AGE DISCRIMINATION STILL POLICY AT DOT-FAA
Oct 27, 2003
Author: GARY L. COTTINGHAM

Last week the FAA returned its denial to the ten pilots who had applied for
exemption to 121.383c (The Age 60 Rule) after taking 18 months to arrive at
its conclusion.
The FAA document of denial may be accessed using the link below and I have
also copied the text below.
I noticed where ALPA was referred to on page 6 for the better part of the
page.
The PPF now has 60 days to file its lawsuit in Federal Court.
The origianl PPF petition may be viewed at www.ppf.org .
Feel free to call or write with any questions.

Regards,


Gary L. Cottingham
Airline Pilots Against Age Discrimination
Indianapolis, Indiana
317.513.0099
garycottingham@comcast.net
www.alpaad.org







The text of the PPF Petition denial by the FAA is at
http://dmses.dot.gov/docimages/p77/256442.doc .






Exemption No. 8141

UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, DC 20591

* * * * * * * * * * * * * * * * * * * *
In the matter of the petition of *
*
BUTLER, DALLAS E. ET AL * Regulatory Docket No. FAA-2002-12501
*
for an exemption from § 121.383(c)*
of Title 14, Code of *
Federal Regulations *
*
* * * * * * * * * * * * * * * * * * * *

DENIAL OF EXEMPTION

By petition received on June 13, 2002, Mr. Anthony P. X. Bothwell,
Esquire, Attorney for Petitioners, 100 First Street, Suite 100 PMB241, San
Francisco, California 94105-2632, petitioned the Federal Aviation
Administration (FAA) on behalf of Dallas E. Butler et al for an exemption
from § 121.383(c) of Title 14, Code of Federal Regulations (14 CFR). The
proposed exemption, if granted, would permit the petitioners to act as
pilots in operations conducted under part 121 after reaching their 60th
birthdays.

The petitioners request relief from the following regulation:

Section 121.383(c) prescribes, in pertinent part, that no person may serve
as a pilot on an airplane engaged in operations under this part if that
person has reached his 60th birthday.

The petitioners support their request with the following information:

The petitioners claim the Age 60 rule has no medical or safety basis,
instead, petitioners assert the Age 60 rule was originally adopted as an act
of favoritism and continues to be supported by the FAA as an economic favor
to the airline industry. Petitioners allege the FAA has intentionally
misrepresented the justification for the Age 60 rule to the public,
Congress, Federal courts, and other executive agencies. Petitioners claim
they are entitled to be exempt from the Age 60 rule because the rule has no
medical or safety basis and, therefore, granting them an exemption to the
rule will not adversely affect safety.


AFS-02-463
Petitioners allege prior to the issuance of the Age 60 rule in 1959 there
was no medical or safety basis for the rule. Petitioners allege the true
purpose for the Age 60 rule was a personal favor between FAA Administrator
Elwood Quesada and American Airlines Chairman C.R. Smith.

Petitioners claim that the Age 60 rule was adopted because American Airlines
Chairman Smith contacted Administrator Quesada to request the FAA adopt a
mandatory retirement rule to settle an ongoing pilot strike.

Petitioners assert the FAA continues to enforce the Age 60 rule so that
airline companies will not be burdened with any administrative costs that
may be associated with having to change retirement policies currently based
on the age of 60. Petitioners cite correspondence between a former Federal
Air Surgeon and a former FAA employee and a closed meeting between a
congressman and FAA officials as evidence of this economic conspiracy.

Petitioners allege the FAA intentionally insulated itself from independent
administrative review by adopting the Age 60 rule as an operational
restriction under section 601 of the Federal Aviation Act of 1958 (now
codified at 49 U.S.C. § 44701). Petitioners allege the FAA purposefully did
not locate the Age 60 rule under section 602 of the 1958 FAA Act (now
principally codified at 49 U.S.C. § 44703) as a licensing restriction that
would be reviewed by the National Transportation Safety Board.

