March 15, 2000 The Age 60 Rule: How It Came To Be

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by	Vincent Czaplyski
	Contributor

Career coup de grace. The best thing that ever happened to a seniority list. A moral outrage. Take your pick -- the FAA's so-called Age 60 Rule has been called these and many other things. Where does the rhetoric end and the truth begin? That, apparently, depends upon one's perspective: junior or senior pilot, career DOT bureaucrat, airline management or white-knuckle passenger. The rule, enshrined in section 121.383{c} of the Federal Aviation Regulations, mandates that a pilot may not fly in revenue service for a Part 121 air carrier upon reaching his or her 60th birthday. A look back at the rule's origins suggests that politics had more to do with its enactment than did findings of medical science, or otherwise well-documented concerns about air safety. Despite numerous challenges to its existence, including a recently-decided U.S. District court case, the rule remains in place. For the foreseeable future at least, it will continue to affect the career of any pilot who flies for a Part 121 air carrier.

How it all started

How did the Age 60 Rule come to be? As the decade of the 50s neared an end, there was no federally-mandated retirement age yet established for commercial pilots. However, the major airlines had begun to devise and unilaterally institute pilot retirement plans that called for retirement at age 60. This was in keeping with how these companies treated other employees. The Air Line Pilots Association (ALPA), which represented the pilots of these carriers, opposed age-based retirement as a matter of policy. Eventually ALPA began to challenge company-imposed age-based retirements through the grievance process. (ALPA would later reverse its official position on this issue, and today supports a continuation of the existing Age 60 Rule.)

According to S. D. Woolsey (Commercial Aviation's "Age-60 Fraud," Danville, Calif., September, 1992), the first trio of such grievances took place during 1958-59, directed against TWA, Western and American Airlines (whose pilots at the time were represented by ALPA). Interestingly, Western and TWA management used medical and flight-safety arguments to support their positions. ALPA, though, succeeded in rebutting these points. In each case, a neutral arbitrator decided the grievance in favor of the union, and against the airline.

C. R. Smith (1899-1990) Gen. Elwood R. (Pete) Quesada (1904-1993)

But possession, as an old legal adage points out, is nine-tenths of the law. American Airlines founder and CEO C. R. Smith, unhappy with the arbitrator's decision, refused to reinstate the three pilots who had brought the retirement grievance at his carrier. This issue (and a variety of others) eventually provoked ALPA to call for a strike against American. After a 21-day walkout, the pilot group claimed victory in regards to most issues. CEO Smith would not, however, allow the three pilots to return to work.

C.R. and Pete's back-room deal

Without a legal basis for his actions, Smith turned to a tried-and-true method for getting what he wanted: the old-boy network. He contacted a longtime friend and associate, General Elwood R. (Pete) Quesada, who just happened to be the first appointed administrator of the newly-created Federal Aviation Administration. In a letter dated February 5, 1959, Smith implored his old friend to proclaim age 60 as a federally-mandated retirement age for pilots. Quesada obliged almost immediately by proposing what we now know as the Age 60 Rule. (This episode is documented in a series of letters between Smith and Quesada, which were obtained from internal FAA files as the result of a Freedom of Information Act lawsuit.)

In the best of smoke-filled-room tradition, the FAA issued its Notice of Proposed Rulemaking (NPRM) less than one month after Quesada received Smith's personal entreaty asking for such a rule. The NPRM included three versions of the regulation, intended for air carrier, air taxi, and general aviation pilots. Written comments were then accepted, but no hearing was ever held at which the proposal could be debated. Despite broad industry opposition to it from a variety of aviation organizations, the Final Rule, pertaining only to air carrier pilots, was published on December 5, 1959. It became effective on March 15, 1960.

Quesada referred to certain "medical uncertainties" concerning pilot health after age 60 as the primary basis for issuing the rule. To avoid end runs around the regulation based on waivers and exemptions that might have been sought by pilots, it was not made part of the medical section of the regulations (Part 67). Instead, it was placed in the operational part of the FARs (Part 121), making it immune to any such attempts by individuals.

