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[Senate Report 109-225]
[From the U.S. Government Publishing Office]

109th Congress                                                   Report
                                 SENATE
 2nd Session                                                    109-225
_______________________________________________________________________

                                     

                                                       Calendar No. 382
 
                              AGE 60 RULE

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 65

DATE deg.March 30, 2006.--Ordered to be printed

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                       one hundred ninth congress
                             second session

                     TED STEVENS, Alaska, Chairman
                 DANIEL K. INOUYE, Hawaii, Co-Chairman
JOHN McCAIN, Arizona                 JOHN D. ROCKEFELLER IV, West 
CONRAD BURNS, Montana                    Virginia
TRENT LOTT, Mississippi              JOHN F. KERRY, Massachusetts
KAY BAILEY HUTCHISON, Texas          BYRON L. DORGAN, North Dakota
OLYMPIA J. SNOWE, Maine              BARBARA BOXER, California
GORDON H. SMITH, Oregon              BILL NELSON, Florida
JOHN ENSIGN, Nevada                  MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia               FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire        E. BENJAMIN NELSON, Nebraska
JIM DeMINT, South Carolina           MARK PRYOR, Arkansas
DAVID VITTER, Louisiana
                    Lisa Sutherland, Staff Director
             Christine Drager Kurth, Deputy Staff Director
                    Kenneth Nahigian, Chief Counsel
     Margaret Cummisky, Democratic Staff Director and Chief Counsel
 Samuel Whitehorn, Democratic Deputy Staff Director and General Counsel

109th Congress                                                   Report
                                 SENATE
 2nd Session                                                    109-225

======================================================================

                              AGE 60 RULE

                                _______
                                

                 March 30, 2006.--Ordered to be printed

                                _______
                                

       Mr. Stevens, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                          [To accompany S. 65]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill joint resolution deg. (S. 
65) TITLE deg. to amend the age restrictions for 
pilots, having considered the same, reports favorably thereon 
without amendment deg. with amendments deg. 
with an amendment (in the nature of a substitute) and 
recommends that the bill joint resolution deg. (as 
amended) do pass.

                          PURPOSE OF THE BILL

  The purpose of this legislation, as reported, is to direct 
the Secretary of Transportation to adopt the International 
Civil Aviation Organization (ICAO) standard or recommended 
practice on age restrictions for commercial air carriers' 
pilots-in-command from age 60 to age 65.