Among the many allegations leveled by the petitioners against the FAA are
the following concerning studies in support of the Age 60 rule: the FAA
continues to intentionally and purposefully fabricate and disseminate false
and misleading data to support the rule and the FAA distorted data and
endorsed and promoted flawed studies to support the rule; the FAA has
ignored expert panel reports that disprove medical arguments supporting the
rule; the FAA has refused to collect data, make data available that has been
collected, or analyze data that has been collected that would undermine the
Age 60 rule. Petitioners contend the FAA's reliance on one particular
allegedly flawed study in support of the Age 60 rule, the Flight Time Study,
conducted by Richard Golaszewski, constitutes intentional misrepresentation
by the FAA to Congress and the U.S. Court of Appeals for the Seventh
Circuit. Finally, petitioners allege the U.S. Senate Committee on
Appropriations ordered the FAA to conduct a study in a 2000 appropriations
bill. The petitioners allege that there is "evidence of the FAA's intent -
perhaps even its complicity with the [Senate Appropriations] Committee - to
mislead."

Petitioners allege pilot incapacitation poses no threat to safety in air
operations and therefore there is no justification for the FAA "no
exemptions" policy regarding the Age 60 rule. Petitioners claim two systems
that prevent accidents when there is an incapacitation are the manual lock
shoulder harness and the two-communication rule. According to petitioners,
even though pilots have died on the job, not a single air carrier accident
has been reported in the literature as caused by pilot incapacitation since
the two-communication rule and the manual lock shoulder harness were adopted
by industry in the early 1970s. Petitioners also cited studies which
compute the risk of pilot cardiovascular failure at 1 in 20.8 million flight
hours and a risk of accident in multiple crew air carrier flight operations
to be 1 in 8.3 billion flight hours. Petitioners allege the FAA has ignored
this factual record which proves that pilot incapacitation in air carrier
operations poses no risk to safety.

Petitioners allege when the FAA considers granting exemptions to the Age 60
rule, it does not consider that performance and medical checks eliminate
at-risk pilots. Petitioners claim one such performance check is the
multiple crew system where a back-up pilot can fly the aircraft if a PIC
becomes incapacitated. Petitioners contend the FAA recognized the
effectiveness of multiple or back-up pilots in airline operations during
congressional testimony and in a 1969 study co-authored by former Federal
Air Surgeon P.V. Siegel.

In addition, petitioners claim the FAA has never denied its ability to
diagnose illness in older individuals and to be able to identify pilots that
are unfit for duty. Petitioners claim the FAA has also recognized the
superior health and fitness of airline pilots as compared to the general
U.S. population.

Petitioners also assert that the FAA did not enforce the Age 60 rule against
foreign pilots flying into the United States until 15 years after the
International Civil Aviation Organization adopted the Age 60 rule.
Petitioners claim the granting of these waivers is additional evidence of
the FAA's true purpose of the Age 60 rule, airline scheduling and economics.

Petitioners also claim that because the Age 60 rule has no safety basis, the
rule is inherently discriminatory and, therefore, violates the Age
Discrimination in Employment Act (ADEA). Petitioners claim this argument is
distinct from past claims of age discrimination because past claims did not
argue the rule has no safety basis, past claims argued even if the rule was
based on safety, it violated the ADEA.

Petitioners claim the FAA's rigid enforcement of the Age 60 rule forces
airlines to aggressively recruit military pilots, thus creating a shortage
of military pilots. Relaxing the FAA's no-exemptions policy will help the
military retain combat-ready pilots, which is a priority, particularly in
times of national emergency.

On September 10, 2002, the FAA published a summary of the petition in the
Federal Register seeking public comment for a period of 2 weeks. On October
2, 2002, a more detailed summary of the petition was published in the
Federal Register and the comment period was extended to October 14, 2002.
The FAA also received correspondence from Mr. Bothwell concerning a number
of administrative matters, including a dispute as to the second summary of
the petition published on October 2, 2002. Mr. Bothwell was concerned that
the summary of the petition that he provided was not published in the
Federal Register.

The second summary of the petition published in the Federal Register on
October 2, 2002, more accurately described the petition than the summary Mr.
Bothwell provided. The published summary paraphrased and quoted from the
petition that Mr. Bothwell filed.
Mr. Bothwell has not demonstrated how not using his summary has in any way
affected public notice of the petition. In addition, the entire petition
filed, along with every comment submitted, has been and is available to the
public online. The Web address for the online version of the petition was
included in both notices in the Federal Register. The FAA received over
6,700 comments. Finally, the FAA is not required to publish the summary of
a petition for exemption submitted by a petitioner or his or her
representative, pursuant to
14 C.F.R. § 11.81(f). Mr. Bothwell's summary of the petition was conclusory
and it was the FAA's position that publishing his summary could have misled
the public to believe the FAA was admitting to the allegations in the
petition.

