Time for a Shakeup

January 22nd, 2014 by Ron Rapp

Last November the Federal Air Surgeon, Fred Tilton, unilaterally declared that mandatory screening for obstructive sleep apnea (OSA) in pilots would begin “shortly.”

The initial BMI threshold would be 40, with an ominous vow that “once we have appropriately dealt with every airman examinee who has a BMI of 40 or greater, we will gradually expand the testing pool by going to lower BMI measurements until we have identified and assured treatment for every airman with OSA.”

Tilton noted that “up to 30% of individuals with a BMI less than 30 have OSA”. Between the fact that people with normal-range BMIs have been diagnosed with sleep apnea and his apparent zest for uncovering “every” airman with OSA, logic dictates that the eventual threshold would be in the mid-20s, if not lower.

The aviation community was up in arms pretty quickly, and for good reason. For one thing, the mid-20s are the upper end of the normal BMI range. It’s also worth noting that even the World Health Organization acknowledges that the BMI scale was never designed for application to individual people, but rather for statistical modeling of entire populations. BMI is based solely on weight and height, so it does not account for differing body types. Nor does it obey the law of scaling, which dictates that mass increases to the 3rd power of height.

In plain English, a bigger person will always have a higher BMI even if they are not any fatter. This penalizes tall individuals, as well as bodybuilders and athletes who are in prime physical shape by assigning them absurdly high BMI numbers. Likewise, short people are misled into thinking that they are thinner than they are.

Nevertheless, Tilton declared his intention to press on anyway, without any industry input or following established rulemaking procedures despite the fact that this scavenger hunt would break invasive new ground in aeromedical certification.

Then, even the Aviation Medical Examiners objected to the new policy, noting that “no scientific body of evidence has demonstrated that undiagnosed obesity or OSA has compromised aviation safety” and that providing long term prognoses is not part of the FAA’s job. The medical certification exists soley to “determine the likelihood of pilot incapacitation for the duration of the medical certificate.”

Without the support of the civil aviation medicine community, Tilton was literally standing alone. At that point, Congress jumped into the fray on the pilot community’s behalf and eventually forced the Air Surgeon to back down… for now.

While the battle may have been won, the war is far from over. Mark my words, this is not the last you’ll hear about this bogeyman. Tilton may be forced to consult with the aviation community or follow a rulemaking procedure of some sort, but his zeal for the topic means OSA screening will be back in one form or another.

To effectively combat such overreach, we’ve got to attack the problem from its true source. In this case, the Air Surgeon’s ammunition came from National Transportation Safety Board recommendations issued in the wake of a 2008 regional airline flight which overflew its destination by 26 miles when both pilots fell asleep.

… the National Transportation Safety Board recommends that the Federal Aviation Administration:

Modify the Application for Airman Medical Certificate to elicit specific information about any previous diagnosis of obstructive sleep apnea and about the presence of specific risk factors for that disorder. (A-09-61)

Implement a program to identify pilots at high risk for obstructive sleep apnea and require that those pilots provide evidence through the medical certification process of having been appropriately evaluated and, if treatment is needed, effectively treated for that disorder before being granted unrestricted medical certification. (A-09-62)

The NTSB serves a useful purpose in assisting transportation disaster victims and investigating accidents, but when it comes to safety recommendations, the agency operates in a kind of vacuum, divorced from some of the most pressing realities of the modern general aviation world. The reason is simple: their mission statement. It calls for the Board to “independently advance transportation safety” by “determining the probable cause of the accidents and issuing safety recommendations aimed at preventing future accidents.”

While there’s nothing objectionable about their mission, note how there’s no mention of the cost these recommendations impose on those of us trying to make a go of it in the flying industry. Since it’s not part of their mission statement, it is not a factor the Board takes into account. It doesn’t even appear on their radar. The Board’s federal funding and their lack of rulemaking authority negates any such considerations. So a sleep apnea study costs thousands of dollars — so what? If it prevents one pilot from falling asleep in the cockpit in next half century, it’s well worth the decimation to an already down-and-out sector of the economy.

That’s been the logic for the NTSB since it was conceived by the Air Commerce Act in 1926. It worked well when aerospace safety was at its nadir — but that was nearly ninety years ago. As air transportation evolved during the 20th century, attempts at increasing safety have reached the point of diminishing returns and exponentially increasing cost. At some point the incessant press toward a perfect safety record will make aviating such a sclerotic activity that it will, in effect, cease.