                          BACKGROUND AND NEEDS

Domestic policy
  Since 1959, Federal regulations have specified that 
individuals age 60 and older may not serve as airline pilots on 
any flight operations covered under Title 14 Code of Federal 
Regulations, Part 121 (c). The Federal Aviation Administration 
(FAA) adopted, what is commonly referred to as, the ``Age 60 
Rule'' in 1959 because of concerns that a safety hazard was 
presented by aging pilots in air carrier operations.
  The Age 60 Rule has been a matter of considerable debate 
since the final rule was adopted. In 1959, airlines and pilots 
were engaged in a disagreement over mandatory retirement 
policies imposed by the airlines, typically set at age 60. The 
early 1960's was the onset of the age of commercial jets and 
several airlines contended it was in their economic best 
interest to recruit young pilots leaving the military who had 
flown jet aircraft rather than training its older, more senior 
pilots to transition from piston-engine airplanes to jet-
powered airplanes. Senior pilots who had been forced into 
retirement based on these company policies filed grievances. 
Although an arbitrator sided with the pilots and ordered that 
they be reinstated, management at one major commercial airline 
refused to abide by the decision and continued to enforce their 
age 60 retirement policy. This and other grievances led pilots 
to strike during the holiday travel season of 1958. To end the 
strike, the disagreeing airline agreed to many of the pilots' 
demands. However, the issue of a maximum age limit for pilots 
was not settled.
  The airline in question took its case for pilot age limits to 
the FAA, writing that it may be necessary for the regulatory 
agency to set a suitable retirement age. To bolster the 
argument for age limits, the airline provided the FAA with data 
showing that younger pilots required fewer hours of flight 
training to transition from propeller to jet airliners than 
older pilots and were more likely to successfully complete the 
training.
  As a result, two proposals were subsequently considered by 
the FAA; one to set a maximum age of 55 for pilots to receive 
certification to fly jet aircraft, and a second to set an age 
limit of 60 for all airline pilots. An expert panel was 
convened to review the proposals and the supporting data 
provided by the airline, and recommended favorably on adopting 
both recommendations, but eventually dropped the recommendation 
to limit jet type-ratings to pilots under the age of 55. 
However, when the FAA's legal counsel reviewed the proposal, it 
found that the training data did not provide a compelling 
argument for setting a maximum age for airline pilots, and 
recommended that the FAA instead focus on available medical 
knowledge in setting a maximum age for pilots. The FAA did so, 
and on December 5, 1959, published a final rule that went into 
effect on March 15, 1960, establishing that a pilot could no 
longer fly in airline operations upon reaching age 60.
  The Age 60 Rule was justified on the basis of medical 
concerns over progressive deterioration of important 
physiological and psychological functions and the risk of 
sudden incapacitation. The FAA asserted that incapacitation 
could not be accurately predicted in an individual by available 
medical tests and criteria. Furthermore, the FAA noted that age 
is associated with other factors even more difficult to measure 
and predict including the loss of ability to: perform highly 
skilled tasks rapidly; resist fatigue; maintain physical 
stamina; perform effectively in a complex and stressful 
environment; apply experience, judgment, and reasoning rapidly 
in new, changing, and emergency situations; and learn new 
techniques, skills and procedures.
  The FAA followed standard rulemaking procedures including an 
opportunity for public comments and justified the rule as a 
safety measure. Since then, opponents have criticized the rule 
as being arbitrary. Some believe that the circumstances under 
which the rule was adopted have contributed to the longstanding 
controversy.
  In the late 1990's the number of pilots and types of 
operations subject to the Age 60 Rule was expanded when the FAA 
phased-in requirements to enhance the safety of scheduled 
commuter operations and bring them under the more stringent 
rules of Part 121. Under those requirements, all commuter 
turbojets and commuter turboprop aircraft with 10 or more 
passenger seats were required to operate under the same rules 
as air carriers flying larger aircraft, including the Age 60 
Rule. During the transition, pilots over the age of 60 that had 
been flying for commuter airlines were permitted to continue to 
do so up until December 20, 1999. Today, Part 121 operations 
covers scheduled passenger operations of jet and turboprop 
aircraft having a seating capacity of 10 or more passengers and 
all-cargo aircraft with a payload capacity of 7,500 pounds or 
greater. Under the Age 60 Rule, airlines are not permitted to 
use pilots age 60 and older in these operations.
  Opponents of the Age 60 Rule presented the following 
arguments to the FAA: the rule has no basis in fact; refusal to 
repeal the rule would constitute arbitrary and capricious 
action by the FAA that would violate the provisions of the 
Administrative Procedure Act; refusal to repeal the rule 
without evidence of a need to retain it in the interest of 
public safety is inconsistent with Federal policy against age 
discrimination; and repeal of the rule would have a positive 
economic impact on the U.S. air carrier industry.
  The FAA believes that a review of all of the comments and 
relevant literature reveals that scientific or medical studies 
do not provide a definitive answer to the age 60 issue. In 
1995, the FAA said that it could not be assured that raising 
the age 60 limit would maintain or raise the level of safety 
that the Age 60 Rule offers, and on that basis, the FAA 
retained the rule. Without further medical evidence to compel 
the FAA to modify its position, it is apparent any change to 
the rule requires a legislative mandate.