Summary of Comments:

The overwhelming majority of commenters favor retaining the current Age 60
rule. Safety and medical issues were most often cited as the reasons for
retention of the current rule. Numerous commenters stated there is medical
information to support the Age 60 rule and before any change is considered,
there needs to be extensive medical study in this area to prove that a
change is warranted. Safety concerns of commenters included concern over
irregular hours and long hours that take a toll on any pilot and many
younger pilots and check airman stated they observed fatigue and a
deterioration of mental skills and snap judgment in pilots close to age 60.
In addition, some commenters stated since safety is the paramount
consideration and the public does not choose which pilot flies their
aircraft, the FAA should keep the Age 60 rule for the benefit of the general
public. Some commenters advised that many pilots encounter serious medical
problems soon after retirement due to airline pilot job stresses and
evidence of this is in the sick leave records of flight engineers over the
age of 60.

The vast majority of comments received for this petition for exemption did
not address the medical condition of these ten petitioners. Instead they
commented on whether the FAA should keep, remove, or withdraw the Age 60
rule. Comments were solicited to provide the public an opportunity to
comment on the petition and to receive information as to whether these ten
individual petitioners should be granted an exemption from 14 CFR §
121.383(c).

Many commenters stated they either support or oppose the FAA granting of an
exemption to the ten petitioners. However, few commenters provided specific
substantive information concerning the ten petitioners to assist the FAA in
deciding if these ten petitioners should be granted an exemption to the Age
60 rule.

Many commenters stated changing the rule to bring back older pilots would
not make economic sense given the financial troubles of airlines. Some
commenters stated the public is focused on the safety of flight after the
events of September 11, 2001, and permitting older pilots to fly in Part 121
operations would give the public one less reason to fly. Many commenters
stated changing the Age 60 rule would disrupt the retirement plans of many
airline pilots that are based on the age of 60.

Many commenters do not believe the Age 60 rule is discriminatory, they
believe safety overrides any discrimination. Some commenters also pointed
out that there are minimum age requirements to become an airline pilot and
that the FAA must choose some retirement age and age 60 is as good as any
other.

A vast number of pilots commented that there is no shortage of pilots given
that many thousands of pilots have been furloughed since the events of
September 11, 2001. Many furloughed pilots pleaded that the FAA not change
the Age 60 rule, because increasing the age above 60 would delay any chance
they have at getting back their airline pilot job.

Many commenters stated that the vast majority of pilots and airlines are in
favor of the
Age 60 rule. Commenters also stated that petitions such as the one
considered here originate from a vocal minority within the pilot community
that understood the retirement system when they were hired by an airline but
failed to plan their retirement accordingly and now seek to change the rule
for the minority's financial gain, not for safety.

Commenters that support changing the Age 60 rule most often cited economics
as the basis for the Age 60 rule. Some commenters stated the Age 60 rule is
based on economics as a favor to the airlines, terminating the most senior
and expensive pilot salaries. Some commenters stated they or pilots they
know are experiencing financial difficulty because of the rule and they
should be able to work as a pilot in Part 121 operations to the traditional
social security retirement age of 65.

Commenters stated airline flights are less safe without older pilots because
older pilots are more experienced and are sharper than younger, less safe
pilots. Also, some commenters argue medical checks can weed out unsafe
pilots. Finally, some commenters stated safety cannot be the basis of the
rule because many other countries permit airline pilots to fly beyond age
60.

Some commenters argued the Age 60 rule is age discrimination. Some
commenters stated the Age 60 rule violates U.S. age discrimination laws and
it is ironic that the Government that adopts age discrimination laws also
practices such discrimination.

Some commenters who are pilots argued that the Age 60 rule should be
abolished because there is currently a shortage of pilots in the airline
industry, including a shortage of pilots in certain regions.

