flight time, which airline pilots achieve

relatively early in their careers, additional flight time does

—32a—

not significantly improve pilot performance from a safe-

ty standpoint. At some point, the law of diminishing re-

turns comes into play. Once a pilot achieves a certain level

of expertise, additional flight time will not significantly

improve pilot performance. Also, regardless of additional

experience beyond 5,000 hours, such performance is like-

ly to diminish with each advancing year after a pilot turns

50 because of the continually diminishing mental or phys-

ical performance associated with the aging process.

Petitioners’ third supplement filed on November 18, 1988,

states that the NTSB “has recently conducted a study

of releasable accident/incident records from 1983 to pres-

ent.” Petitioners assert that there were ‘926 accidents

attributed to pilot inexperience as a cause or factor’ of

the accidents. Petitioners cite 13 air carrier accident briefs

where inexperience is listed as a cause or factor. Peti-

tioners state that the average age of the pilot in com-

mand of the air carrier accidents was 35.4 years.

The study to which petitioners refer is actually a simple

data base search which was conducted by the Bureau of

Safety Programs, Accident Data Division of the NTSB,

at the request of Mr. Raymond Fay of Bell, Boyd &

Lloyd, counsel for the petitioners for exemptions.

Petitioners’ Exhibit 97 does not reflect what petitioners

represent in the text of the third supplement. The peti-

tioners include two NTSB briefs which are not referenced

in their argument. In any event, petitioners attempt to

suggest that pilot inexperience is the sole cause or fac-

tor of the 926 accidents by stating:

there were 926 accidents attributed to pilot inexperi-

ence as a cause or factor. . . . (emphasis supplied)

The statement is misleading. The “‘pilot inexperience” to

which petitioners refer is only one of many causes or fac-

—33a—

tors that the NTSB may list in its accident investigations.

For example, the Air Florida accident on January 13,

1982, includes 13 “:ctors and 5 causes as contributing to

the accident. Inexperience is listed as only one factor out

of 13 and is not even listed as a cause of the accident.

In fact, of the 13 air carrier accident briefs cited by the

petitioners, the average number of causes and factors

listed by the NTSB in these accidents is over 9. The few-

est number of causes and factors listed in the NTSB ac-

cident briefs is 3, and 1 accident brief has as many as

17 causes and factors listed by the NTSB. Moreover, the

petitioners fail to explain the difference between a “cause”

and a “factor” as defined by the NTSB. The NTSB de-

fines a cause as:

The individual condition or event or the collective se-

quence of conditions and/or events that most probably

caused the accident to occur. Had the individual con-

dition or event been omitted from the sequence the

accident would not have occurred.

The NTSB defines a factor as:

A related condition or event which existed or oc-

curred coincident with the conditions and/or events

that most probably caused an accident but which may

or may not have contributed significantly to the ac-

cident. The omission of the factor from the occurrence

would not necessarily have prevented the accident.

A factor is similar to a cause in that it adds to or detracts

from an accident but differs in a sense that it can be

removed from the accident and the accident would still

have occurred. Unlike a factor, the removal of a cause

from an accident would eliminate the accident altogether.

Petitioners show 926 accidents where “pilot inexperience”’

is listed as a cause or factor. However, in only one third

of the 926 is “pilot inexperience”’ listed as a cause. Of

—34a—

the 13 air carrier accidents petitioners reference, only 2

had pilot inexperience listed as a cause. Of these 2, the

average age of the pilot in command was 46.5 years.

Additionally, the petitioners fail to explain the several

categories of inexperience that the NTSB uses in the ac-

cident/incident briefs. Specifically, the NTSB has 13 cate-

gories of inexperience that can either be a cause or fac-

tor of an accident. For example, the NTSB lists “lack of

familiarity with geographic area” as an inexperience cate-

gory. The listing of this category in an accident brief does

not tend to prove that a particular pilot is inexperienced.

In fact, of the 13 briefs cited by the petitioners, the aver-

age hours of flight time for the pilots involved is 5,838,

which is hardly indicative of inexperience.

Petitioners’ third supplement also states that ALPA has

“repudiated” the “unsupported” and apparently “unautho-

rized’ comment of Richard B. Stone, dated October 29,

1986 (FAA Docket No. 2-15; Jt. App. p. 297), in which

Mr. Stone stated that a pilot’s skills deteriorate with age.

Petitioners rely upon a letter sent from ALPA President

Henry A. Duffy, to petitioner Eugene W. Garges, Jr. in

which President Duffy states his opinion regarding dimin-

ishment of professional expertise at age 60.

It is clear that President Duffy’s letter on its face, does

not repudiate or otherwise suggest that the comments of

Mr. Stone were unauthorized or unsupported by ALPA.

In fact, telephone conversations FAA personnel had with

attorneys from ALPA’s legal department on May 10, 1989,

revealed that ALPA stands behind their comments of Oc-

tober 29, 1986, and November 16, 1988.

In their third supplement, petitioners cite a report by

Mertens and Boone at the 1988 annual meeting of the

Aerospace Medical Association. This report described work

—35a—

that further examined the prediction of complex perfor-

mance from physiological and psychological measures. Peti-

tions state that ‘‘the Federal Aviation Administration has

conducted scientific studies to determine whether tests

exist to predict pilot performance by means of physio-

logical and psychological measures,” and that “Dr. Henry

Mertens reported on the results of those studies.” A tran-

scription of Dr. Mertens’ presentation was attached as

petitioners’ Exhibit 94. Included in the public docket is

a copy of Dr. Mertens written report, prepared for pre-

sentation to the Aerospace Medical Association.

Dr. Mertens reported on the results of one study involv-

ing a total of 30 subjects: 16 men in a 30 to 39 years age

group and 14 men in a 60 to 69 years age group. Using

data gathered in 1986 for the medical screening of sub-

jects performing the Civil Aeromedical Institute’s Multi-

ple Task Performance Battery (MTPB) in another study,

Dr. Mertens selected predictor variables including distant

and near visual acuity, diastolic and systolic blood pres-

sure, pulmonary function indices, scores on the informa-

tion and logic subscales of the Shipley Institute of Liv-

ing Scale, and the WAIS Digit Span Test. The latter two

tests are, respectively, measures of intelligence quotient

(IQ) and short-term verbal memory. The criterion measure

was an overall index of performance in control conditions

by fully rested subjects measured by the MTPB.

The MTPB involves the monitoring of warning lights,

monitoring of meters, mental arithmetic, target identifica-

tion, tracking, and problem solving in combinations that

vary workload. Not surprisingly, IQ and short-term mem-

ory measures, aS opposed to age, were found to correlate

best with the MTPB scores. Dr. Mertens, in his written

report however, noted that these results contrasted with

his previous study (also with Dr. Boone in 1983) where

—36a—

visual acuity was the best predictor of MTPB perfor-

mance (emphasis added). Given this inconsistency, Dr.

Mertens notes that the differences may be related to dif-

ferences in age composition of subject samples and sug-

gests that both studies indicate the value of IQ, pul-

monary, and acuity data for prediction of MTPB perfor-

mance.

Obviously, the screening of IQ, pulmonary function, visual

acuity, and short-term memory does not provide an ac-

ceptable substitute for the broad-spectrum safety of the

Age 60 Rule as applied to pilots in air carrier operations.

Dr. Mertens says that “the MTPB tasks have high con-

tent validity and high face validity for aviation.’”’ Never-

theless, the MTPB has not been evaluated as a predictor

of actual pilot performance in air carrier cockpits. There-

fore, even though Mertens’ Study suggests ability to pre-

dict MTPB performance, given knowledge of certain vari-

ables, it cannot be said that these same variables predict

pilot performance.

The number of test subjects in Dr. Mertens study was

statistically insufficient to provide other than suggestions

for further research. Firm conclusions regarding age and

other predictors of petformance should not be drawn be-

cause of the large number of unobserved, hence, uncon-

trolled, ‘“‘within-subjects” variance sources, as demonstrated

by comparison of results with the researcher's own earlier

study.

