Aviation Gets a Congressional Star Turn

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If you were paying attention to the news last week, you may have noticed that the otherwise chronically broken Congress actually proposed a bi-partisan budget package. Now letís not delude ourselves into thinking strains of Kumbaya will soon be pealing from the Capitol and the members will be caroling on Pennsylvania Avenue, but this little outbreak of cooperation may have positive consequences for aviation.

Specifically and without undue prodding, Congress got busy pushing back on two critical issues, the FAAís plan to require sleep apnea diagnosis for medical certification and the very idea that the Third Class medical requirement is still viable. Itís not unusual for Congress to dip deeply into the affairs of government agencies; thatís what they do, after all. But I canít recall a confluence of Congressional involvement in two important aviation issues occurring so quickly.

First, the proposed sleep apnea diagnosis. Iím surprised that FAA air surgeon Fred Tilton stumbled into this mess. Mid-level agency executives are usually a lot smarter about whatís going to stir up the masses enough to invoke the wrath of Congress. They like to avoid that sort of thing. Yet, by administrative fiat, Tilton decreed in early November that all pilots over a body mass index of 40 would have to be tested for obstructive sleep apnea (OSA) and that eventually, the agency wants to extend that to lower BMIs. Hereís Tiltonís announcement. (PDF) Itís breathtaking in its potential scope, cost to airmen and utter lack of supporting data demonstrating how aviation safety will be improved or even anything showing that OSA is a threat to aviation safety. Earlier this month, the House introduced a bill to require the FAA to follow standard rulemaking procedures for this proposed new requirement.

What stuns me is that Tilton didnít have his ducks in a row on this, attaching links to convincingly show how OSA is causal in aviation accidents to the extent that itís worth the enormous expense he is proposing to address this issue. Could it be there are no ducks to line up? My guess is the convincing data doesnít exist. Yes, the NTSB has opined (PDF) on this subject, but largely in the context of fatigue in general, with apnea as but one factor. In other words, Tilton may be proposing an expensive fishing trip, to be paid by pilots seeking medicals.

If you break through the crust of all the coverage on sleep apnea, you soon see that it has become the condition du jour, the suddenly discovered silent killer of the masses. How could civilization have endured so long with the scourge of sleep apnea? An entire industry to treat it has emerged and doctors are being shown how they can make lots of money in the burgeoning field of ďsleep medicine.Ē In this story, NPR reported that Medicare payments for sleep testing increased nearly four fold between 2001 and 2009, from $62 million to $235 million. According to the report, a company called Aviisha specializes in sleep testing and lures physicians with a picture of a doctor with a stack of cash in his lab coat pocket. Not to say the sleep medicine business is entirely a racket, but you can see the potential for abuse. I suspect Tiltonís proposal will be seen as playing into this. If Congress forces rulemaking, perhaps weíll get a look at what data is supposed to support how OSA treatment will materially improve aviation safety.

Of course, if there werenít a requirement for medicals, expensive OSA treatments wouldnít be a requirement, either. And thatís the idea behind a bill introduced last week by Rep. Todd Rokita, an Indiana Republican whoís also a pilot. The bill would expand the use of the driverís license medical certification to allow pilots to fly aircraft up to 6000 pounds, VFR in non-commercial operations. It doesnít eliminate the Third Class, but rather reduces the scope of operations where it's required. If passed, itís a huge step forward, but thereís one thing about it I donít like: it doesnít allow IFR operations. This makes no sense to me, for instrument skills and operations have always been seen as a means of improving safety. Itís counter-logical to say that itís medically stressful or that it should require a higher degree of medical screening. My guess is itís thrown into the bill as a bone and Iím not really complaining. We have to start somewhere on eliminating the Third Class and this is a positive development.