The Southwest Airlines Pilots' Association (SWAPA) commented that the
petition for exemption should be granted because the Age 60 rule is
discriminatory and refuted by medical research. SWAPA also commented that
there is no credible evidence to support the Age 60 rule and physicals and
simulator checks are adequate to screen at-risk pilots.


The Air Line Pilots Association, International (ALPA) commented that the
petition should be summarily denied because the petition does not meet the
requirements the FAA adopted in the 1995 Disposition of Comments. ALPA
commented that the Age 60 rule has been thoroughly studied, and repeatedly
reaffirmed by the FAA and Federal Courts of Appeals. ALPA also commented
that the petition offers no basis for reconsidering the Age rule, that each
point in the petition has been addressed and rejected on repeated occasions.
In regard to the origin of the Age 60 rule, ALPA commented that the FAA has
reviewed the rule three times, finding each time the rule is well-founded,
and the FAA's findings were upheld each time by a Federal Court of Appeals.
ALPA commented that the petition offers no evidence to support the claim
that the Age 60 rule is maintained as a favor to airline executives. ALPA
commented that the FAA has devoted a substantial amount of time and
resources to the
Age 60 rule, and the FAA has conducted a significant amount of research
concerning the Age 60 rule. ALPA commented that there is no evidence that
authors of accident studies intentionally skewed results to support the Age
60 rule and that two appellate courts rejected criticisms of FAA use of the
Golaszewski study. ALPA commented that the petition's allegation that the
1981 National Institute on Aging Panel Report disproved the medical
justification is not true, the report recommended retaining the Age 60 rule
and extending the rule to Part 135 operations. ALPA commented that sudden
pilot incapacitation and subtle cognitive impairment are topics the FAA have
found to be a safety risk and ALPA agrees with the agency's conclusions.
Also, ALPA stated that performance and medical checks do not adequately
screen at-risk pilots as the petition argues. ALPA commented that the FAA
found that the Age 60 rule does not violate the Age Discrimination in
Employment Act and the United States Court of Appeals for the District of
Columbia Circuit upheld that decision. ALPA also commented that there
currently is no shortage of pilots for Part 121 operations, in fact as of
September 30, 2002, 5,000 pilots represented by ALPA were furloughed.

The Professional Pilots Federation commented that the origin of the Age 60
rule stems from ex parte contacts between a former administrator and an
airline chief executive officer. They state there is no independent study
that they are aware of that states some retirement age is necessary.

Wright State University commented that more than three dozen countries allow
airline pilots to fly past Age 60, which they state contributes to air
safety. The university also states that life expectancy in the United
States has increased since the rule was enacted and, therefore, the public
and pilots are living longer.

The Federal Education Association, Inc. commented that it could see no basis
for requiring retirement at the age of 60. It also commented that pilots
over the age of 60 are permitted to fly into the U.S. while United States
pilots cannot.


The American Association of Retired Persons commented that the FAA continues
to adhere to a rule that was adopted in 1959 to insure the highest level of
safety despite over 40 years of medical and technological developments and a
growing trend among foreign aviation authorities to allow pilots over age 60
to fly. It also commented that the FAA has yet to attempt to obtain medical
or performance data on older pilots while claiming such data is needed
before any change to the rule can be considered.

Finally, hundreds of commenters just simply stated they are for or against a
change to the rule, with no explanation of why the rule should remain or be
changed.

A brief history of the Age 60 rule:

The "Age 60 Rule" was adopted by the FAA in 1959 (24 FR 9767, December 5,
1959). The history and basis of the rule are set out in detail in a
Disposition of comments and notice of agency decisions, 60 FR 65977
(December 20, 1995), corrected, 61 FR 24533 (May 15, 1996). Since adoption,
the basis of the rule has been upheld in at least three cases, see PPF v.
FAA, 118 F.3d 758 (D.C. Cir. 1997); O'Donnel v. Shaffer, 491 F.2d 59 (D.C.
Cir. 1974); Air Line Pilots Association International v. Quesada, 276 F.2d
892 (2nd Cir. 1960); and exemption petitions have been unsuccessful in at
least eight cases, see Yetman v. Garvey, 261 F.3d 664 (7th Cir. 2001); PPF
v. FAA, 118 F.3d 758 (D.C. Cir. 1997); Baker v. FAA, 917 F.2d 318 (7th Cir.
1990); Aman v. FAA, 856 F.2d 946 (7th Cir. 1988); Gray v. FAA, 594 F.2d 793
(10th Cir. 1979); Rombough v. FAA, 594 F.2d 893 (2nd Cir. 1979); Keating v.
FAA, 610 F.2d 611 (9th Cir. 1979); Starr v. FAA, 589 F.2d 307 (7th Cir.
1978).