There is one especially fitting footnote to this early chapter in the ongoing saga of the Age 60 Rule. Administrator Quesada retired from the FAA in January of 1962, and was immediately elected to American Airline's Board of Directors.

The FAA's story (and they're sticking to it)

Not surprisingly, FAA officials offer a somewhat different interpretation of events. The agency maintains that standard rulemaking procedures were followed back in 1959 (despite the lack of a public hearing on the matter). The rule, it insists, "…was promulgated in order to maintain a high level of safety in part 121 operations." Most assuredly, it "… was not issued to facilitate the operations of any air carrier." To paraphrase a popular country western song, that's their story and they're sticking to it. Oddly enough, the official docket for the 1959 rulemaking process was lost while in the agency's possession. This fact, which came to light during subsequent lawsuits over the matter, made procedural challenges to the rulemaking process difficult for plaintiffs to pursue in court. Go figure.

(The agency's views on the Age 60 Rule are available on the Web at http://www.connix.com/~markh/age60.html.)

In any case, once it became law, the Age 60 Rule opened up a firestorm of controversy that continues to this day. Faced with growing criticism over its unilateral actions in creating the regulation, the FAA pointed to the medical arguments it raised during the 1959 rulemaking process. The agency noted then that a progressive deterioration of certain important physiological and psychological functions occurs with age. It observed that "significant medical defects" occur due to age-related degeneration of the body. It stated that sudden incapacity due to medical defects such as heart attacks and strokes can occur without warning. Most alarming of all, the FAA said that such problems occur with greater frequency in any group reaching age 60, and that there is no way to predict with certainty which individuals will most likely experience such problems.

Can the rule be justified?

Critics demanded hard-and-fast proof from the FAA that would justify the agency's conclusions. Over the years, the agency has offered up a variety of medical and aviation safety studies to support its position. A look at these studies, though, shows that they do not clearly implicate the pilot population over age 60 as a safety menace. In some cases, the studies did not look at this particular subgroup of pilots. In others, they failed to follow objective accepted methodologies that would have given them validity. In still others, they seem to have fallen victim to political maneuvering that again detracted from their usefulness in addressing issues surrounding the Age 60 Rule. The result is that considerable disagreement still exists within the medical and aviation safety communities over exactly what risk is represented by continuing the careers of pilots beyond age 60.

For instance, the FAA's own Civil Aeronautical Medical Institute (CAMI) regularly reports on medical certification issues pertaining to pilots in this country. In 1990, CAMI published a report specifically dealing with the health of Part 121 airline pilots. The authors note that company pre-screening of airline pilot candidates and the requirements for issuance of a first class medical certificate result in the group being "essentially purged of disease prevalence that contributes to higher rates in non-pilot groups."

In 1989, the Government Accounting Office published a study of the Age 60 Rule at the behest of a member of Congress. In its report, the GAO referenced seven major studies used by the FAA to justify continuance of the Age 60 Rule. Interestingly, upon closer examination, some of these studies would seem to support just the opposite position.

Questionable studies

The first of the seven was the United States Navy's "1000 Aviator Study." This report followed the health of 1000 military pilots over a period of time. Among its conclusions, the authors pointed out that pilots in the study appeared to have a lower risk for a variety of disease processes compared with similar-age populations, and that then existing medical testing was capable of identifying subgroups at higher risk of certain diseases.

A second study referenced in the GAO report is one entitled "The Georgetown Clinical Research Institute Study, 1960s." Funded by the FAA itself at a cost of $1.2 million, it was intended (among other goals) to justify a proposed change to the existing air traffic controllers' retirement system. It did not specifically seek to study pilot health. Originally planned to last 30 years, it was terminated by Congress after little more than five years, when an audit revealed that no meaningful data had been collected. Nor had any recognized methodology for analysis of data even been developed. Despite being lambasted as a colossal waste of time and money, the report was nonetheless resurrected by the FAA and used to justify continuance of the Age 60 Rule.