But itís not without negatives. While I donít think the elimination or curtailment of the Third Class will kill the light sport industry, it will put a dent it, especially for some manufacturers. Many LSA buyers are older pilots who have the wherewithal to pay cash for $130,000 airplanes. Some are doing that because theyíre selling their Bonanzas or Skyhawks out of medical-loss fear. They see LSAs as lifeboats to extend their flying career. If fear of medical loss no longer propels them, light sport will lose some sales. So be it. Itís unreasonable to expect light sport to sustain on the back of a medical requirement that has long since outlived its usefulness, if it was ever useful. ††††

How these two issues play out will be interesting to watch and will likely be another case study in how bureaucracies protect their castles by maneuvering around Congress. Itís always amusingóor maybe infuriatingóto attend public meetings where FAA mid-level or even administrator-level executives talk the talk about supporting GA and removing regulatory barriers. Yet here are two examples where they are doing just the opposite. Elimination of the Third Class medical wonít instantly stimulate GA growth, but it will surely reduce the erosion of the pilot population, which is the next best thing. Tiltonís sleep apnea proposal is just bizarre. I have little doubt that many pilots on the verge of bailing from GA will be encouraged to do just that when confronted with a requirement for $3000 worth of OSA testing and then living with a CPAP machine. Personally, Iíd rather take up crack smoking than look and sound like Darth Vader when getting ready for bed. But thatís just me. Either way, it ought to be my choice, not the FAAís.

Join the conversation. †Read others' comments and add your own.

Comments (31)

This is what happens when bureaucrats instead of persons with real aviation experience run a government department. It doesn't help that President Obama does not support aviation either. It will be interesting to see, if both bills actually pass congress, if the President will sign it.

Posted by: matthew wagner | December 15, 2013 8:35 AM    Report this comment

Interesting. So, it isn't about what pilots and the people want, it is about what sleep diagnostic companies want (money), what doctors want (money),and what LSA manufacturers want (money). Big surprise there.

Posted by: Sam Strohl | December 16, 2013 4:52 AM    Report this comment

I, too, would prefer IFR both for the safety of increased training and active control. The FL140 restriction doesn't account for mountainous areas, whether destination or waypoint. If you're allowed 250 KTS, then the plane is certainly capable of FL 180+.

It may not be perfect, but let's get this camel's nose under the tent!

Posted by: Jim Thomas | December 16, 2013 6:39 AM    Report this comment

This confluence of Congressional action is very exciting based on the recent struggles between the two parties to pass any effective legislation. This opportunity should provide both parties a chance to look like they're actually doing something, as these issues affect Democrats and Republicans alike. Real bi-partisanship in action, and no reason for the President not to sign as it won't cost any political capital.

With that said, and understanding the legislative process, what is in the bill now, may not be what the bill looks like at the end. The bill must pass both chambers, and Senate will likely introduce it's own version, and the two versions will be reconciled. There is still time for modifications, like IFR (for safety) and an 18,000 ceiling (for the Mountatin People). I agree with the concept of the camel's nose under the tent, but we should be working with our legislators in both chambers to get it right (or as right as possible) from the start.

With respect to the death of the LSAs, I have no sympathy, as they are a lousy solution to a non-problem (especially if this legislation passes). They are a compromise aircraft, and essentially a single place aircraft with limited speed and range, as the requirements were imposed with a top down government approach, vice a bottom up requirements based approach. Good riddance.

Lastly, I am extremely glad that Congress is involved in the sleep apnea issue, as this is unwanted and unwarranted governmental intrusion. BMI was never intended as a medical diagnosis tool, but a tool to study population variances. A 40 BMI is unhealthy, but the the FAA is overstepping its authority and bypassing normal procedures in pushing forward regulating GA using the BMI. There is precedence for regulating commercial operations where public safety of paying customers is an issue, but not regulating private operations where profit is not involved (it's the extrapolation of the Interstate Commerce Clause and Congress chartering federal agencies). So this actually goes back to the FAA overstepping its authority with the Class 3 medical, which should never have been allowed in the first place.

This will be an intersting journey to watch, and I recommend all concerned contact their legislators in both chambers of Congress.

Posted by: John Wrenn | December 16, 2013 7:38 AM    Report this comment

Restricting freedom through laws and regulations is the sole action government can take regarding any issue. Like a giant zip-tie, it only tightens. A proposal to reverse this trend certainly falls in the "man bites dog" category so I will believe it when I see it !

Posted by: A Richie | December 16, 2013 8:55 AM    Report this comment

It's amazing that Congress is wading in, especially in a bi-partisan way. I first became somewhat interested in Congress's activities as a kid, some 60 years ago. It was shocking to me then how ineffective it was, and it's been downhill ever since. There have been some exceptional legislators over the years on both sides of the aisle, but their rarity in "the club" has been palpable.