It’s a problem for any industry, and it’s especially so for one that’s teetering on the edge of oblivion the way ours is. The good news is that this can be fixed. It’s time to shake things up at the NTSB by revising their mission statement to make cost analysis a major part of the Board’s function. They should work with stakeholders to carefully study the long-term effect each recommendation would have on the health and size of the aviation industry before they make it.

For what it’s worth, the FAA needs this mission statement adjustment just as much as the NTSB. More, in fact, because the NTSB can recommend anything it wishes, but the regulatory power to act upon those suggestions is outside their purview and rests with the Federal Aviation Administration. From medical approval to burdensome aircraft certification rules, the FAA is the hammer. We have to start somewhere, though, and the NTSB is in many ways the top of the heap, the place where these ideas get their start. It would be nice to see the industry’s lobbyists in Washington, D.C. suggest such a bill to members of Congress.

One final thought: if government’s power really does derive from the “consent of the governed”, this should be an idea even the NTSB (and FAA) can get behind. Otherwise, they may convene one day and find that there’s not much of an industry left for them to prescribe things to.

Ron Rapp

Ron Rapp is a Southern California-based charter pilot, aerobatic CFI, and aircraft owner whose 7,000-plus hours have encompassed everything from homebuilts to business jets. He’s written mile-long messages in the air as a Skytyper, crop-dusted with ex-military King Airs, flown across oceans in a Gulfstream IV, and tumbled through the air in his Pitts S-2B. Visit Ron’s website.

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The opinions expressed by the bloggers do not reflect AOPA’s position on any topic.

  • http://www.iflyblog.com Brent

    Ron,
    Extremely well said. If businesses ran like this they would never make a dime. The NTSB, and other goverment agencies, would do well to think like a business.
    I like your suggested solutions. Very reasonable.
    Brent

    • http://www.rapp.org/ Ron Rapp

      Yes, it’s important for the regulatory agencies to keep business concerns of those on the other side of the table in mind. At the end of the day, people have got to earn a living, and we can’t all work for the government.

      There are simple things that can be done to ease these burdens. I was talking to a friend today who works with various 135 operators and was reminded that the same regulations apply to all, yet every FSDO interprets interprets them differently.

  • mf

    let me, please, offer a somewhat contrarian opinion. Sometimes a regulatory body tries to do something stupid. Sounds to me like sleep apnea rule is one of these cases. More often than not the reason for the overreach is that wrong individual has been appointed to a position of authority. When this becomes apparent, the rational thing to do is to purge the individual. It is perhaps not as rational to try to change the structure of aviation oversight because of this one case. While I do fly small airplanes for fun, and I do appreciate (very much so) the cost aspect, I am also a member of the public that has to patronize airlines. We had more than enough evidence that FAA, which has a dual mandate similar to what is being called for in this post for NTSB, sometimes compromises on safety because of economic considerations. The NTSB has been at least a little bit of counterweight, though most of the time ineffective. I would personally be very hesitant to compromise this already poor safety valve even further.

    It is far more reasonable to argue that rules for people who fly recreationally should be made significantly different than rules for commercial pilots, particularly pilots flying for airlines.

    • http://www.rapp.org/ Ron Rapp

      Thanks for your thoughtful response. I understand where you’re coming from, but I’d be more inclined to agree with you if the overreach hadn’t been so egregious. Even if the OSA policy had only been suggested for airline pilots, it would still be a bad idea for the same reason that conceding user fees on one segment of the aviation ecosystem would be a bad idea: it would most certainly trickle down to the rest of us. Once the precedent is established, there is no stopping it.

      I’m not sure the FAA has any sort of dual mandate. If you’re referring to the relationship between some FAA inspectors and the airlines they oversee, that’s a fine balance which can be difficult to maintain. And it’s a completely different situation. Airlines, especially these days, are massive multi-billion dollar businesses with no small number of attorneys on staff. They are more than capable of holding their own with the FAA.

      The rest of us, however…

      • Mike Fink

        I am a retired airline pilot, 37 yrs, and would like to add a comment or two.
        The dual mandate of the FAA, poorly handled in my opinion, is to oversee and enforce safety issues AND to promote the flying industry. This has been an identified conflict of interest for years.
        I think the NTSB has and does serve a great purpose but should be immune to a “vendetta” individual having the power to go off of the deep end with no evidence or facts to support his case.