Congress has also had the opportunity to reevaluate the Age 60 rule during
the past 43 years. For example, in February of 2001, a bill to increase the
Age 60 rule to age 65 was referred to the House Subcommittee on Aviation.
In March of 2001, a bill to increase the Age 60 rule to age 63 was drafted
to be reported by the Senate Committee on Commerce, Science, and
Transportation. Neither of those two bills was enacted. In a 1997
appropriations bill, the National Transportation Safety Board was
appropriated a specific sum of money to conduct a study of the Age 60 rule.
When the bill was finally passed by Congress, however, an amendment was
added prohibiting the NTSB from spending any appropriated money to study the
rule.

Also, in the 1995 Disposition of comments, the FAA decided to deny future
Age 60 rule petitions for exemptions without first publishing the petition
for comment if the petition does not contain a proposed technique to assess
an individual pilot's abilities and risks of subtle and sudden
incapacitation. This process was upheld by the United States Court of
Appeals for the District of Columbia Circuit.

While the current petition does not contain a new proposed technique to
assess an individual pilot's ability and risk of incapacitation, the
petition presents a unique, albeit not new, challenge to the Age 60 rule, in
the form of a petition for exemption, on which the FAA gave the public an
opportunity to comment.

Petition for Exemption Standards:

Factors that the FAA considers when evaluating a petition for exemption
include whether the petitioner can show why granting the exemption will be
in the public interest, how the exemption would benefit the public as a
whole, and why granting the exemption will not adversely affect safety, or
how the exemption will provide a level of safety at least equal to that
provided by the rule from which the petitioner seeks an exemption.
Moreover, Congress specified in subpart III of Part A to Subtitle VII to
Title 49 of the U.S. Code that the Administrator may grant exemptions from
FAA regulations if such exemptions are in the "public interest." See 49
U.S.C. § 44701(f). In setting forth criteria for the Administrator to carry
out her duties under Subpart III of Part A to Subtitle VII of Title 49 of
the U.S. Code, Congress required the consideration of several things to be
in the "public interest." 49 U.S.C. § 40101(d). But of the several items
listed for consideration of what the public interest is in any particular
matter, Congress stated that "(1) assigning, maintaining, and enhancing
safety and security [are]..the highest priorities in air commerce." 49
U.S.C. § 40101(d)(1).

Thus, although there may be many things that are arguably in the "public
interest," the Administrator is statutorily required to consider in any
rulemaking action (including petitions for exemption from rules) the highest
priority in air commerce is to assign, maintain, and enhance safety and
security.

Petitioners have not met the standards for an exemption to the Age 60 rule
under 49 U.S.C. §§ 40101(d)(1) and 44701(f) and 14 CFR § 11.81(d) and (e).
Petitioners attack the basis of the rule instead of providing medical
evidence as to each airman, scientific studies, or new scientific protocols
that would justify an exemption. As the United States Court of Appeals for
the Seventh Circuit stated in a case involving a petition for exemption,
that included many of the same allegations attacking the Age 60 rule, the
validity of the Age 60 Rule has already been affirmed. In a petition for
exemption, the petitioners bear the burden of showing that circumstances
justify exemptions from the Age 60 rule, a heavy burden where daunting
issues of public safety are implicated.

Petitioners fail to present any facts that would justify an exemption to the
Age 60 rule for these ten individuals. The only facts given concerning
these petitioners are their names, birth dates, and addresses. Petitioners
present no facts that uniquely qualify them for an exemption to the Age 60
rule as opposed to many similarly situated pilots. Without further medical
information regarding these petitioners and without a medical protocol that
can reliably predict which over age 60 pilot will experience detrimental age
decrements, the petitioners have failed to present any evidence upon which
an exemption might legitimately be based.