International policy
  ICAO is a specialized agency of the United Nations. It is 
comprised of 188 Contracting States, including the United 
States. ICAO policies are recommended standards and practices, 
not binding on contracting States.
  Currently, ICAO's Standards and Recommended Practices states 
that ``an age limit of 60 years is established for pilots 
engaged in scheduled international air services or non-
scheduled international air transport operations for 
remuneration or hire. It is a Standard for the pilot-in-command 
and a Recommendation for the co-pilot.'' Most developed 
countries do not adhere to this age limitation for pilots.
  In 2003, ICAO conducted a survey questioning its membership 
on the continuing validity of the 60 year upper age limit for 
airline pilots with the aim of harmonizing their Contracting 
States policies.
  In 2004, ICAO received 116 replies from 112 States and four 
international organizations. Over 81 percent considered it 
appropriate to increase the upper age limit. Various age levels 
between 62 and 68 were considered appropriate; a significant 
majority favored 65 years.
  In 2005, following the survey results, a State letter was 
sent to all Contracting States proposing to change the upper 
age limit to age 65 with two modifications: (1) if the pilot-
in-command is older than 60 years, the other flight crew 
members must be younger than 60; and (2) airline pilots over 
age 60 must undergo health examinations every 6 months. ICAO 
speculates that the earliest date at which the amendment would 
become applicable is November 2006.

                          LEGISLATIVE HISTORY

  On January 24, 2005, Senators Inhofe, Stevens, and Burns 
introduced S. 65, a bill to amend the age restrictions for 
pilots.
  On July 19, 2005, the Committee on Commerce, Science, and 
Transportation, Subcommittee on Aviation held a hearing on the 
FAA Age 60 Rule. Representatives from the FAA, Aerospace 
Medical Association, Air Line Pilots Association, Southwest 
Airlines Pilot's Association, Allied Pilots Association, and 
JetBlue Airways Corporation testified about the issues 
regarding the mandatory retirement age for airline pilots.
  On November 17, 2005, the bill, S. 65, was ordered to be 
reported favorably with an amendment in the nature of a 
substitute to the Senate from the Commerce, Science, and 
Transportation Committee by voice vote in the presence of a 
quorum.

                            ESTIMATED COSTS

  In compliance with subsection (a)(3) of paragraph 11 
of rule XXVI of the Standing Rules of the Senate, the Committee 
states that, in its opinion, it is necessary to dispense with 
the requirements of paragraphs (1) and (2) of that subsection 
in order to expedite the business of the Senate. deg.
  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                                  December 6, 2005.
Hon. Ted Stevens,
Chairman, Committee on Commerce, Science, and Transportation, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 65, a bill to amend 
the age restrictions for pilots.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                               Douglas Holtz-Eakin.
    Enclosure.

S. 65--A bill to amend the age restrictions for pilots

    S. 65 would direct the Secretary of Transportation to amend 
federal regulations that prohibit pilots over the age of 60 
from operating federally regulated commercial aircraft. Under 
the bill, that age limit would be increased to 65 years. Based 
on information from the Federal Aviation Administration, CBO 
estimates that the proposed change would not significantly 
affect federal costs. The bill would not affect direct spending 
or revenues.
    S. 65 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Megan Carroll. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      REGULATORY IMPACT STATEMENT

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

Number of persons covered

  Due to the bill as reported, former pilots who have been 
forced to retire because of the current mandatory retirement 
age, but are younger than 65 years of age, would no longer be 
subject to the prohibition and would potentially be eligible to 
fly as a commercial airline pilot. Pilots under the age of 60 
would eventually have the option to fly for a longer period of 
time.

Economic impact

  Due to the bill as reported, some older pilots may decide to 
continue flying beyond their expected Age 60 retirement dates, 
and thus continue to earn a salary. Some younger pilots may not 
be promoted as quickly if more senior pilots continue flying. 
Airlines may incur the additional costs of employing some of 
their most senior pilots for five additional years. Those 
additional costs would be offset, at least in part, when the 
airlines are able to forego the costs of training younger 
pilots to replace those who otherwise would have retired 
because of the Age 60 Rule. If a pilot shortage were to affect 
small and rural communities, the bill as reported may 
economically benefit those communities by increasing the supply 
of pilots.
  The bill as reported may cause air carriers to incur the 
costs of additional or more stringent medical, cognitive, or 
proficiency testing for pilots who have reached the age of 60.

Privacy

  Within the air transportation system, the overriding need to 
ensure safety has long been settled with respect to pilots' 
expectations of privacy. Pilots who choose to fly beyond their 
60th birthdays may be subjected to additional certification 
testing or crew pairing standards.