Petitioners state that ‘“‘Dr. Mertens noted that ‘some in-

dividuals maintain a high level of performance with in-

creasing age, noting recent research of Castelo-Bronco (sic)

that psychomotor performance of older pilots, some of

whom were over age 60, was approximately equal to that

of younger pilots in their 30’s.’”” Dr. Mertens’ paper and

—37a—

presentation actually stated, ‘Laboratory studies also fre-

quently show that, although average performance may de-

cline with age, some individuals maintain a high level of

performance and that variability among individuals in per-

formance may increase with age.” The Age 60 Rule, in

part, reflects concern about the decline in average per-

formance with age and about the increasing variability

among individuals. Variability is included among the fac-

tors that make difficult the separation of individuals from

the average.

Petitioners state that Dr. Mertens “discounted certain

studies” on the relation of age to performance which failed

to control for the health of subjects, saying that these

findings were “inapplicable” to groups that are highly

selected and controlled for health. . . .” Dr. Mertens ac-

tual statement was less supportive as follows: “Although

many laboratory studies of the relation of age to perfor-

mance have shown age-related declines in tasks . . . most

of these experiments did not control for the health of sub-

jects and it is difficult to generalize those findings to

groups that are highly selected and controlled for health

The Mertens and Boone study provides useful informa-

tion and fits into the matrix of applicable research con-

ducted by the FAA and other institutions. It further il-

lustrates the FAA’s desire to stimulate research interest

in potential alternatives to the “Age 60 Rule” and the

development of data bases that provide a sound scientific

rationale for assessing the validity of alternative proposals

to the existing rule. It is evident that some medical or

p°ychomotor measurements may be predictive of success

in the performance of some specifically defined psycho-

motor tasks. Neither individually nor in sum, however,

do these findings provide an alternative mechanism to the

—38a—

use of an age-related rule to reduce the risk of a broad

range of human decrements or failures that could affect

air carrier safety.

In their fourth supplement dated January 1989, petitioners

cite three National Transportation Safety Board (NTSB)

reports which petitioners believe further substantiate their

argument that experience offsets or outweighs the decre-

ments associated with the aging process.? Petitioners ref-

erence one NTSB conclusion in the Continental Flight

1713 Accident Report and submit as follows:

The captain (age 43) was not experienced in the DC-9,

and the first officer was not experienced in the DC-9

or in any swept-wing turbojet airplane . . . Due to

the relatively low experience levels of both crew-

members in the DC-9, the pairing of these pilots was

inappropriate.

The relevant portion of the NTSB report reads as follows:

Although the captain and the first officer were ex-

perienced aviators, the captain was not experienced

in the DC-9, and the first officer was not experienced

in the DC-9 or in any swept-wing turbojet airplane.

(emphasis supplied)

The petitioners continue by citing the resultant NTSB rec-

ommendation, which reads as follows:

Establish minimum experience levels for each pilot

in command and second-in-command pilot, and require

the use of such criteria to prohibit the pairing on the

same flight of pilots who have less then the minimum

experience in their respective positions.

As a result of the NTSB recommendation, the FAA is-

sued Air Carrier Operations Bulletin (ACOB) No. 8-88-1—

Flight Crewmember Experience and Scheduling, which

states:

—39a—

Although there is no regulatory réquirement that an

air carrier schedule an experienced flight crewmem-

ber with an inexperienced crewmember, we believe

that, from a safety standpoint, it would provide for

a higher level of safety to do so. We realize, of

course, that in some cases it may not be practical

nor possible to do so. For example, a newly-certifi-

cated air carrier may consist of flight crewmembers

who are all new to both 121 operations and to the

type of airplane they are operating. Also, an air car-

rier may initiate a new type of operation (e.g., long-

range international operations) in which the flight

crewmembers may be experienced on the type of air-

plane but have little or no experience in the type of

operation.

Since inexperience is an absolute characteristic in any pro-

fession, the FAA encourages the combining of inexperi-

enced pilots with experienced pilots. The FAA has recog-

nized that pairing two inexperienced pilots is undesirable.

Petitioners do not disclose that the captain in the Con-

tinental 1713 accident, though a newly-upgraded captain

in the DC-9, had flown with Continental since 1969 (ex-

cept for a 3-year period from 1983 to 1986) and had ac-

cumulated approximately 12,125 total flying hours, in-

cluding 3,111 hours as first officer in the B-727 and 133

hours as first officer in the DC-9. This captain was not

an inexperienced pilot.

There are circumstances when a pilot may not have ex-

perience in a type of airplane or operation; for example,

when an airline begins service with a new type of air-

plane, many pilots will be inexperienced in the new equip-

ment but very experienced as pilots. Frequently, the most

experienced and most senior (potentially oldest) pilots in

an airline will elect to fly an airplane type which has been

newly-placed in service, and in which they, like the Con-

tinental pilots, are inexperienced.

—40a—

Petitioners assert that the replacement of experienced

pilots with younger, less experienced pilots has an adverse

impact on aviation safety. Petitioners submissions seem

to suggest that these younger, less experienced pilots lit-

erally replace the pilots who cease flying at age 60. This

is simply not true. Pilots normally commence their careers

with an air carrier as flight engineers. They advance in-

to first officer positions after they have gained sufficient

experience and then progress to captains.

Petitioners further suggest that the captains who cease

flying as a result of the rule are being replaced by inex-

perienced captains. Again, this is simply not true. The

FAA has sufficient safeguards to ensure that a potential

captain is competent to assume command functions. The

normal progression in airlines has been for first officers

to be upgraded to captain after gaining sufficient experi-

ence. Part of the upgrading process is the initial operating

experience (IOE) required by § 121.434. Among other

things, § 121.434 requires the upgrading captain to suc-

cessfully fly with an experienced check airman and also

submit to observation by an FAA inspector before assum-

ing unsupervised command duties. The FAA inspector’s

observation of a flight evaluation of a pilot for the posi-

tion of PIC gives the FAA an opportunity to evaluate

the end product oi an air carrier’s training program dur-

ing normal operating conditions. These observations also

provide an insight into the competence of the air carrier’s

training program. During the observation, the FAA in-

spector also evaluates the check airman’s performance

with respect to preparing a pilot to qualify as PIC and

to assume the pilot in command responsibilities of air car-

rier operations. The FAA inspector’s observation of an

initially qualifying or upgrading PIC is one of the best

opportunities to check both the quality of subject train-

ing programs and the performance of the pilots who have

—4la—

completed the training. The IOE observation is an addi-

tional safeguard for ensuring that a pilot is ready and able

to assume command functions.

The petitioners cite another NTSB report involving the

crash of an Air Florida Boeing 737 in Washington D.C.

on January 13, 1982, but fail to explain how this accident

report supports their petition. Both the captain and first

officer were experienced pilots. The captain’s flying ex-

perience before his employment with Air Florida included

flying light aircraft, multiengine piston-powered aircraft,

and turboprop-powered aircraft. All of his jet transport

training and experience was obtained with Air Florida.

before qualifying as a B-737 captain, his jet flight ex-

perience consisted of about 1,200 hours as a first officer

on DC-9 and B-737 aircraft. Since upgrading to captain,

he had accumulated about 1,100 hours. The first officer’s

experience before his employment with Air Florida was

gained as a military fighter pilot. His experience in jet

transport-type aircraft consisted of about 1,000 hours as

a first officer in the B-737 aircraft. Neither, however, had

extensive experience in winter operations. It should be

noted that the NTSB cited wing ice, improper planning,

not using anti-ice/de-ice system, and failure to perform

aborted takeoff as the probable cause of the accident.

By citing the Air Florida accident, it appears that peti-

tioners are claiming that age has some correlation to cer-

tain types of operational experience, (e.g., winter opera-

tions). This is not true. Any pilot, regardless of age, who

has spent a flying career in a specific geographical area,

(e.g., semitropical), would be lacking experience when

transferring to a geographic area like Alaska or the

Northeastern United States. Flying is not unlike many

professions: even the most experienced professionals may

be lacking in a particular specialty within their discipline.

From the accident cited, it would appear that training pro-

—42a—

grams in winter operations along with pairing of pilots

(more experienced with less experienced) is advantageous

to safety but, without more, bears no relation to age.