Instead of presenting information that would support an exemption from the
rule, the petitioners challenge the basis of the Age 60 rule and the FAA's
conduct in defending the rule. Such allegations do not meet the
requirements for a petition for exemption. These allegations do not meet
the requirements for a petition for rulemaking. The FAA is responding to
the specious allegations petitioners raise regarding the FAA's conduct over
the past 43 years defending the Age 60 rule.

The petition is denied because the petitioners failed to provide any
information that supports an exemption from the rule.

FAA Response to Petitioners Allegations:

Petitioners allege that the agency has participated in an economic
conspiracy to justify the Age 60 rule. These allegations are without merit.
The allegations petitioners present in this petition for exemption are not
factually based; instead they are based on far-reaching theories, and are
completely without merit. The petitioners present no significant new
information that has not been presented in prior petitions for exemptions or
petitions for rulemakings. In each proceeding, where these same arguments
were raised, the FAA denied the petition and various U.S. Courts of Appeals
upheld the FAA's denials. The Age 60 rule and the justifications for the
rule have been subjected to repeated FAA review and judicial review over the
entire 43-year history of the rule. Congress has had the opportunity to
revisit the Age 60 rule. In addition, the FAA, other Federal agencies, and
private institutions have conducted numerous studies to examine the Age 60
rule.

Allegations of favoritism in the adoption of the Age 60 rule were raised in
earlier proceedings before the FAA and challenges to FAA determinations in
three cases before two
United States Courts of Appeal. The basis of this assertion is a letter
from C.R. Smith, president of American Airlines when the Age 60 rule was
adopted in 1959, to Administrator Elwood Quesada, suggesting there must be
some suitable age for mandatory airline pilot retirement. This and other
documents purportedly supporting this allegation have been submitted to the
FAA and to U.S. Courts of Appeals in at least two different petitions for
exemption from the age 60 rule. In response, the FAA denied allegations of
favoritism and U.S. Courts of Appeals have refused to reconsider the
validity of the Age 60 rule, upholding the rule in several cases for over 40
years.

The FAA denies allegations of favoritism in regard to either the adoption of
the Age 60 rule in 1959 or during its longstanding defense of the rule. At
the time the rule was adopted, the FAA followed standard rulemaking
procedures by giving the public an opportunity to comment on the proposed
rule. Claims by petitioners that the Age 60 rule was adopted as a personal
favor to the president of an airline company are completely without merit.

There was nothing inappropriate in adopting the Age 60 rule as an
operational restriction under section 601 of the 1958 Act as opposed to an
airman certification provision under section 602 of the Act. There are many
operational restrictions and requirements in part 121 that do not have a
corresponding airman certification provision. That is because the level of
safety required for part 121 operators is higher than other operations, and,
thus, the tolerance for risk is lower. Although pilots who are 60 years of
age or older may operate under other parts of the regulations (e.g. parts 91
and 135) such operations do not have to meet the more demanding safety
requirements imposed on part 121 operators. The Age 60 rule was adopted as
an operational rule because Age 60 carves out a limited restriction
prohibiting airman from operating aircraft under part 121. An airman
certification restriction would be an overly broad measure for this rule and
would require revoking and reissuing an airman's certificate at age 60, a
matter that is more appropriately handled as an operational restriction.

The petitioners' allegations that the FAA has refused to collect data
concerning the Age 60 rule is simply untrue. In addition, the FAA does not
restrict the type of data it collects concerning the Age 60 rule. The FAA
collects data neutrally, regardless of whether some claim certain data may
support or undermine this rule. In the latest petition for exemption before
the U.S. Court of Appeals for the Seventh Circuit, the court found "We find
the FAA, in accordance with our directive [from a prior petin for
exemption] has kept abreast of and considered new studies and medical
technology."

In fact, the FAA has posted four reports concerning Age 60 on its website,
at the address: http://www.cami.jccbi.gov/aam-400A/AGC60/60_index.html.
These reports were created in part in response to the U.S. Senate Committee
on Appropriations order to study the Age 60 rule in a year 2000
appropriations bill. The first report is an extensive annotated
bibliography of the Age 60 rule debate covering the years 1990 to 1999. The
second report is a re-analysis of a 1999 Chicago Tribune Report that
analyzed accident and incidents data from 1990 to 1999. The third report is
an analysis of professional air transport pilot accident rates by age for
the years 1988 to 1997. The fourth report is an analysis of professional
ATP and commercial pilot accident rates by age for the years 1988 to 1997.
Petitioners criticize the method of analysis used in the fourth report,
however, the FAA conducted the study pursuant to the direction of the
Appropriations Committee and the results of that study showed an increasing
risk for pilots over the age of 60.