But it's also amazing to me that Fred Tilton is pushing this sleep apnea thing. As a very active pilot and physician, it's out of place for him. This guy is an ATP, type rated in the Citation, CFII, Class II medical (special issuance)--you'd think he'd be more attuned to the effects of the FAA's medical policies on Joe Average Pilot. But perhaps just because he's who he is, a stratus level above Joe Average Pilot, his arrogance shows in his disregard of (and in fact disdain for) the normal rule making process.

Time for a reality check, right?

Posted by: Cary Alburn | December 16, 2013 8:59 AM    Report this comment

Will be interesting to see the status of these issues come time for Oshkosh and if an administrator comes to take the heat in person....

Posted by: David Viglierchio | December 16, 2013 9:55 AM    Report this comment

"This guy is an ATP, type rated in the Citation, CFII, Class II medical (special issuance)--you'd think he'd be more attuned to the effects of the FAA's medical policies on Joe Average Pilot."

ATP (especially with more stringent rules coming in place to get one), and typed-rated in the Citation. I think those two alone speak to how out-of-touch he is with "Joe Average Pilot". It really scares me when you get people like him who are apparently elitist and think only the medically best-of-the-best should be allowed to fly, as though it is as physically demanding as sending the first astronauts into space and the moon.

Posted by: Gary Baluha | December 16, 2013 11:55 AM    Report this comment

"Elimination of the Third Class medical won't instantly stimulate GA growth" you wrote.

I'm thinking "Yeah, actually it just might!" I'm too fat for LSA and my medical is only lapsed, never denied. After reading this, I actually looked at aircraft for sale last night. This indicates pent-up demand.

I don't know how many pilots are in the exact same circumstances as me, but I bet it is more than you thought about when you wrote that.

Posted by: Bruce Liddel | December 16, 2013 1:06 PM    Report this comment

I'm curious to see what the FAA will say about the bill in a hearing.

Posted by: Jerry Fraser | December 16, 2013 2:53 PM    Report this comment

Paul, I believe what is going on here is a power struggle. Congress is so weak that there is a power vacuum, with the result that the agencies seem to be trying out rulemaiking by fiat. It's not just the FAA, the FCC is also making a run at things. I am guessing that the FAA assumes that Congress is incapable of stopping them -- and they may be right.

Posted by: Mike Culver | December 16, 2013 6:59 PM    Report this comment

JEOPARDY: Intelligent animals for $600? Is a "jackass" smarter than an "elephant"?

Posted by: Rod Beck | December 16, 2013 10:15 PM    Report this comment

This is disqualifying about 120,000 of the present active pilot population, Air Traffic Controllers and some LSA pilots. Scary...

"While this policy focuses on obstructive sleep apnea, you as AMEs must also be on the alert for other sleep-related disorders such as insomnia, parasomnias, or restless leg syndrome; or other physical anomalies such as a retrograde mandible, a large tongue or large tonsils, or neuromuscular or connective tissue disorders, because they could also be signs of problems that could interfere with restorative sleep."

Posted by: Rafael Sierra | December 16, 2013 11:02 PM    Report this comment

"...they could also be signs of problems that could interfere with restorative sleep."

I guess credit checks are next, because of potential sleepless nights worrying about overdue bills. Let's not forget about pilots who are parents of newborns - or of teenagers, for that matter. I guess the medically-perfect pilot is an independently-wealthy skinny guy with no kids, who doesn't give a crap about anything - so he has no worries and sleeps like a baby.

Posted by: Thomas Yarsley | December 17, 2013 7:00 AM    Report this comment

"While this policy focuses on obstructive sleep apnea, you as AMEs must also be on the alert for other sleep-related disorders such as insomnia, parasomnias, or restless leg syndrome; or other physical anomalies such as a retrograde mandible, a large tongue or large tonsils, or neuromuscular or connective tissue disorders, because they could also be signs of problems that could interfere with restorative sleep."

In the late '90s, as a VP of Marketing and Product Development of a successful medical product company, we did a review of sleep apnea. We thought it might be a profitable business investment. After a review of the medical literature available at the time, I concluded it was not a wise investment. Why? Because the data suggested that ~60% of males evidenced symptoms of sleep apnea. To me, this suggested that this was NOT an abnormal sleep behavior, but a normal sleep behavior. I thought re-imbursement for treatment would not be issued, or, if it was, soon be cancelled by insurers, Medicare and Medicaid. Why pay to treat a normal sleep behavior?