Petitioners reference one NTSB conclusion in the Air New

Orleans Flight 962 Accident Report and quote the report

as follows:

The Safety Board believes that the flightcrew’s oper-

ating experience in this airplane type was limited and

contributed to the accident sequence. The lack of ex-

perience of the first officer is especially relevant... .

At the time of the accident, the captain [age 29] had

accumulated only about 47 hours of flight experience

in the BAe-3101, excluding 13 hours of training and

he had received his type rating only 2 weeks before

the accident. The first officer [age 27] had accumu-

lated less than 15 hours of flight experience in the

aircraft, excluding 4 hours of training, and had com-

pleted a competency check only 1 week before the

accident. The Safety Board believes that this limited

experience probably contributed to the accident.

Petitioners fail to include the following statements of the

Board regarding pilot experience:

The flightcrew had considerable recent experience in

the Beech Be-99, another twin-engine turboprop air-

plane with different take-off power setting proce-

dures. This difference may have contributed to the

failure of the crew to properly set the RPM levers

to the takeoff position before take-off. . . . In sum-

mary, the Safety Board believes that the flightcrew’s

failure to advance the RPM ievers to the take-off

position resulted from the combined adverse effects

of (1) their limited familiarity with the BAe-3101 air-

plane because of their low time-in-type; (2) the habit

interference which resulted from their recent and ex-

tensive experience in the BE-99 airplane which uses

RPM control procedures; and (3) their efforts to re-

spond expeditiously to their ATC clearance for takeoff.

—43a—

Additionally, in the Air New Orleans accident, the NTSB

reports the following relevant to pilot experience:

The captain’s total flying time was approximately

7,500 hours. .. . At the time of the accident, his total

time in turboprop airplanes was about 4,000 hours,

60 hours of which were in the BAe-3101 at the time

of the accident. . . . The first officer’s total flight time

. was about 3,000 hours. His total time in turbo-

prop airplanes was about 600 hours, 18 of which were

in the BAe-3101. The balance of his turboprop time

was in the Beech BE-99.”

The captain and first officer in the Air New Orleans ac-

cident were not inexperienced pilots. As noted above,

there are circumstances when a pilot may not have ex-

perience in a particular type of aircraft but still be a very

experienced pilot. This familiarity in aircraft type is not

shown to be related either to age or general experience.

The conclusions reached by the FAA regarding the anal-

ysis of the Continental Flight 1713 accident are applicable

to the Air New Orleans accident as well.

In their fourth supplement, petitioners state that recent-

ly United Airlines, Inc. (UAL) has reduced its minimum

qualifications for flight officer employment to 350 hours

in fixed-wing aircraft. By citing UAL’s employment quali-

fications, petitioners are attempting to show that the level

of experience among pilots is decreasing. Petitioners have

attached a copy of UAL’s Flight Officer Employment Bul-

letin as an exhibit. Apparently, petitioners would like it

believed that the reduction to 350 hours was caused by

the supposed shortage of pilots which petitioners attribute

to the Age 60 Rule. Petitioners fail to mention that the

UAL flight time requirements are the result of an agree-

ment which occurred in the mid-1970’s between that com-

pany and the Department of Justice following an investi-

gation by the Federal Government of alleged employment

—44a—

discrimination. The ‘recent reduction’’ in flight time re-

quirements has been in effect for over 10 years. The FAA

knows of no aviation accidents which have occurred as a

result of UAL’s minimum flight time hiring requirements.

Petitioners claim that rigid enforcement of the Age 60

Rule reduces the average experience level among active

pilots. As stated above, inexperience is an absolute char-

acteristic in any profession. Granting exemptions to the

Age 60 Rule or otherwise increasing the age limitation

(e.g., to age 62) would not eliminate an experience short-

age. Such a measure would only serve as a device which

would temporarily defer a possible “shortage.’’ Once those

who are granted exemptions cease flying (e.g., two years),

the identical problem which petitioners propose to solve

by the exemption process returns.

This concept is better understood by analyzing the num-

ber of pilots who will cease flying as a result of the Age

60 Rule. Future Aviation Professionals Association (FAPA)®

projects the number of pilots who stop flying per year

will increase dramatically until the year 2000 when it will

eventually level off and then decrease (See Figure 10).

In 1988, approximately 500 pilots, who reached the age

of 60, discontinued Part 121 flying. FAPA projects the

following as a result of the rule:

No. of

Retirements

Year (to nearest 100)

1990 700

1992 1000

1994 1300

1996 1500

1998 1800

2000 1900

2002 1800

2004 1200

—45a—

Assuming every airline pilot applies for and receives an

exemption for two years or if the rule is increased by

two years, then FAPA’s projections would change to the

following:

No. of

Retirements

Year (to nearest 100)

1990 0

1992 700

1994 1000

1996 1300

1998 1500

2000 1800

2002 1900

2004 1800

2006 1200

Assuming every airline pilot applies for and receives an

exemption for five years or if the rule is increased by

five years, then FAPA’s projections would change to the

following:

No. of |

Retirements

Year (to nearest 100)

1990 ()

1992 0

1994 0

1995 700

1997 1000

1999 1300

2001 1500

2003 1800

2005 1900

2007 1800

2009 1200

—46a—

If one accepts FAPA’s projections (See Figure 10), a pilot

shortage for the 1990’s is possible. However, there is no

relationship between the assumed shortage and the Age

60 Rule. The granting of exemptions or otherwise raising

the maximum age beyond 60 will not influence a pilot

shortage other than deferring it for a limited amount of

time. It should be noted that these projections assume

that all of the pilots would continue flying in the absence

of the Age 60 Rule. The projections do not take into ac-

count the number of pilots who would either be medical-

ly disqualified or who would willingly enter retirement

at age 60.

In their fifth supplement dated March 1989, petitioners

cite three incidents which they suggest further support

their arguments:

1. On February 24, 1989, United Airlines flight $11,

a Boeing 747, experienced an explosive decom-

pression while en route from Hawaii to New

Zealand. The pilot in command of the airplane was

59 years old and less than one month from his

60th birthday. The flight involving the decompres-

sion was his second-to-last flight before retire-

ment.4

2. On March 1, 1978, Continental Airlines flight 603,

a Douglas DC-10 overran the departure end of

runway 6R at Los Angeles International Airport

following a rejected takeoff. As the aircraft

departed the wet runway, the left main landing

gear collapsed and fire erupted from the left wing

area. Of the 184 passengers and 14 crewmembers

aboard, 2 passengers were killed and 2& passen-

gers and 3 crewmembers were seriously injured

during the evacuation of the aircraft.5

3. On May 21, 1978, United Airlines flight 35, a Bue-

ing 747 experienced a power loss in three of four

engines while descending into Honolulu. The pilot

—47a—

in command of the airplane retired approximate-

ly two months later after reaching his 60th

birthday.®

Apparently, petitioners cite these incidents as examples

of pilots who are removed from flight status by the Age

60 Rule notwithstanding their capabilities. Apart from the

questionable relevance of these incidents, the FAA can

not base its decision to grant or deny exemption petitions

to the Age 60 Rule on isolated commendable acts. The

FAA must make its decision based upon the totality of

evidence available to answer the safety implications of

aging. The evidence that the FAA considers probative

is that which tends to establish psychophysiological be-

havioral patterns for all pilots across ail age cohorts, not

that which reflects isolated commendable acts involving

one flightcrew.

The FAA agrees that experience can be helpful in ab-

normal or emergency situations. The pilot of UAL flight

811 was able to land his aircraft safely following a decom-

pression. This action primarily reinforces Part 121 train-

ing requirements. Simply stated, the UAL FAA-approved

training program worked as planned. Training is required

for all crewmembers regardless of age and is a function

of the position held. The pilot in command of an airplane

operated under Part 121 is required to undergo exten-

sive emergency training as part of initial and recurrent

training programs and also to demonstrate knowledge,

skill, and judgment during required proficiency checks.

What the pilot of UAL flight 811 did would be expected

of any captain; that is, to draw on his training, knowledge,

skill, experience, and judgment to safely land the airplane.