Petitioners also claim that the FAA intentionally misrepresented information
concerning studies (including the Flight Time Study) that support the Age
60, this allegation is completely false. This same argument has been raised
in a petition for exemption and raised in two challenges of FAA exemption
denials before the U.S. Court of Appeals for the Seventh Circuit. In both
cases, the Seventh Circuit recognized that the Flight Time Study was not
perfect, but ultimately upheld the FAA's decision to deny petitions for
exemption and upheld the use of the Flight Time Study as substantial
evidence supporting the validity of the Age 60 rule.

In the latest case upholding of an FAA petition for exemption denial the
court states:

Petitioners have failed to explain how the FAA's awareness of the
deficiencies in the Flight Time Study-incidentally, a fact that we were
aware of in Baker-impacts our substantial evidence inquiry. Yetman at 677
(emphasis in original).

The issue of whether pilot incapacitation poses a risk to air carrier safety
has also been repeatedly raised by petitioners and examined by the FAA in
prior petitions. In prior petitions concerning Age 60, the FAA determined
that both sudden and subtle incapacitation create risks to air safety and
experience of older pilots do not compensate for lost faculties. Recently,
the court in Yetman agreed with the FAA, finding that the petitioners in
that case did not provide, as was their burden, strong evidence that the
added experience of pilots 60 and over clearly neutralizes the danger of
sudden incapacitation and deterioration of piloting skills associated with
the aging process. Petitioners evidence in the present petition is no less
than a decade old, once again providing no new evidence to support their
claims and certainly not meeting the standard described by the court in
Yetman, as requiring strong evidence to support their claims.

The purpose of requiring safety systems and procedures such as multiple
pilot crews and the Age 60 rule is to provide redundant safety measures, so
that if one safety mechanism fails another is in place. However, some risk
exists even with what appear to be redundant safety mechanisms. Thus,
although part 121 operations require the presence of at least two pilots,
the safety benefit of having two pilots would be diminished if one of those
pilots were
age 60 or older. That's because there is a higher chance that the age 60 or
older pilot will suffer an incapacitating event, including an insidious
incapacitating event (not noticeable to other crewmembers) or might have a
decrement in cognitive functioning or reaction times that would not be
timely caught and corrected by the other pilot.

The petitioners claim that the FAA does not consider performance and medical
checks to eliminate at-risk pilots when examining a petition for exemption.
This claim is without merit. The FAA considered medical testing in recent
petitions and found that the medical tests and protocols did not provide the
same level of safety as the Age 60 rule and this finding was upheld by court
decisions. For instance, the Yetman petition for exemption proposed a
medical protocol, albeit a protocol substantially similar to past protocols
submitted to the FAA, that in the petitioners view could identify pilots
medically qualified to operate airline pilot duties beyond age 60. In a
detailed analysis of petitioner's protocol, the FAA found the protocol did
not provide a level of safety equal to the level of safety under the Age 60
rule. In addition, the FAA found there continues to be cognitive disorders
for which there are no diagnostic tools on which we can rely. Similarly,
the FAA found the medical protocol submitted in the Aman and Baker petitions
to be inadequate. The courts in each case upheld the FAA decision.

In the current petition, no medical protocol whatsoever was submitted;
instead petitioners claim the FAA can diagnose and eliminate at-risk pilots
through current first-class airmen medical examinations. However, the FAA
and courts have held that first-class airmen medical examinations and any
medical protocol so far submitted to the FAA are inadequate to screen
at-risk-pilots and do not provide the same level of safety as the Age 60
rule. The courts have already spoken as to the FAA's analysis of protocols
and the courts disagree with the petitioners.