Well, I was obviously wrong about my business decision. Many companies, sleep labs and physicians have made a lot of money from such diagnosis and treatments.

Now, with no substantive data to support a hypothesis of sleep apnea being a causal risk to the public, this proposal seems way off base.

Posted by: Edd Weninger | December 17, 2013 12:50 PM    Report this comment

Once or twice should have covered it, Edd...

But I agree with you, another ruse in the name of safety by the fearful for manipulation and control of the, generally, fearless and trusting. I concede the dumbing of society is in high gear, but how can they be that obtuse that we pilots wouldn't see through it?

And I'll second what Thomas said and tell the whole world - my arthritic hip some nights can deliver such sharp pain as to make sound sleep just a dream. I also have a 17yr old teen. And a lovely Thrush Nightingale who mistakenly serenades me for a mate some nights outside my bedroom window. Sleep is optional when she is around.

Posted by: Dave Miller | December 17, 2013 2:55 PM    Report this comment

I am somewhat mystified about the seemingly many concerns that are offered about the new bill before congress in that it limits flight to 14K ft. I am a private pilot with 1500 hours flying time; the last 1000 hours of which were in an F-35 Bonanza. I have flown in virtually every state in the continental U.S and I have never had to go over 10.5K, and that was to top the waning end of a line of thunderstorms that ran from above Milwaukee to south of Chicago.

I have flown over the Rockies and the Sierras numerous times, and probably never exceeded 8,000 ft. Unless someone intends to fly in Alaska and not pay attention to the peaks, I challenge anyone to do any meaningful flying in the Continental U.S. and require having to go to FL14. It is not required to fly over the highest point to get to any destination. And Alaska, although it has many peaks above 14,000 ft., is not entirely above 14,000 ft., it is only the peaks that are that high. It is much better to cross over the lower spots which the majority of small airplanes can handle; and since this is limited to VFR flying, there should be no problem picking out and seeing the lower terrain.

As I said, my max. was 10,500 ft. I do not have oxygen on board, and for a non-smoker, it should not be required at those altitudes. My understanding is that 10K ft. altitude is an arbitrary limit set by the military for use of oxygen above that altitude. I am certain that the number of people with aircraft that can exceed 250 kts. and can go above FL14 are few and far between. It is totally incomprehensible that the restriction of 14K ft. will hamper the flying of any well qualified pilot.

Posted by: Keith Henry | December 17, 2013 3:39 PM    Report this comment

The purpose of medical certification is supposed to be to make sure the plane doesn't crash from pilot medical incapacitation.

Since that almost never happens clearly that goal has been met. And it was not solved by medical certification since the sport pilots don't crash due to pilot medical incapacitation at a higher rate than medically certified pilots.

Setting any further medical standards past the appropriate goal of keeping the too sick out of the pilot's seat is just unnecessary and an improper government function.

So we are doing what the people do when the government runs amuck. We take the problem away from them.

That's what we are doing now through our elected representatives. "You are ordered not to deal with this issue going forward". That's it. This function is now removed. "Don't worry about it anymore".

It's gonna be over.

Posted by: Steve Waechter | December 17, 2013 3:51 PM    Report this comment

We were told our new and improved web site was supposed to reduce the incidence of double and triple posting. They lied. I apologize for this, but you can avoid it if you just push post once and let it simmer.

Sure enough, in a minute or so, the comment will post. It's sometimes faster, but I dunno why. I will delete the doubles. But Edd, you score the first known triple on our new system. We're sending you a hat...

Posted by: Paul Bertorelli | December 17, 2013 4:16 PM    Report this comment

Light Sport was supposed to be the panacea that would reinvigorate GA but -- now almost a decade later -- only the well heeled can afford one of the decent LSA's. The 1320 pound MGTOW disallows substantial crashworthiness to be built in and thus BRS' are commonplace. The airplane one gets is not useful at all ... unless you're talking about a Carbon Cub's stellar takeoffs.

The FAA is worried about aging aircraft because almost no one can afford a new airplane. The pilot population is aging and onerous rules (sleep apnea, third class medical, et al) finally get to the point where -- as Paul points out -- many are inches from throwing in the towel.