A similar occurrence on April 28, 1988, involving a Boeing

737 operated by Aloha Airlines, also resulted in a safe

landing. That flight landed at Kahului Airport on Maui

—4fa—

following a rapid decompression and loss of a large por-

tion of the fuselage skin. The captain of that airplane was

42 years old and the copilot had just turned age 36.

Petitioners have relied on the testimony of a witness (re-

tired Pan American Captain Sam Enfield) at hearings

before the Committee on Public Works and Transporta-

tion’ for the facts surrounding the Continental flight 603

accident on March 1, 1978. Petitioners assert that the pilot

in command of Continental Flight 603 o# March 1, 197%,

responded to a “severe equipment malfunction” within 1.7

seconds because of his experience. Captain Enfield made

statements which are unsubstantiated by the NTSB acci-

dent report. Specifically, Captain Enfield testified:

When the plane was rolling down the runway in take-

off at approximately 135 knots, they encountered a

severe equipment malfunction as a wheel and two

tires failed and braking systems faltered. Within 1.7

seconds, Captain Hershe responded fully to the emer-

gency, reversing his engines and bringing the plane

to a halt on the wet runway.

The NTSB report states that, “Although V-1 speed is

designed to be the go-no-go decision speed in event of an

engine failure, the Safety Board believes that pilots have

come to regard V-1 as the go-no-go decision speed for any

anomaly during the takeoff roll. However, the calculated

V-1 speed, by current definition and certific: tion stan-

dards, is valid only for circumstances in which the air-

craft has its full braking capability. Furthermore, since

the aircraft’s performance data were obtained through

testing on dry runways, there is no assurance that the

current concept is adequate when the coefficient of brak-

ing is reduced on a wet surface.” The report concludes

that at the time of the accident, “the runway was wet,

but there was no standing water.” Finally, the report

—49a—

states that, “in this accident, the captain heard a loud

metallic bang and the flight data recorder indicated that

this occurred 1.2 seconds before the aircraft reached V-1

speed. The captain was, therefore, faced with the need

for immediate action. He had no time to evaluate the sig-

nificance of the loud bang and vibration if he was to suc-

cessfully reject the takeoff. However, it became evident

during the Board’s investigation that the noise and vibra-

tion were associated with a tire failure and that the air-

craft could undoubtedly have been flown off the runway

successfully.”

Petitioners state that the pilot in command of UAL flight

35 on May 21, 197%, by virtue of his skill and experience,

was able to operate the aircraft (following power loss on

three of four engines) and bring it to a safe landing at

Honolulu. No NTSB accident report was available, but

the incident report (FAA Form &020-27) filed following

the occurrence states that the FAA attempted to obtain

flight deck crew statements but was not able to do so.

Further, investigating teams which were sent from UAL,

Pratt and Whitney, and Boeing were ‘‘unable to duplicate

the engine condition; No. 1 engine was changed in HNL

(Honolulu) because of over temperature, Nos. 2, 3, and

4 engines were changed in SFO (San Francisco), which

indicates that (subsequent to the landing at Honolulu) the

aircraft was successfully flown back to San Francisco

without incident before the change (of those three en-

gines)).”’ :

The FAA can see no evidence that experience was a de-

termining factor in the success of this flight. Since this

occurrence took place over 10 years ago, additional infor-

mation simply could not be found. It is apparent from the

above information that the evidence is not available to

the FAA which would indicate the full extent of the flight

—50a—

deck crew involvement in the incident. A copy of FAA

Form 8020-27 has been placed in Docket No. 25008.

In any event, petitioners continue to submit material

which is based upon isolated incidents. As stated above,

the FAA cannot base its decision to grant or deny exemp-

tion petitions to the Age 60 Rule on isolated commendable

acts. The FAA must make its decision based upon the

totality of evidence available to answer the safety implica-

tions of aging. The evidence that the FAA considers pro-

bative is that which tends to establish psychephysiological

behavioral patterns for all pilots across all age cohorts,

not that which reflects isolated commendable acts involv-

ing one flightcrew.

Petitioners’ Methodology

Petitioners have relied heavily on data contained in peti-

tioners’ Exhibit 72.8 These data are used to support the

petitioners’ arguments that older pilots appear to have

fewer accidents than younger pilots. To understand why

these data appear to show this, the limitations of peti-

tioners’ data and analytical methods must be carefully con-

sidered. The FAA has used these same data to construct

Figure 2.

The petitioners’ pilot population data are taken from the

annually updated FAA Statistical Handbook of Aviation,

Table 7.10. These data tabulate, by age group and highest

category of pilot certification held, the estimated active?

population of student pilots, private pilots, and pilots who

hold commercial or airline transport pilot certification.

Petitioners have elected to use only the commercial and

airline transport pilot data for their study.

Petitioners’ accident data have apparently been obtained

from the NTSB, though no specific source document has

——ti(‘(‘é~*S

—5la—

been cited. The FAA assumes that these accident data

represent the general aviation accidents incurred by pilots

of appropriate respective age groups during the time of

interest and that the pilots held commercial or airline

transport pilot certification at the time of the accident.

To illustrate one difficulty with petitioners’ methods, the

FAA used the data from the second column of petitioners’

Exhibit 72 to construct Figure 3, which represents the

average number of active pilots (per year) who hold com-

mercial or airline transport pilot certificates in each age

group. Note the large number of pilots in the 60-plus age

group. This is apparently the result of petitioners’ use of

pilot certificate data rather than an actual count of pilots

who are flying for compensation or hire.

Once a pilot certificate is granted, it is granted for life

(unless revoked for cause by FAA). Commercial pilot cer-

tification and airline transport pilot certification represent

higher demonstrated skill levels than student or private

pilot certification. But there is no requirement to hold any

higher than a class 3 medical certificate (biennial medical

examination) to exercise, as a private pilot, the privileges

of a pilot certificate in flying even the largest, most com-

plex jet aircraft, as long as the pilot does not fly for com-

pensation or hire. To carry persons or property for com-

pensation or hire, on the other hand, one must possess

at least a commercial pilot certificate and have passed at

least a class 2 medical examination within the past year.

Serving as pilot in command in operations conducted un-

der Part 121 and certain operations conducted under Part

135 of the FAR (airline and commuter operations and

commercial users of large aircraft) requires an airline

transport pilot certificate and a current class 1 medical

certificate. Unfortunately, we do not have a data base that

provides the number of active pilots who flew for the

—52a—

airlines over a given time period. There is the data base

on pilot skill certification used by the petitioners and the

data base developed in the “Flight Time Study.” The

FAA believes that an analysis of the “Flight Time Study”

data sheds more light on the question of age-related ac-

cident propensity than the analysis offered by the peti-

tioners, as explained below.

Petitioners’ Exhibit 72 employs an analysis method which

compares accident rates by age group for pilots for the

period from 1982 to 1985. These data appear to indicate

a below average accident rate for pilots in both the

5o-year old to 59-year old age group and the 60-plus age

group.

What petitioners’ statistics reveal appears to be sug-

gestive, but what they conceal is vital. Petitioners’ num-

bers are based upon the total number of active pilots ana

the total number of accidents. They do not take into ac-

count the amount of miles or hours flown (i.e., exposure)

by each age cohort. At first glance, it would appear that

the pilots in the 60-plus age group have a beiow average

accident rate since they make up 9.64 percent of the total

pilot population, but are responsible for only 8.76 percent

of the total number of accidents. However, these statistics

are of little significance since they do not show the per-

centage of flying done by the 60-plus age group. If we

compare the number of hours or miles flown by the 60-

plus age group, it is possible that we would come up with

a totally different conclusion. If, for example, the pilots

in the 60-plus age group contributed to 3.0 percent of the

total amount of flying, they would have a substantially

higher than average accident rate since they are respon-

sible for &%.47 percent of the total number of accidents.

Little significance can be attached to what petitioners’ Ex-

hibit 72 shows because it does not show the percentage

<<

of hours or miles flown compared to the percentage of

accidents per age cohort.

The “Flight Time Study”

The “Flight Time Study” contains a data base covering

the period 1976-1980, which was constructed as follows.