Paperwork

  Under the bill as reported, the FAA would incur additional 
paperwork associated with the change in the current age limit. 
In addition, air carriers and the FAA may have additional 
paperwork as a result of new crew standards. Under section 3, 
the National Transportation Safety Board would be subject to 
additional paperwork associated with reporting safety 
implications, if any.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Modification of FAA's Age 60 Rule

  The Secretary of Transportation would be directed to adopt 
the ICAO standard or recommended practice within 30 days after 
the effective date of action taken by the ICAO Secretariat in 
November 2006.
  The Secretary would be only authorized to adopt the new 
modification if it is consistent with a previously agreed upon 
Air Navigation Commission directive. That directive would allow 
commercial carriers pilots-in-command to fly up to their 65th 
birthday, if the co-pilot is 60 years old or younger.

Section 2. Applicability

  Pilots who have previously been terminated or had cessation 
of employment at a commercial air carrier because of the Age 60 
restriction would be able to seek re-employment at a commercial 
air carrier. However, pilots would not be able to file suit to 
gain re-employment and cannot file suit to reclaim seniority 
under any labor agreement in effect between a recognized 
bargaining unit for pilots and an air carrier engaged in 
commercial operations.

Section 3. Reporting requirement

  The National Transportation Safety Board (NTSB), within two 
years of the modification, would submit a report to both Senate 
and House authorizing committees of jurisdiction concerning the 
effects, if any, the modification has on aviation safety.

  ADDITIONAL VIEWS OF SENATORS INOUYE, ROCKEFELLER, DORGAN, CANTWELL, 
                         LAUTENBERG, AND PRYOR

  On July 19, 2005, the Senate Committee on Commerce, Science, 
and Transportation held a hearing to examine the FAA's Age 60 
rule which raised a number of concerns about moving forward on 
legislation to alter existing FAA regulations that prohibit a 
pilot from engaging in Part 121 operations if the pilot has 
reached his or her 60th birthday.
  On November 17, 2005, the Committee approved the bill by 
voice vote in Executive Session. Despite this action we 
continue to have serious concerns regarding the repeal of the 
Age 60 rule (14 CFR 121.383(c)). Any changes to this long-
standing safety regulation should be approached cautiously to 
ensure that any potential risk is minimized and commercial 
flight remains consistent with existing safety parameters. 
Congress provided the FAA air safety regulatory authority for 
U.S., which the agency has consistently exercised in an 
impartial manner to ensure that the safety of the nation's air 
transportation system is its primary mission. As noted in the 
agency's testimony at the hearing, the FAA can not assure 
Congress that changing the Age 60 rule will maintain or raise 
the current level of safety. In fact, their most recent 
empirical studies completed in 2004 continue to indicate that 
there appears to be a relationship between pilot age and 
accident rate.
  Over the past 45 years, the FAA has thoroughly and 
comprehensively reviewed its findings on the Age 60 rule on 
numerous occasions. They continue to believe that the Age 60 
rule remains the best determination that can be made of a time 
when a general decline in health-related functions and overall 
cognitive capabilities have reached a level where decrements in 
a pilot's performance may jeopardize safety. In addition, 
several U.S. Courts of Appeals have reviewed the Age 60 rule 
and studies related to the rule, and have uniformly denied 
petitioners' challenges.
  The bill would effectively delegate U.S. safety decisions to 
an international body, despite the fact that the FAA has long 
been considered the world leader in aviation safety. In fact, 
the FAA has never delegated the discharge of its safety 
responsibilities to an international organization. We also will 
need to look carefully at how physicals pre-age 60 and post-age 
60 are performed. Many of the nations that currently allow 
pilots over the age of 60 to pilot for their commercial 
airlines have stricter recurring flight medical examinations 
than are currently conducted in the U.S. If Congress moves 
forward with legislation regarding the Age 60 rule, this matter 
must be adequately addressed prior to altering existing 
regulations.

                        CHANGES IN EXISTING LAW

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, the Committee states that the bill as 
reported would make no change to existing law.

                                  
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