  • Neil Archer

    This is a continuation of the governments push to ground general aviation by any means that is available to them. They are creation rules by edict. The FAA is following the lead of the EPA, IRS, INS in this effort to make general aviation too difficult and too costly for the average person. And as you can see from the decrease in pilot numbers, FBOs, manufactures and number of hours flown by GA, and it is working

    • http://www.rapp.org/ Ron Rapp

      It’s not just aviation. Look at the growth in the number of pages in the Code of Federal Regulations.

      1949: 19,335 pages
      2005: 134,261 pages
      2011: 169,301 pages

      Like I said: sclerotic.

  • S.S. McDonald

    If my memory serves correctly, federal law requires that ONE member of the NTSB Board must be a licensed A&P mechanic IA. No such person serves on this board. I have several times applied and been ignored by the bureaucrats.

  • Paul

    I think that NTSB should make any recommendations they want and should not be burdened by requirement to investigate how feasible that is and what cost implications are. They could recommend every aircraft to have pillows on the wings if they want to. It is the task of FAA and flying public to determine feasibility of those requirements. Some NTSB recommendations may seem quite crazy at the time but as technology moves forward we may find that things that were prohibitively expensive are not so expensive anymore. So I am all for NTSB recommending anything they want.

  • Jack Daniels

    It’s the same thing with color vision issues. They caused me to withdraw from flight school because of the uncertainty it led to when it came to my career. They recommended new standards due to a crash in Tallahassee, which happened when an FO who was color deficient was flying.
    http://www.ntsb.gov/doclib/recletters/2004/A04_46_47.pdf
    They blamed the color vision deficiency as a contributing cause (fatigue being number one). They didn’t mention the fact that the other 2 pilots (with NORMAL color vision) looking at the same runway and same PAPI lights didn’t mention 4 red lights at ALL. Or the PAPI’s known issue with condensation at the time which can fool even color “normal” observers. This led to the FAA to stop issuing the Letter of Evidence based on passing an approved alternative color vision test, which means you have to pay EXTRA and TRAVEL extra every single time you need to renew your medical to RETAKE the test that you can pass (some are RARE and very difficult to locate). Either that, or you can PURPOSELY FAIL an office based test in order to get approval to take the new Operational Color Vision test and Medical Flight test. And by the way, you only get ONE SHOT at that.. So if it’s bad sunlight behind the light gun, or if you have a bad day, you are screwed. 10′s of thousands of dollars down the drain for your training, and your career GONE. You, and your family ON THE STREET. It’s just another case of an organization trying to make a problem where no problem exists in order to justify their own existence, at the expense of countless other peoples careers. It’s a common theme, in corporate america too.

  • MH

    Allow me as well to offer a somewhat contrarian opinion. The concept of the NTSB being ‘unencumbered’ by constraints such as cost-viability is a good one; it enables a more widespread net to be cast when making recommendations. Typically, NTSB recommendations are crafted so as not to be overly prescriptive- a good rec will proffer a specific goal, while simultaneously avoiding any specific solution paths to that goal. The design and implementation of those solutions rightly falls on the target agencies who are most intimate with the industry, such as the FAA or manufacturers. In the ideal world, this structure provides the NTSB the opportunity and responsibilty to be the ‘brainstorming’ element, with the big safety picture in mind, and the FAA/manufacturers/etc to be the executors of viable safety improvements. Unfortunately, it doesnt always work out that way, as we have seen here. And the reasons for that are unknown to me, and i suspect are manifold as well. Thankfully, we have other agencies such as the AMEs and AOPA to help inject sanity when the FAA fails to. As designed, this is a good system, but as always, sometimes things dont go perfectly. But calling for wholesale re-design of a generally satisfactory system due to one aberration is overkill and an unwise allocation of resources.

    Re the one commenter’s posting that the government is out to eliminate GA, I would offer that its more appearance than actual intent; sadly, although the FAA and NTSB have many GA enthusiasts, their passion is often drowned by the bureaucracy, and some rather unpalatable rulings result.

    Finally, there is no requirement for any NTSB Member to be a licensed A&P

    • http://www.rapp.org/ Ron Rapp

      I’m not sure I’d characterize my proposal as calling for a “wholesale re-design” of the system. I recognize that, on the whole, our aviation industry has worked fairly well over the past century. To paraphrase Winston Churchill, ours is “the worst system in the world — except for all the others.”