In the course of medical certification, pilots report their

estimated cumulative total civil flight time and the time

he or she has flown in the last 6 months. Using these

FAA medical records, the data were screened and _ ad-

justed for different examination frequencies to provide

data on pilot age, total flight time, recent flight time (an-

nualized), and class of medical certification. Thus, the total

active pilot population in the period 1976-1980 constitutes

one part of the “Flight Time Study” data base.

Using all NTSB accident records for the entire 1976-1980

period (some 20,000 general aviation accidents), three data

sets were constructed: (1) accidents for which a pilot’s

total flight time had been recorded; (2) those for which

recent flight time had been recorded; and (3) accidents

for which both were available from the official records.

All accident data included in these three data sets also

include pilot age at the time of the accident and class of

medical certification. (Commercial aviation accidents, which

represent only a small fraction of the total, were excluded

from this study.)

The “Flight Time Study” data base contains over 3 million

“pilot years” of flying during which some 300 million pilot

hours were flown. In that period, over 20,000 general avia-

tion accidents occurred, reports for the vast majority of

which (perhaps 90 percent) contained the flight time data

required for the study.

—54a—

Sources of Potential Inaccuracy

While virtually all of the official FAA medical records con-

tain the information needed for this study, the same is

not true of the NTSB accident records. Accordingly, ab-

solute accident rates in the “Flight Time Study” are

understated by some 10 percent and are not directly com-

parable from one category to the next. For example, a

slightly different set of data results when comparing ac-

cident rates based on pilot total time with those based

on pilot recent time since a few accidents included in one

rate calculation may not have sufficient information to be

included in the other. These differences, too, are generally

small and are on the order of 10 percent.

Annualization of recent flizht time data may also give rise

to errors. For example, a class 3 medical certification ap-

plication records flight time in the past 6 months. These

flight hours are first doubled to approximate a year’s time

and then redoubled since only half the pilots holding class

3 medical certification were recertified that year. An ac-

cident record, on the other hand, records flight time in

the past 90 days and is quadrupled to obtain an estimate

of the most recent annual flight time by that pilot.

A last source of potential error lies in the fact that these

pilot medical certificate application flight data are self-

reported and not validated by the issuing official. These

estimates are almost surely in error to some degree,

though it is difficult to see why they would substantially

bias any study of accident rates as a function of age. As

shown in the ‘Flight Time Study,” these data are more

accurate than the minimum needed, although comparison

of age-specific accident rates calculated on the basis of

the recent flight time data subset will yield marginally

different values when compared with rates based on the

total flight time data subset.

—Jvoa—

Results of the Study

Figure 4 displays petitioners’ data (the same as Figure 3)

presented in 10-year increments to permit comparison with

similar data contained in the ‘Flight Time Study.” Figure

5 shows similar data from the ‘Flight Time Study”’ indi-

cating that there are more active pilots who maintain class

1 or class 2 medical certification in their 30’s than in any

other 10-year group. After that age, pilots “‘drop out” of

the active ranks, similar to what petitioners show in Fig-

ure 4. Note, however, the large discrepancy between the

“Flight Time Study”’ and petitioners’ data in the age 60

and up category, where petitioners show about 300 per-

cent more active pilots. By definition, then, at least 3 out

of 4 of the “commercial” or airline transport pilots whom

petitioners have placed in the 60 and up category for their

study are only eligible to fly as private pilots. The FAA

does not believe that these are representative of the air-

line pilots the petitioners seek to have exempted from the

rule, but are likely to be pilots who at one time achieved

commercial or airline transport pilot certification, stopped

flying for whatever reason, and have recently resumed

pleasure flying. Data from the “Flight Time Study” do

not include the same group, since all of these data are

obtained from medical certificate applications for class 1

or class 2 certificates. Regardless of the explanation for

this large discrepancy, one thing is clear: the medical cer-

tification of the pilots in the “Flight Time Study” was

carried out to airline standards. However, the medical cer-

tification status of petitioners’ pilot data base is unknown.

We believe this difference to be of some significance.

As pilots grow older, their individual flying experience

builds. Holders of class 1 or class 2 medical certificates,

“Flight Time Study” data show, build their experience

more rapidly (and to a higher total number of flight hours)

—56a—

than do holders of class 3 medical certificates. Class 1 or

class 2 certificate holders average just under 200 hours

per year of flight time in their 30’s and have maximum

average annual flight time of nearly 270 hours per year

in their 50’s. Holders of class 3 medical certificates, on

the other hand, average only about 30 flying hours per

year in their 30’s, and peak at just over 50 hours per year

in their 50’s. This should not be surprising, since none

of the pilots holding class 3 medical certificates are pro-

fessional pilots. It is likely that most of those holding class

1 or class 2 certificates do fly for a living. Simply stated,

professional pilots do far more flying than private pilots

and are required to have a class 1 or class 2 medical cer-

tificate to do so.

Figure 6 graphically illustrates the differences in experi-

ence level for different age groups of pilots holding class

1 or class 2 medical certificates. Only about 30 percent

of pilots in their 30’s have more than 1,000 hours of fly-

ing experience, but over 75 percent of pilots who main-

tain class 1 or class 2 medical certification over the age

of 60 have that experience level. In fact, over 40 percent

of the active pilots still holding class 1 or class 2 medical

certificates beyond the age of 60 have more than 5,000

hours of flight experience. It is this experience pool that

petitioners seek to tap.

Accident Risk for Older Pilots

The “Flight Time Study” permits a sharp focus on the

group of pilots the petitioners claim have relatively low

accident risk. (This is claimed to be true, in part, because

of their high level of flight experience.) We are also able

to isolate only those active pilots who have maintained

class 1 or class 2 medical certification and who would be

—dia—

eligibie, should petitioners’ arguments prevail, for com-

mercial flying (assuming, of course, that they possess ap-

propriate skill ratings). These data are shown in Figure

7, where accident risk per hundred thousand hours of

flight is displayed as a function of age for the most ex-

perienced group of pilots, those with more than 5,000

hours of flight time. The lowest accident risk is seen for

pilots in their 40’s and a dramatic increase in risk of ac-

cident is seen for pilots who are in their 60’s. It is quite

clear that our analysis does not support petitioners’ claim

tiat experienced pilots beyond the age of 60 have a low

accident rate. In fact, their accident rate is substantially

higher than any younger age of similarly experienced pilots

who maintain medical certification which makes them eligi-

ble to fly for the airlines. This analysis, while not solv-

ing the probiem of why this group of pilots experiences

a higher rate of accidents, does show that (for the period

between 1976 and 1980) very experienced pilots over the

age of 60 who have cbtained class 1 or class 2 medical

certification do experience substantially more accidents for

each hour they fly than younger pilots.

Petitioners’ second assertion is that the greater experience

of this age 60 and over group of pilots at least offsets,

and may even outweigh, accident risk from incapacitation

or skill deterioration when comparing their accident risk

to that of the younger pilots who would replace them.

Younger pilots who are less experienced are first em-

ployed as flight engineers or copilots and spend consid-

erable time flying in those capacities before being given

the additional responsibility of pilot in command. Since

the “Flight Time Study” shows that pilots with less ex-

perience generally have higher accident rates than more

experienced colleagues, an assessment of petitioners’ sec-

ond assertion requires that we broaden the experience

—d8a—

“win v’’ through which we review the “Flight Time

Study” results. Figure 8 shows that, as expected, broad-

ening the criteria to include younger pilots who have

flown at least 1,000 hours and have obtained class 1 or

class 2 medical certificates results in consideration of a

higher-accident risk for the 20-29 year age group. Despite

this, however, the data do not substantiate the petitioners’

claim. Experience factors do not outweigh the increased

accident risk associated with age beyond 60 years, nor

do the older, more experienced pilots have a lower acci-

dent risk than 20-29 year old pilots who have class 1 or

class 2 medical certificates.

