Time for a Shakeup

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 it’s 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.

This article first appeared on the AOPA Opinion Leaders blog at http://blog.aopa.org/opinionleaders/2014/01/22/time-for-a-shakeup/.

  10 comments for “Time for a Shakeup

  1. Graeme
    February 5, 2014 at 5:54 pm

    In the words of Mcenroe, “You can not be serious”. As a former Certified polysomnographic technologist, at the University of Arizona and Manager of a Sleep Lab for a very brief time, I can proclaim this is ridiculous.

    • February 6, 2014 at 4:39 pm

      Ah, you managed a sleep lab? I’d be interested to know what your thoughts are on the OSA crusade. I understand it’s not just aviation; they’re foisting this on the truck drivers and others.

  2. February 5, 2014 at 6:18 pm

    Right on! Some of the agencies need to get their priorities straight. I’m all for being safer, but some of this stuff is baseless banter and there is no data to support the claims.

    I think they need to focus on promoting aviation. Instead of putting up barriers, they need to break down walls. This industry is slowly wilting away and then there will be no need for these monolithic bureaucracies.

    They have done good work, but this isn’t their finest hour with examples like this.

    They need to get out and talk to the people.

    • February 6, 2014 at 4:44 pm

      Right on. Some people look at this as an attack on the agency, but there’s no doubting we are reaching a point of diminishing returns and accelerating costs for higher levels of safety, kind of like an airfoil flying near critical AOA. The drag is rising exponentially!

  3. February 6, 2014 at 11:06 am

    It’s not just the GA that government is killing. It’s also killing the future of humanity, literally, by the same mechanisms. See Rand Simberg’s long crusade and the book (he’s going a snazzy website for he book now – http://safeisnotanoption.com/).

    I’m not saying we should not fight the encroachment onto GA since it’s such small potatoes. On the contrary, every little bit helps. But I’m afraid that the ultimate solution is to cut the government so it literally cannot strangle us anymore and survive through the inevitable collapse. Yes, it includes cutting funds to CAMI and survive through the certificate crunch. But there is no other alternative that I can see. I am saying it as a guy who was stuck with unregistered airplane during the goverment shutdown.

    • February 6, 2014 at 4:50 pm

      I feel your pain, Pete. I’ve often thought the same thing. As I noted in the article, the regulatory burden reaches the point where the activity (in this case, GA flying) will slow and eventually stop. I look at places like Europe and see it as a cautionary tale. Others see it as the ideal model for our future.

  4. February 6, 2014 at 6:46 pm

    Oh, I so rarely disagree with you that this is exciting.

    As an engineer of sorts, the separation of mission is a beautiful design and should remain as it is.

    The key is to highlight that the NTSB makes *recommendations* based on each individual accident. That’s all. They are responsible for nothing more. VFR flight into IMC with CFIT? “All pilots should have training for entering IMC conditions.” It keeps happening, but their recommendation doesn’t need to change. They are not responsible for anything past the recommendation of a change.

    It is up to the FAA (and, truly, the rest of the federal government and even the pilot community) to decide what to do with those recommendations. I just read my NTSB reporter and the first three accidents (all fatal) are disorientation in IMC. We already have IFR training requirements for VFR pilots, so maybe eventually the recommendation is “no pilot should fly without an instrument rating” and, eventually, since humans are fallible, “no human should fly an airplane unassisted by an AI.”

    The NTSB has a thin budget and narrow mission. In computer programming that sort of thing is extremely successful. You try to build a bunch of those and link them together. If you aren’t getting the result you want, then change ONE of the components narrow mission, not more.

    I would empower the FAA to comment AND IGNORE the recommendations from the NTSB. It is totally fair to say, “The lives lost in this sort of accident, the degradation of safety, is not something we can reliably address within the nation’s aviation budget.” (Because, truly, the lives lost to undiagnosed sleep apnea are, so far, zero.)

    • February 7, 2014 at 11:52 pm

      Glad we could disagree on this one! 🙂

      You bring up a good point: the NTSB only makes recommendations. I noted that in the post, in fact. The problem is that those recommendations are utilized by others to lend credence to outrageously expensive mandates in the name of “safety”. In the OSA case, it was the Federal Air Surgeon. Sometimes it’s the Board itself via their “most wanted” list or other public advocacy efforts. Other times it’s a member of Congress or a lobbyist with their own axe to grind. It’s very easy to garner public support for these things because “safety!”.

      Speaking of the “most wanted” list, one of their current hot topics is “eliminating distractions in transportation”, including aviation. They state quite clearly that they are “vigorously advocating” for “more stringent laws and enforcement”. Sounds great, because… safety! The problem is, we use iPads and iPhones in the cockpit to communicate with the company for flight-following procedures, weather checking, and other things that are part of the job. Heck, we even file our flight plans, obtain clearances, compute weight & balance, and so on with these devices.

      Sometimes those devices keep us alert during flights like the one I just made, a 9-hour flight from Stockholm to New York in the dead of night, pitch black the entire way. They serve as backups for our other equipment, retain flight information/logs, trip sheets, and more. It should be up to the crew and the PIC to determine what gets used in the cockpit. PEDs make flying safer, and we honestly don’t need any more rules, regulations, restrictions, and costs than we’ve already got.

      I like your computer programming analogy! That’s what I’m suggesting here. Let’s change one thing: have them consider the cost of their recommendations. It would be extremely helpful to our industry, and help keep them from wasting time and effort pushing things which do more harm than good.

      • Colin
        February 8, 2014 at 11:56 am

        I still wouldn’t change the NTSB’s mandate, I would work it from the other end. Messing with the NTSB mission, especially adding to it, means expanding their reach. I would, instead, clip the wings of the other agencies. Even just saying the FAA or Flight Surgeon has to estimate the cost of a change in regulations would probably slow their roll a little bit. If you started saying that they would have to give up some of their own budget for things… then they would be a little more careful.

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