Petitioners claim that use of simulators can screen at-risk pilots has also
been raised in recent petitions for exemption and addressed by the FAA in
denying those petitions. As discussed in the FAA's denial of the Yetman
petition:

.periodic proficiency and competency checks are intended to detect a pilot's
performance deficiency and to correct those deficiencies before the pilot is
returned to flight operations. These checks only verify the state of a pilot
's performance at the time of the checks. They are not useful for detection
of early or subclinical cognitive defects that may subtly degrade
performance or which, in time, may progress to risks for errors in judgment
or other actions that may jeopardize safety. The checks do not predict
whether an individual pilot's performance will degrade at any time in the
future with aging.

Yetman denial p20.

The FAA made the same finding in the 1995 Disposition of Comments and the
U.S. Courts of Appeals for the District of Columbia Circuit upheld the FAA's
determination:

We conclude that the FAA afforded adequate consideration to the alternative
of individualized testing. The FAA explained that even state-of-the-art
testing cannot screen out potentially risky pilots.

PPF v. FAA 118 F.3d at 674.

Nothing has been presented to the FAA in this petition which warrants the
FAA altering its determination with regard to the use of simulators to
screen at-risk pilots; simulators are a beneficial tool for testing a
person's present piloting ability and identifying any current deficiencies
in that person's piloting skills. However, the FAA found no evidence that
simulators are an adequate screen to identify future pilot deficiencies
including subtle insidious cognitive deterioration. Therefore, the use of a
simulator as a medical screen would not be a thoroughly effective tool to
identify current medical problems with an airman and would not be an
effective tool to predict which older pilots will shortly manifest medical
problems in flight. There is no dispute that older people have higher
incidences of medical problems in general and higher incidences of
insidious/subtle cognitive deficits than younger people.

Petitioners also claim the FAA did not enforce the Age 60 rule against
foreign pilots flying into the United States; however, under FAA regulations
there is no Age 60 rule in Part 129, the part that governs operations of
foreign air carriers and foreign operators of U.S. registered aircraft.
While the ICAO standard was not enforced at its inception, the policy at the
time recognized the international ramifications of insisting on compliance
with international operating requirements. In any event, the United States
worked through the difficult complexities and has for quite some time now
insisted on Age 60 compliance by part 129 operators of "large" aircraft in
the United States.

Petitioners once again raise a claim that the Age 60 rule violates the ADEA,
even though the FAA has successfully defended the rule on that basis twice,
having one U.S. Courts of Appeals hold that the ADEA does not apply to the
FAA and another court recognize that holding. Petitioners attempt to
distinguish this claim from past claims by arguing that the Age 60 rule has
no safety basis and therefore is inherently discriminatory. That claim is
inconsistent with case law and findings made in cases where the PPF itself
was a party. As case law holds, the ADEA does not apply to the Age 60
rule. Congress has had the opportunity to revisit both the Age 60 dispute
and the ADEA after these significant decisions. Congress has not seen fit
to amend the ADEA in any way that would nullify the FAA's
Age 60 rule.

Finally, petitioners claim that currently there is a pilot shortage, which
may affect the war against terrorism because military pilots are leaving the
military to join airline companies, is not true. Currently there is no
shortage of airline pilots, in fact, airlines are furloughing thousands of
pilots in response to the economic and travel industry slump since the
events of September 11, 2001. Evidence of these furloughs lies in the
number of airline pilots who commented on this petition stating they did not
want the Age 60 rule to be changed because they and many of their colleagues
are furloughed. Thousands of furloughed pilots submitted comments of this
nature. In addition, the Air Line Pilots Association (ALPA) comment to this
docket stated that 5,000 of the 65,000 pilots represented by ALPA are on
furlough.

In addition, as in past petitions that raise this same argument, the FAA
notes that changing the Age 60 rule would not have an impact on the number
of pilots leaving military service or the number of pilots in the airline
industry.

In consideration of the foregoing, I find that a grant of exemption would
not be in the
public interest. Therefore, pursuant to the authority contained in 49 U.S.C.
§§ 40113
and 44701, delegated to me by the Administrator, the petition of Butler,
Dallas E. et al for an
exemption from 14 CFR § 121.383(c) is hereby denied.

Issued in Washington, DC, on October 6, 2003.


John M. Allen
Acting Director, Flight Standards Service

to be extensive medical study in this area to prove that a