Past Studies Relevant to the Issue

National Research Council Study of Car Crashes

The adverse effect of aging on accident rates is not unique

to flying. Indeed, other studies utilizing statistical analysis

of both automobile and aircraft accidents show a dispro-

portionate increase in accidents among persons above age

60. In 1988, the National Research Council (NRC) pub-

lished a definitive report?® which included a detailed ex-

amination of automobile crash patterns and crash risk as

a function of driver age. The study concluded (Summary,

pp. 50-51) that “older drivers show an involvement in

crashes that is more extensive than that of middle-aged

drivers, though not as bad as that of drivers in their teens

and early twenties . . . If the trend in increased driving

continues, the traffic safety picture for older persons could

worsen.”

Safely piloting an airplane is a more complex task than

driving an automobile, but both require knowledge, quick

reflex actions, good judgment, long- and short-term recall

—59a—

and a myriad of other skills and abilities. For many rea-

sons, these skills and abilities deferiorate as we grow

older. Accident rate data represent a quantitative com-

pilation of oceurrences where skills and abilities were, for

one reason or another, inadequate to cope with a specific

situation at a given time.

The NRC Report presents accident rate data which mir-

ror closely the effect of age as discussed in the “Flight

Time Study.” The data consist of several figures, (herein

reproduced from the NRC Report as Figures 9a, 9b, and

9c) which bear striking similarity to the FAA analysis of

the data in the “Flight Time Study.” Graphically, the ac-

cident data for both aircraft and automobiles show a “U”-

shaped curve across age cohorts. The pattern is consis-

tent in that the accident rate among automobile drivers

and pilots tends to decrease with age until it levels off

and then experiences an upswing in both aircraft and

automobile accident rates at approximately age 60. This

pattern shows how older drivers are relatively more in-

volved in accidents than all but the very youngest when

risk of involvement is measured per unit of exposure, in

this case per hundred million miles driven. Responsibil-

ity for (as opposed to mere involvement in) accidents

follows the same trend, i.e., the oldest drivers present

the highest risk of all ages. Similarly, the NRC Report

shows evidence of a relatively complex driving skill (a left

turn in traffic) deteriorating with age from the mid-20’s

upward. The research suggests that younger driver/pilot

accidents are likely due to inexperience and risk-taking

behavior, while older driver/pilot accidents are more likely

due to increasing decrements in physical and judgmental

skills. These data strongly reinforce the validity of the

analysis of the “Flight Time Study” data and the con-

clusions reached as a result of the analyses.

—60a—

The NRC Report also explicitly notes the need to analyze

such data with respect to exposure to risk, e.g., miles

driven, rather than with respect to population and ac-~

cidents per thousand drivers. Our analysis uses such an

exposure-to-risk based methodology such as accidents per

hundred thousand hours flown, whereas petitioners mis-

takenly use a misleading measure, that is, accidents per

thousand pilots.

The Work of Siegel and Mohler

The question of proper measurement of aviation accident

risk is not new. Siegel and Mohler discuss the effect of

age on general aviation accidents.’! They cite data from

an earlier paper as the basis for their claim that “older

pilots do not experience a higher accident rate than their

younger colleagues.’’!2 They explicitly note that the data

they cite “does not contain ‘exposure’ data such as the

number of hours flown per year, which may be less for

pilots over sixty.”’ But instead of exploring further such

a reasonable explanation for the low accident rate of older

pilots, they offer a peculiar explanation amounting to

sheer speculation: “. . . perhaps older pilots are more

cautious (thus achieving an older age) and ‘expose’ them-

selves to such things as adverse weather and unwarranted

low-level maneuvers less often. 2

More recently, Mohler notes that “studies of the relation-

ship of pilot age to accidents in general aviation repeated-

ly demonstrate that with increasing age, fewer accidents

occur.”!3 Citing FAA and NTSB data for 1978 and 1979

(two of the five years covered in the “Flight Time Study”)

he purports to show that accident rates per 1,000 pilots

generally decline with age using the same methodology

as used in petitioners’ arguments.'4 Mohler notes that

—Hla—

“some complain that the accident rate data do not list

the number of hours flown by the pilots . .. however .. .

how a pilot flies . . . is far more important than the mere

number of hours in the air (exposure). ‘Exposure’ as a

factor in flight safety has significance in regard to what

the exposure is to: for example, repeated unwarranted

low-level maneuvers, the center of thunderstorms, and

other hazardous flight activities . . . higher chronological

ages are not associated with increased risks in aircraft

accidents.”” The FAA finds Mohler’s reasoning difficult to

understand in view of the explicit findings known to have

been published by FAA and others which specifically re-

fute this logic. Some examples are briefly discussed below.

“Israel Air Force Study”’

In their third supplement dated November 1988, to the

public docket in the instant case, petitioners put forth a

recent study by physicians at the Israel Air Force Aero-

medical Center in support of their argunzents.!5 There is

a significant potential for being misled when reading the

petitioners’ version of this material. Specifically, discuss-

ing the work of the Israel Air Force, petitioners state

the following in their submittal:

The authors conclude that ‘even if there was a 10-fold

increased incidence of disease-related, in-flight sud-

den incapacitation . . . ,’ replacing an experienced

pilot with a novice would result in an increased ac-

cident rate due to human error. This is especially

true since ‘most cases of in-flight sudden incapacita-

tion are not disease related.’

The relevant portion of the “Israel Air Force Study”, on

the other hand, reads as follows:

.. even if there was a 10-fold increased incidence

of disease-related, in-flight sudden incapacitation and

—6§2a—

sudden death, replacing the 30-year old fighter pilot

with a novice would probably result in an increased

accident rate (Table II.” [Emphasis added. Tabie II]

compares rates of sudden death, in-flight incapacita-

tion, and fatal air accidents due to human error for

two groups of pilots: those between the ages of 20

and 26 years, and those who are between 30 and 33

years old.]

When reviewed at the primary source, it is clear that the

work of the “Israeli Air Force Study” is addressing a

problem that has little relevance to the instant case. This

is not surprising because the issues addressed by military

and civilian flight surgeons are often different and their

pilot populations and operational considerations are fre-

quently dissimilar. Such is the case here, where the oldest

pilot of interest to the Israelis was about half the age

of 60, which is the age of interest in the instant case.

The FAA acknowledges, however, that the Israel Air

Force methodology is one which petitioners seek to have

applied to U.S. airline pilots. If the experience of older

pilots, when weighed against likely increases in pathology

leading to sudden in-flight incapacitation, is a significant

factor, this quantitative approach might bear further ex-

ploration. Unfortunately, the experience factor does not

appear to lead to reduced accidents. Thus, the merits of

this approach are not apparent.

é Studies by Harper and Booze

Harper has shown that increased pilot age is associated

with increased accidents.'® His study compares two popu-

lations: pilots who have had accidents, and pilots who have

not. He compared both populations for 4 age groups: 54

and under, 35-44, 45-54, and 55 and over. In his words,

“the linear increase in accident rate with increased age

—6h3a—

is apparent.” His data show that, beyond the age of 35, an

increasingly disproportionate fraction of pilots is involved

in accidents. Over the age of 55, for these populations,

the accident rate is more than twice what would be ex-

pected based on population size alone. As in many other

studies, both the entire pilot population and the entire

general aviation accident record were used for the anal-

ysis. No selection of pilots on the basis of class of medical

certification or type of pilot certificate was attempted.

In 1977, Booze published a study which, in his words,

“represents an effort to bring together occupation, age,

exposure and other descriptive data on a scale of analysis

never before available in order to appraise the relation-

ships.”"!7 For the year studied (1974), Booze showed clear-

ly that there was an increased risk of accident with in-

creasing age when considering all pilots. (He did not sep-

arately study pilots as a function of either pilot certifica-

tion or class of medical certificate but considered all ac-

tive pilots as a group.) Noting that “several studies [which

he cited] have demonstrated an increase in accident rates

with age,”” he comments on his findings: “The trend of

the total age-specific rates shows an increase with age

of approximately four times from the youngest to the

oldest age interval. The experience within the major oc-

cupational groups is generally supportive of this pattern

...” Data he presents in this work clearly document

an increase with age in accident risk for all pilots, as well

as for those pilots with the highest total experience he

studied (over 2,000 hours of flight time) and for those

pilots with the highest amount of recent flight time (over

200 hours).

