# Appendix — Baker v. Federal Aviation Administration

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3348%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 936

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3348%3A2. Public record. Not legal advice.