Another health study, conducted in conjunction with the Georgetown study, was known as "The Lovelace Foundation Studies, 1960s." Unlike the Georgetown study, it looked only at the health of airline and some military pilots. It too was harshly criticized as being flawed by the same government committee that terminated the Georgetown study. And it too was used by the FAA to support its position on the Age 60 Rule. Interestingly, though, the authors declared that the study's participants represented a "super select group" of individuals, "characterized by generally longer, healthier and more productive lives than the population as a whole."

"The Bohannon Report" is yet another study referenced in the GAO report. It is noteworthy because it was commissioned by the FAA in 1969 to address directly the health issues raised by the Age 60 Rule. As such, it would appear to carry more weight than the previously-mentioned studies. Its author was R. L. Bohannon, M.D., former Surgeon General of the U. S. Air Force. Unfortunately for the FAA, in his report Dr. Bohannon recommended that the agency forget about using age as the determining criteria. Rather, he suggested that a method of pilot medical certification be adopted based on the identification of specific risk factors within the pilot population. Presumably because it conflicted with the agency's official position on the matter, the FAA did not release the report, or even publicly acknowledge its existence, until 10 years after its completion.

The FAA tried again in 1979 to find a study that would definitively support the Age 60 Rule. It commissioned a private consulting firm, Goddard & Associates, to undertake an "unbiased" study to determine whether or not the Age 60 Rule should be retained. Goddard & Associates was headed by James L. Goddard, M.D., Civil Air Surgeon during the late 1950s when the rule was proposed and adopted. This time, the report's conclusions unequivocally supported the FAA's position on retaining the Age 60 Rule. However, in a subsequent lawsuit, an FAA medical official testified that he had recommended the study be performed in order to defuse congressional interest in amending the rule. The same official also admitted to selecting Dr. Goddard to head the study, since he knew Dr. Goddard had been a proponent of the rule since its inception. Thus, the supposed "unbiased" nature of this study is seriously suspect.

Other studies relied upon by the FAA in support of the Age 60 Rule contain flaws in methodology that cast doubt on their true usefulness as objective policy-making tools. One, titled the "Golaszewski Study," again commissioned by the FAA, was intended to look at the incidence of accident rates in various segments of the pilot population. It was never accepted or published by the agency, however, because of major data deficiencies and other problems that were eventually identified. Nevertheless, with full knowledge of these flaws, the FAA submitted the report as a finding of fact in court, while defending a 1990 lawsuit challenging the Age 60 Rule.

No medical basis for rule, says the NIH

A final year-long study referenced in the GAO report, undertaken by the National Institute of Health (NIH) and the Institute of Medicine in 1981 at the behest of Congress, was yet another intended to shed light on the Age 60 Rule controversy. This report concluded that there existed no medical basis for the rule. An NIH committee later convened to review the report's findings recommended that the rule be retained temporarily, that it be extended to Part 135 operations, and that a select group of older pilots be exempted from it, in order to assess the feasibility of medically qualifying pilots over age 60 on an individual basis.

The FAA responded to these recommendations by publishing an Advance Notice of Proposed Rulemaking (APNRM), in which it proposed extending the Age 60 Rule to include flight engineers (something the committee did not suggest). It ignored its recommendation to extend the rule to Part 135 pilots. It did solicit comments on the feasibility of a test program to study a group of captains able to fly until their 62nd birthday. But after two years with no official action taken, the ANPRM was withdrawn by the agency.

In 1985, the NIH formally abandoned its previous position on the Age 60 Rule and decided instead that medical testing of pilots after age 60 was both possible and desirable. It stated that such testing would allow them to safely continue flying after age 60 in commercial aviation, and that ongoing testing represented an alternative that was preferable to the current age-based rule.

77-year-old John Glenn in space

And the controversy continues

And so the saga of the Age 60 Rule continues. Born of backroom politics, it has survived through nearly four decades of legal and political wrangling. The battle shows no sign of waning as supporters and detractors continue to debate the implications of a pilot's 60th birthday.