Fundamental errors can be made in ascribing risk to a

given group of pilots if the measure of that risk is not

carefully thought through. It is clear from tne open litera:

—$4a—

ture, some of which is referenced above, that mere mea-

surement of a number of accidents per subset of popula-

tion is inappropriate unless all other things are equal.

When the variation in exposure to risk is larger than or

comparable to the variation in accident rates in the two

population subsets being compared, it is quite possible

that the variation in accident risk is the result of the dif-

ferences in exposure. The FAA has determined, from the

data given in “The Flight Time Study,” that different age

groups fly a different number of hours per year, and thus

have different exposures to risk. These differences are far

greater than the small age-related differences shown by

petitioners (Figure 2). These factors must be taken into

account before drawing conclusions about the effect of age

on accident rate. One accepted methodology is to measure

accident risk per 100,000 hours flown by each age group,

as is shown herein. (See Figures 7 and &.)

Dr. Koonce’s comment, briefly discussed in the public com-

ment section above, claimed methodological problems in

the research behind the “Flight Time Study” and pro-

posed alternative ways of measuring pilot safety across

age groups. Dr. Koonce criticized the study because it did

not separately analyze the accident records of pilots hold-

ing class 1 and class 2 medical certificates. Dr. Koonce

stated that data presented in the “Flight Time Study”’

are not relevant to pilots operating under Part 121 of the

FAR because the study did not present data regarding

pilots with class 1 and class 2 medical certificates. Addi-

tionally, Dr. Koonce stated that the statistics presented

as accident rates are in fact global rates (merely an aver-

age of all accidents divided by all flight time for a given

group), and the data are totally insensitive to likelihood

of individuals having accidents as a function of his/her age

and recent flight experience.

—6d5a—

The methodology used in the “Flight Time Study” was

based on a research design developed by a professor at

Johns Hopkins University.!8 The methodology expresses

accident rates as the number of accidents per hour of ex-

posure, which is a well established measure in both FAA

and NTSB safety studies. This reflects the concept that

a measure of safety performance should express the num-

ber of accidents in relation to some measure of exposure

for an affected population. The “Flight Time Study” com-

pares homogeneous groups by controlling for the amount

of flying experience in terms of both recent and total

flight time for each age and certificate category of pilot.

Thus, the results in the “Flight Time Study”’, based on

recent flight time, are already controlled for the amount

of flying undertaken by pilots in a stratum. The method

employed in the “Flight Time Study” also implicitly allows

for the number of pilots in a stratum because recent flight

hours (used as the denominator) is the product of the aver-

age flight hours per pilet times the number of pilots.

The methodology proposed by Dr. Koonce multiplies the

number of accidents times the number of pilots and di-

vides them by the number of recent flight hours. This

methodology provides a misleading answer. For example:

assume there are two groups of pilots. Each pilot has

flown 1,000 hours in the last year, and each has had one

accident. One group consists of 10 pilots, and the second

group consists of 20 pilots. Regardless of the group from

which a pilot is selected, it is clear that the accident risk

is 1 in 1,000 hours of flight. The same is true when mea-

suring the performance of the groups rather than the in-

dividual pilot members of each group. For each 1,000

hours flown by members of each group, one would ex-

pect one accident. But Dr. Koonce would have the acci-

dent risk of the pilots in the larger group be twice that

—66a—

of the smaller group because there are twice as many

pilots in the larger group.

Based upon all of the studies discussed above, we con-

clude that the older pilots’ edge in experience does not

offset the undetected physical infirmities associated with

the aging process. Notwithstanding that most pilots who

are approaching or have passed age 60 report that their

health is excellent and that they do not experience any

physical or cognitive limitations which would prevent them

from continuing their flying career, the research on aging

indicates that there is often a sharp decline in physical

and cognitive performance after age 60.

Conclusions

Petitioners argue that the experience of pilots beyond the

age of 60 outweighs any increased accident risk due to

incapacitation or deterioration of skills with age. The basis

for their argument appears to be centered on the data

that the FAA has reproduced herein as Figure 2. It is

clear, based on a review of the methodology used, that

any conclusions drawn from Figure 2 are suspect. The

FAA has cited a number of papers published by FAA and

others in the scientific literature which have reached con-

clusions contrary to those put forth by the petitioners.

Indeed, it is well established that older pilots are more

prone to accidents than younger pilots (notwithstanding

the youngest group of pilots) when even modest account

is taken of the amount of exposure to risk undergone by

all pilots. The data presented in the “Flight Time Study”

dramatically illustrates the increased accident risk with

age for that very pilot group, those holding class 1 and

class 2 medical certificates, that petitioners argue should

be exempted from retirement at age 60.

—67a—

The FAA does not contend that persons over the age of

60 cannot, by virtue of that fact alone, meet medical re-

quirements for pilots in command in operations under Part

121. Indeed, FAA does not believe that this is the case.

What the FAA has shown is that the pool from which

the older pilots would be drawn has a markedly higher

accident rate than younger pilots, all other things being

equal. What is needed, and what petitioners have failed

to show, is a way to discriminate between those who con-

tribute to the adverse trend of increasing accidents from

those who do not. Clearly, there is substantial scientific

evidence which indicates that the greater experience of

the pilots who have reached or passed uge 60 does not

outweigh the increased risk of incapacitation or skill de-

terioration which accompanies their seniority.

Petitioners continue to hold themselves up as examples

of healthy, aging pilots selected as worthy of exemption

from the generally applicable rule. The petitioners have

been endorsed by a panel, whom they have selected, as

being fit from a medical/psychological standpoint, irrespec-

tive of the fact that they are either near or over age 60.

One of the petitioners, however, manifested significant cor-

onary heart disease and had undergone invasive treatment

prior to evaluation by the panel. Though mentioned within

the text of some medical documents submitted as part

of an appendix to the petition, this diagnosis, appears to

have been ignored or overlooked by the panel when it

formulated its recommendations and endorsements. The

petitioner did not himself fully note his hospitalization and

treatment on one of the medical history forms included

in the pertinent appendix. Another petitioner, within 7

months of this evaluation and endorsement by the panel,

had manifested significant valvular heart disease with ma-

jor cardiac arrhythmia, which no longer permitted airman

medical certification.

—6sa—

In spite of the advances that have been made in medical

diagnosis, treatment, and in primary prevention tech-

niques, some of which are cited by the petitioners, it is

still true that death and disease increasingly progress with

increasing chronological age. It is also known that some

mental, psychomotor, emotional, intellectual, and physical

attributes necessary for enhanced flightcrew performance

deteriorate with advancing age. Regardless of the indi-

vidual exceptions that may be cited, all available data in-

dicate that the population as a whole is subject to an in-

creasing rate of disability or death due to physical changes

or disorders and deterioration in skilled performance

associated with increasing age.

The aging process involves countless variables, is largely

unpredictable, and generally is not measurable. The ques-

tion of operational privileges for aging pilots is not com-

parable to the question of assessment of younger airmen

with specific medical conditions. Although a number of in-

dividuals with known medical conditions have been re-

turned to air carrier duties, their circumstances are not

comparable with those of an individual who has reached

an advanced age. For the person with known disease, the

prognosis for the disease can be assessed and specific tests

or evaluations identified to monitor the condition. Special

issuance of medical certification is granted to airmen who

have certain known medical conditions or static defects

that are disqualifying under the established standards of

the FAR. This practice does not compromise safety and

does not demand similar consideration with respect to the

Age 60 Rule. Where granted, the condition in question

has been clearly identified, and the agency has been able

to develop a means of assessment and surveillance special-

ly designed to demonstrate the individual’s capabilities and

to identify any adverse changes. If that is not possible,

—69a—

certification is not granted. Such is not the case in aging,

since there are no generally applicable medical tests that

can, at this time, adequately determine which individual

pilots are subject to incapacitation secondary to either

acute cardiovascular or neurological events or to more

subtle adverse conditions related to cognitive functioning.

In consideration of the foregoing, I find that the peti-

tioners have failed to provide reasons why the granting

of such exemptions would not adversely affect safety. In

addition, I find that the petitioners have failed to dem-

onstrate that the action to be taken, if an exemption was

granted, would provide a level of safety equal to that pro-

vided by the rule from which the exemption is sought.