      I simply believe that we’ve reached a point of diminishing returns where failing to consider the cost of aviation safety recommendations or rulemaking can do more harm than good. The color vision example given above is one such instance. The recent OSA dust-up is another. I can provide an excellent example from my own career concerning the way the FAA severely limits the work opportunities available to Part 135 contract pilots.

  • Evan C

    While I understand the point that is being made, the NTSB was design to be “in a vacuum,” it was created with the sole intent of issuing recommendations to the Department of Transportation. Its purpose of being in the vacuum is to issue safety related “recommendations” unencumbered by things such as cost analysis. This removes outside pressures from industry, and politics to keep them from making biased decisions. To revise their mission statement to include the revision of cost analysis and impact on the industry as a whole would negate their purpose.

    As you stated their recommendations are nonbinding, and non-regulatory. The FAA, FHSA, FRA, et al, take those recommendations and decide if it is necessary and prudent to turn them into binding regulation. In fact your entire commentary really is a reflection upon the FAA and the Federal Air Surgeon. Therefore, it is the FAA that needs to take into account the economic impact that would be caused by implementing a rule.

    I would like to note, that while I make the above response, I do not support the rule in question. I feel that it is inaccurate and unfair to those who suffer from sleep apnea and the rule over simplifies and casts a wide net on who would be impacted.

    • http://www.rapp.org/ Ron Rapp

      I can see your point of view, Evan. The NTSB has no power to regulate anything. They can only suggest. And you’re right, operating in a vacuum keeps the Board free from pressure or influence. But with our industry in such dire straits, the time for change is at hand.

      Just as one mustn’t carelessly yell “fire!” in a crowded theater, perhaps the Board needs to consider the cost — financial and otherwise — of their recommendations, because they become the ammunition used by the Federal Air Surgeon, FAA, and others to justify their own actions. And as we have learned the hard way, once those regulatory wheels start turning they often cannot be stopped. Look at what it took to halt the OSA policy: literally an act of Congress and a mutiny on behalf of the Air Surgeon’s own medical examiners.

  • Douger

    There’s nothing binding by the NTSB offering “recommendations.” They’ve got a list a mile long of recommendations that the FAA hasn’t seriously considered.

    Is sleep apnea a problem? I don’t know. There are many accidents where very experienced pilots did inexplicably stupid things. Are morbidly obese people (BMI over 40) more susceptible to sleep apnea? I don’t know that either. I wonder where the number came from.

    I do believe that the FAA was more than hasty in pulling the trigger on this recommendation and I suspect that their trying to slip the notion under the radar means they’re lacking in solid information with which to make an informed decision. Why? I don’t know that answer either. Given my overall lack of faith in government, I wouldn’t discount some form of political influence.

    I believe it’s incumbent on the FAA’s Aeromedical division to assemble a body of study that supports their apparent contention that sleep apnea is causing airplanes to fall from the sky and present that to the players involved, or reconsider the implementation of the regulations.

    I believe that the person responsible for the decision to bypass the normal rule making process should be removed from that position of authority. The justification for such action is simply lacking and shows a profound lack of judgement.

  • Dan Biezad

    Many decades ago I became one of those pilots of large jets who woke up over the Pacific to the realization that I was the only one in the cockpit awake. This is one of many reasons in my flying career leading to my belief that the NTSB should not have economic or marketing factors in its charter. The sanity or suitability of its recommendations must meet scrutiny and pass the laugh test, but their eventual acceptance is the responsibility of the greater flying community, such as the author of this article, who I believe should have left his strong reservation against this proposal without hooking it to economics.

    Today’s headsets have Bluetooth inputs. If I were still flying over the Pacific, and the one responsible for staying awake, I would use that input with my iphone’s timer function as necessary to solve this problem. I assume there are better ideas out there, many of which superior to the NTSB recommendation.

    • http://www.rapp.org/ Ron Rapp

      Fatigue has been, is, and will continue to be an issue we have to grapple with. I know whereof you speak — I’ve made plenty of overnight transcon, Atlantic, and Pacific crossings myself. Just made an overnight one last night, in fact.

      Fatigue is one thing, but this OSA issue should not be confused with it. Fatigue is a problem because we operate odd and uneven schedules. It’s a problem because you’re up there in the dark with the autopilot flying straight-and-level for hour after hour after hour. It’s a problem because airplanes today have enough range to fly a third of the way around the world without refueling. Those things take a toll even if you’re an Olympic athlete with a “perfect” BMI who is properly hydrated, rested, and fed.