If GA is to be saved, SOMETHING has to be done. Keeping the pilots we have IS the first tactic that needs to be taken. Finding ways to lure new pilots into the fold can follow once we put a finger in the dike.

This pilot feels that the 'new' version of recreational pilot (as proposed by AOPA and EAA) is actually better than that earlier well done proposal. In an instant, if the third class medical were eliminated, the value of used compliant airplanes would soar, pilots no longer fearing to lose their medicals might be lured to buy new and the whole replacement cycle could begin again.

Light Sport doesn't have to die as a result of such a move. If we can get the Feds off their butts with the GA revitalization act, light sport manufacturers might be able to build a ~2000 pound airplane for the long hoped for 'affordable' level. Wouldn't THAT be a novel idea?

Posted by: Larry Stencel | December 17, 2013 8:52 PM    Report this comment

I wonder if the push for an OSA testing rule would be as strong if the regulators who dreamed up this silliness were also required to abide by its provisions.......

Posted by: David Gagliardi | December 18, 2013 9:44 AM    Report this comment

Keith, you've missed some of the most beautiful parts of the mountain west, if you really think it's possible to stay below 10,500' and still safely get across the Rockies. If you never went over 8,000' to cross them, I'm really curious what route you used. I can't find a single route where that's possible to do safely--emphasizing "safely". Because that's where I live, I've been flying in the mountain west all of my flying life, over 41 years, except for the first 6 months, which were in Alaska. There have been many times in which if I couldn't go to 14,000', I couldn't have gone at all. How did you do it?

Posted by: Cary Alburn | December 18, 2013 9:48 AM    Report this comment

Keith,

Where on earth are you flying the Rockies and Sierra's at 10.5K altitude? I am a Utah based pilot and fly both of these ranges extensively. Even 11.5K is marginal on the routes I have flown. Now that I have a more powerful engined experimental I routinely fly 14.5-15.5K with oxygen for safety. Like Carl mentioned, what routes do you fly?

Posted by: Ric Lee | December 18, 2013 10:23 AM    Report this comment

That is congresses job, to reign in and over see. So no I don't think its a bad thing that they are fixing a problem that only they can fix. The legacy of such a divided congress might be that they might tackle other issues, so they can go home and feel like they have done something. Democrat or Republican, I am sure they all feel a pressing need to pass something meaningful. I just did not agree with the everything is broke at the FAA, comment at the end of the choice. And while I don't love the kingdom builders at the FAA I am glad they move more slowly or we would see lots more trendy new rules and mandates like BMI-OSA. Congress may not have the political will or capital to save us from the next silly rule they implement. And the comment from the 1500 hour pilot who has been all over the country including the Rockies while never needing to be above 10,500 needs to know about the strong winds over the mountains combined with high pressure create mountain waves, and in turn he might find himself full power, pitched for Vx, with VSI showing 1500 ft per min descent above terrain unfriendly to aircraft. There are also real benefits associated with getting up high above the weather and the ice that comes with it, as well as the true airspeed increase and the subsequent fuel saving. DEN MBW RKS FBR SLC or a southern route down past Moab Farmington? Maybe 10500 6000 lbs to FL 180, not commercial, IFR or VFR without a 3rd class would be a nice compromise.

Posted by: John MacDonald | December 18, 2013 10:27 AM    Report this comment

Gentlemen, time to bend over , head berween knees and kiss GA goodbye.

Posted by: Rafael Sierra | December 18, 2013 12:26 PM    Report this comment

Gentlemen, "Never give in, never give in, never; never; never; never - in nothing, great or small, large or petty - never give in except to convictions of honor and good sense"

-Winston Churchill, at Harrow School, UK, Oct. 29, 1941

Posted by: Dave Miller | December 18, 2013 2:02 PM    Report this comment

A word of clarification in regard to my flying experience; I do believe that I have about as much experience and expertise in regard to flying as the average pilot, beginning in 1956. I will confess that it has been quite a while since I have flown. I am awaiting the congressional ruling in regard to elimination of the third class medical requirement, rather than jump thru the FAA's bureaucratic hoops of which I am about two-thirds the way thru, and I will buy another Bonanza.