I find that a grant of exemption is not in the public in-

terest. Therefore, pursuant to the authority contained in

Sections 313(a) and 601(c) of the Federal Aviation Act of

1958, delegated to me by the Administrator (14 CFR 11.53),

the petition of Mr. Raymond C. Fay, Bell, Boyd & Lloyd,

on behalf of Courtney Y. Bennett, John H. Baker and 41

other current and former pilots, for an exemption from

§ 121.383(c) of the Federal Aviation Regulations is denied.

Robert L. Goodrich

Director, Flight Standards

Service

Issued in Washington, D.C., on May 26, 1989

—Wa—

Footnotes

**1.Golaszewski, R., Report No. DTRS57- 83-P-80750,

June 30, 1983, Federal Aviation Administration, Washing-

ton, D.C. 20591.**

**2.NTSB Accident Report No. NTSB/AAR-&8/09, ‘“Con-

tinental Airlines, Inc., Flight 1713, McDonnell Douglas

DC-9-14, N626TX, Stapleton International Airport, Den-

ver, Colorado, November 15, 1987.”” NTSB Accident Re-

port No. AAR-82-8, “Air Florida, Inc., Boeing 737-222,

N62AF, Collision with 14th Street Bridge, Near Wash-

ington National Airport, Washington, D.C., January 13,

1982.”” NTSB Accident Report No. NTSB/AAR-88/06, “Air

New Orleans, D.B.A. Continental Express, Flight 62,

British Aerospace 3101, N331CY, New Orleans, Louisiana,

May 26, 1987.”’**

**3.Special Report, Airline Pilot Job Search Strategy,

prepared by FAPA, 4959 Massachusetts Blvd., Atlanta,

GA. 30337, copyright 1989.**

**4 Judith Valente, ““Tense Touchdown,” The Wall Street

Journal, March 1, 1989. p.1, cols. 1-4. Laura Parker,

“United Pilot Recounts Struggle to Land Jumbo Jet

Crippled Over the Pacific,” The Washington Post, March

3, 1989, p. Al2, cols. 1-3.**

**5.NTSB Accident Report No. NTSB-AAR-79-1, “Con-

tinental Air Lines, Inc., Flight 603, McDonnell Douglas

DC-10-10, N68045, Los Angeles International Airport,

California, March 1, 1978.’’**

**6§ No NTSB accident report is available regarding this

incident because it did not meet the criteria and was not

classified as an accident. However, an Accident/Incident

Record form 8020-27 was filed by the FAA on May 26,

1978.**

**7 Congressional Hearings by the House Subcommittee

on Aviation, Committee on Public Works and Transpor.-

tation on July 18 and 19, 1979.**

—fla—

**% Joint appendix filed pursuant to Melvin M. Aman, et

al., v. FAA, January 1988.**

**9.“ Active” pilots are those who have received any class

of medical certificate within the past 25 months and are

thus able to exercise at least private pilot privileges.**

**10.Transportation in an Aging Society, Transportation

Research Board, National Research Council, Washington,

D.C. 1988.**

**11. Siegel, P.V. and Mohler, S.R., ‘Medical Factors

in U.S. General Aviation Accidents, ‘Report No. AM

69-2, Federal Aviation Administration, Washington, D.C.

20591.**

**12.Mohler, S.R., et al., “Aircraft Accidents by Older

Persons”, Report No. AM 67-22, Federal Aviation Admin-

istration, Washington, D.C. 20591.**

**13.Mohler, S.R., “Study Shows Fewer Airplane Ac-

cidents as Pilots Grow Older,” Newsletter, Aircraft

Owners and Pilots Association, Frederick, MD 21701, De-

cember, 1982.**

**14. Interestingly, though writing for an audience of pri-

vate pilots, the data Mohler used were limited to con-

sideration of pilots having more advanced certification:

commercial and air transport certificates. Doing this, as

pointed out earlier in this work, artificiaily inflates the

number of older pilots in the data base without a corre-

sponding increase in average exposure at those ages. Us-

ing the same methodology for all active pilots shows that

accident rates per 1,000 pilots increases with increasing

age.**

**15.Froom, Paul et al., “Air Accidents, Pilot Experience

and Disease-related In-flight Sudden Incapacitation,” Ava-

tion, Space, and Environmental Medicine, March, 198%,

pp.278-281.**

**16.Harper, Charles R., “Physical Defects of Civilian

Pilots Related to Aircraft Accidents,” Aerospace Medicine,

September, 1964, pp.851-856.**

—12a—

**17.Booze, C.F., “Epidemiologic Investigation of Occupa-

tion, Age, and Exposure in General Aviation Accidents,”

Aviation, Space, and Environmental Medicine, Novem-

ber, 1977, pp.1081-1091.**

**18.Brookmeyer, R., ““Recommendations and Critique of

Statistical Methodologies for General Aviation Accident

and Pilot Occupation Data’, Department of Biostatistics,

Johns Hopkins University, October, 1981.**

*Materials relevant to the preparation of this document

have been placed in public docket #25008.

= “ mt ret ce ms oe OD ie

. ae ee RES GS -F . 4. 6.6 6 6.6.6 wes

ms >

. *.4 o8

—3a—

Figure 1

L9'76—-1980

QUASS I, TT AND II] PILOTS OVERALL ACCIDENT RATE

MOF OF ACCIDENTS PER IBC, 808 RECENT FLIGHT-IOLRS

FROM AS-CoD FAA HIERARCHY SYSTOHTOTAL HOUPS

AG OF PILOT

LEGO FIIME® +All THE enmnl- 16

++~ 1Bl- B ©2050) t OR

¢ ++ [Pel- S802

# HH SEl- 1622

Petitioner's Exh. 72: Accident Rates

____sése@®

[982-1985

_ _- 2

——

~1989

)

Distribution, {98

a

a

_—_e-

lllllllldllldl4

os

UddddddddddMMMWW/,

ee 2

Petitioner's Exh. 72: Pilot Ave

Distribution, 1982-1985

| ai =

CC

| oe |

= -s

Figure 5

— :

re

EE :

| = =

Pilot Age Distribution, 1976-1980)

Class | & 2 Medical Certification

Figure 6

= 7° O:ZD= 3

= ong :

= RESUS RUR ERR SR :

=e __

= _ Ff

Accident Risk, Class | & 2 Medicals

wilh 9000 Hrs. Total Time

Pilots

—0a—

Aceident Risk, Class | & 2 Medicals

Pilots with

total Time

>L000 Hrs.

a = i;

—S8la—

Figure 9

20 -

Arrua greoivement rate per 100

—_—

millon mies Grrven

Ej Thousands of involvements

15 +

10 -

Vj ¥)

BY RS B PM fim Fi

Dm Ss D0 BW © & D SS DO B& 7 TS

a xs 3@w™ «4 «49 s 8S & @ %4

-Y

5-Year Age Group

FIGURE 9a Driver involvements in fatal crashes and fatal

involvement rates by age, 1983 (NHTSA and FHWA data).

25¢

Orwer 1 = responsible for crash

20 Oriver 2 = innocently invoived

be

Ratio Orwver 1: Orwer 2

ae

05}

00 .* 4 a rt rm .—— = 4 L 4 a

<ODa Sse DIS © 4% CH $5 6 65 TO 7S B+

r. i. ee) ee | ) .? 2, i a |

5-Year Age Group

FIGURE 9b Driver responsibility for multivehicle accidents,

1983 (McKelvey et al. 1987).

—82a—

2.0

15

VEH #1

Relative Involvement = E(VEH #1)

6

0.5

0.0 ‘

20 21 25 30 35 45 55 65

and to to to to to to and

under 24 29 4 a8 54 64 over

Driver Age (years)

FIGURE 9c_ Relative accident involvement by driver

age for left-tum accidents (Maleck and Hummer 1986).

—&3a—

Figure 10

PILOT RETIREMENTS (AGE 60)

1982-2008

NO. OF PILOT

ALTIREES

2000

1800

1600

1400

1200

1000

800

600

400

200

$oge 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008

YEARS

Copyright 1S FAP A Ateree GA