      I wish I agreed with your contention that “their eventual acceptance is the responsibility of the greater flying community”. What I’ve seen is that the rules can be imposed on us even if nobody agrees with them.

  • ABRUNS

    This is a money grab. Nothing more. Nothing less. I’ve yet to meet anyone who has gone to for a “sleep test” and not come home wagging a CPAP behind them. There is a lot of insurance money to be had by sending as many suckers as possible for a “sleep test” and sticking them with a CPAP to have to try and sleep with when they get home. Its a gimmick, a con, and any other name you want to attach to it to contribute to our health care costs. There is no doubt there are a few people who need medical help that a CPAP can address, but I seriously doubt that it is as many as is claimed by those in power.

  • Rich Lemanski

    The job of the NTSB is to do precisely what they are being criticized for. It is up to the FAA, the airlines, the entire airplane industry, and the public to decide if some recommendation is too expensive, not feasible, etc. If the NTSB should start “holding back” on recommendations for fear of cost considerations or political reasons, etc. then they become a worthless “puppet” agency influenced by every company, corporation, politician, and lobby group. The NTSB will maintain its integrity and true usefulness by telling it like it is – exactly what went wrong, why it went wrong, and accurately saying what must really be done to fix it. Anything less is fudging and a reprehensible disservice to us all.

  • http://yahoo joe

    I agree with Rich.

  • dparrish

    I concur with Evan C. The ‘S’ in NTSB pretty much states its [hopefully] untainted mission toward safety. Perhaps some solutions could more thoroughly considered before being recommended; but, none should be influenced by fiscal or political issues.

    “But with our industry in such dire straits, the time for change is at hand.” I’m not sure the NTSB directly contributes either to the health or harm of the industry. If an aircraft and the procedures to operate it, as well as procedures to operate within the NAS, cannot be made reliable* and economically justifiable then the problem could be of more fundamental nature.

    * the definition of ‘reliable’ in this context is a debate itself.

  • Gerald Kosbab

    Rich is right-on with his assessment. It is the FAA’s responsibility to review the NTSB recommendations then propose rule making (if appropriate). The rule making process includes the requirement for economic impact analysis and public comment, through which we should all participate. Attempts to bypass the process (sleep apnea, for instance) can then be dealt with through appropriate channels, including Congressional intervention if necessary.

    As a certificated pilot with a BMI under 25 and sleep apnea (successfully treated for over 5 years), I take particular interest in the underlying issue of the article. NTSB did it’s job by surfacing the issue and leaving it to the powers to be to determine the appropriate action. IMO, FAA overstepped it’s authority by attempting to impose new requirements without following the rule making process. Let’s keep the focus on FAA accountability and let NTSB continue to provide their independent recommendations.

    • http://www.rapp.org/ Ron Rapp

      Re: “NTSB did it’s job by surfacing the issue and leaving it to the powers to be to determine the appropriate action”, I believe they did more than surface the issue. They made specific recommendations which I quoted above.

  • BOK

    I’m surprised the AOPA editors approved this opinion piece. It seems the author misunderstands the objectivity required in proper safety prevention efforts. The NTSB, with it’s non-regulatory charter, is designed precisely TO make any and all recommendations regarding transportation safety specifically without concern for economic effect. There are many other regulatory bodies, including FAA and congress, whose job it is to weigh risk vs benefit in appropriating funds and implementing NTSB recommendation.

  • Bob G

    Typical Out of Control government agency. The FAA does what it wants, when it wants for no obvious sound reason. FAA’s new slogan “Were Not Happy Till Your Not Happy”.

  • NRydman

    I’ll put my 2 cents in and support the NTSB. It’s not their job to worry about impacts on politics or industry. They do their best to collect the facts best they can and produce recommendations to avoid future disasters. With luck, wise industry leaders and politicians (I like to think there are some) are suppose to take said recommendations under advisement as they produce their plans and policies- and thereby AVOID the future need to explain to lawyers, boards of inquiry, families of the deceased, etc. why they didn’t take such recommendations seriously in the first place.

    To further illustrate, should health experts, FDA, and policy makers take into account the “big picture” of the tobacco industry when all evidence shows that smoking is bad for you?

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