I do not recall at present what the highest altitude was which I crossed any mountain passes. I do know that I have done a LOT of mountain flying, and 10.5K is the highest I ever had my airplane, and I was nowhere near a mountain, just trying to clear a line of thunderstorms. Possibly the highest point that I crossed was departing eastbound out of Salt Lake enroute to Nebraska. As I recall, it was high enough that I was not able to go directly over the mountain. I had to circle a few times to clear the pass where I intended to go, and I was the only occupant in the airplane, so I was not overweight. What that altitude is I do not recall; however it would be obvious looking at a sectional. I do believe that I have done much more mountain flying than the average pilot has done.

As I said in my original discussion, it is not required to clear the highest point along a particular route. To me it is much more advisable to choose the lowest ridge, within reason and cross there. I believe that it takes a considerable amount of experience to be able to comfortably navigate mountain terrain. My first experience was in a 65 h.p. Luscombe. I crossed a 3500 foot ridge west of the San Joaquin Valley. To make certain I cleared it I was at 5500 ft., and I was as nervous as could be. After much experience doing so, and in a better equip airplane I learned that as one travels up a mount side, if a "sinker" is encountered, the infamous 180degree turn rapidly moves the ground away from you. The most critical time I learned was the moment when you cross the ridge; before and after that the ground is lower than the airplane. Once that occurs, the ground generally begins descending rapidly. I have crossed numerous ridges with only a couple hundred feet clearance. Once one gets some experience at mountain flying, it is not all that difficult. The most critical time is when you near the ridge. However, as the case when I was a young pilot, I do not recommend that for beginners.

I will reiterate, I believe I have flown as much as the average pilot and I have as yet to see the need to fly at FL14 anywhere in the continental U.S. Concerning the person that likes to get above the ice, etc., I believe that unless one is flying an aircraft that has an infinite supply of 600degree F air in the appropriate places, it is suicidal to be flying in icing conditions with ANY small plane.

Posted by: Keith Henry | December 18, 2013 2:50 PM    Report this comment

As I read the comIments made in Avweb and APOA by pilots, there is one theme that seems to stand out. It seems the pilots are their own worst enemy. They begin to argue among themselves with some of the most negative comments about the possibility of these two new rule makings by the FAA and Congress. It would seem that the arguments should be directed toward the FAA other than each other. Support of H.R. 3578 and the second class medical should be the target. Comments should be more postive to the congress when that time comes and to the FAA when that time comes. I intend to wait until it is time to take action in both support or against and use what ever means I can to help the majority of pilots win. Stand ready to contact your congress representative and Senator. Fill their desk with your demands.

Posted by: sammy moser | December 18, 2013 3:45 PM    Report this comment

Sammy Moser, the pilot population is the most disconnected population in the world. The sky could be falling but only a few would try to save the many. I have no hope for a united front to remedy this as most pilots just don't care. In California, a few years ago one individual, Marc Santacrose, led the way to a save to what could have been a disaster in flight training. I was one out of about 150 flight instructors involved in helping some 10,000 others stay in business. The majority never realized the mess the California AB48 bill would have created.

Posted by: Rafael Sierra | December 18, 2013 6:11 PM    Report this comment

Vote them all out!!!!

Posted by: Phil Hamilton | December 22, 2013 7:38 PM    Report this comment

My family practice doctor is relatively young, thin, healthy, and has a 17" neck so he would have to undergo a sleep study at, perhaps, a cost of $5,000 dollars. As a retired airline pilot I would have been swept up in this completely unnecessary net at considerable expense and loss of income. And for what? With no studies, no proposed rule making process, no chance to comment, and no research Dr. Tilton is off 'Tilton' at windmills (sorry, that is weak but I am a pilot and pilots are drawn to juvenile humor). The current administration is pretty heavy handed at imposing rules and regulations without the science to support the action but, in fairness, we have fallen into this pattern at all levels of government and we should be pushing back. Perhaps we should look at the pressures put on individual pilots and crews in today's environment to see how that affects fatigue. Perhaps we should recommend that Dr. Tilton look at including pilots flying freighters in the recently revised hours of service and rest regulations, if safety is truly his concern. And certainly we should be vocal. John Snidow

Posted by: John Snidow | December 26, 2013 11:40 AM    Report this comment

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