The Why, What, Who & When of Sen. Inhofe’s Pilot’s Bill of Rights 2

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On November 18, the Senate Commerce, Science, and Transportation committee held a markup session in which Pilot’s Bill of Rights 2 (PBOR2) was passed and sent to the full Senate. S.571 was introduced by the Senior Senator of Oklahoma on February 25, 2015.

The Committee Markup, a closed November 18 meeting at which an amendment offered by Sen. Joe Manchin (D-W.Va.) was passed. This GA Pilot Senator’s language would “allow hundreds of thousands of pilots who have held a valid third class medical, either regular or special issuance, within 10 years of the legislation’s enactment to fly without needing to get another FAA medical exam. It would apply to pilots flying VFR or IFR in aircraft weighing up to 6,000 pounds and carrying up to five passengers at altitudes below 18,000 feet and speeds up to 250 knots.” The fact that a final package is being sent to the Full Senate is a significant legislative milestone; for few bills ever reach that point.

  • Why did the Senator introduce PBOR2?
  • What does S.571 provide?
  • Who are the supporters and opponents?
  • How does the status second bill of rights compare to the original procedurally?
  • What is the likelihood that it will pass both Houses and be signed by the President?

 

The Why

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Sen. Inhofe (R-OK) is an accomplished pilot; for example, he may be the only Member of the Senate to have circumnavigated the globe piloting his own aircraft. His logbook shows over 11,000 hours. He is an aggressive advocate for General Aviation. As noted in this US News & World Report article, the 81 year old legislator may not be favorably inclined towards the FAA:

“In 2011, the senator ran afoul of the FAA when he landed a plane on a closed runway at a rural South Texas airport even though there was a giant yellow X and trucks on the runway. Workers on the ground scrambled to get out of the way. The FAA told him he had to take remedial piloting lessons before he could fly again. But Inhofe had the last word. He persuaded Congress the following year to pass a bill giving pilots more rights when dealing with FAA disciplinary hearings.”

S.571 has 68 cosponsors; so if all of them vote “aye” when the Majority Leader brings it to the floor, it should pass there.

 

The What

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CONGRESS.GOV summarizes the critical provisions as follows:

“This bill directs the Federal Aviation Administration (FAA) to issue or revise medical certification regulations to ensure that an individual may operate as a pilot of a covered aircraft without regard to any medical certification or proof of health requirement otherwise applicable under federal law if the flight meets certain criteria and the individual:

  • possesses a valid state driver’s license,
  • complies with applicable medical requirements associated with that license,
  • is transporting five or fewer passengers, and
  • is operating under visual or instrument flight rules.”

Other significant provisions would create substantial procedural rights in the NTSB proceedings involving FAA certificates other than pilots:

“The Pilot’s Bill of Rights is amended to authorize any persons adversely affected by an FAA decision to deny, suspend, or revoke a covered certificate or impose a civil penalty to file an appeal with the National Transportation Safety Board or, without further administrative review, in the U.S. district court or the U.S. District Court for the District of Columbia. This subjects all FAA-issued certificates involving an adverse action to review.”

 

The “ayes” and “nays” of the interested parties

Focusing on the medical certificate, the proposal to relieve Part 91 pilots from an annual medical review has been a major objective of AOPA and EAA for years. They filed a petition for rulemaking with the FAA asking for the lesser standard. That document languished for what they considered an inordinately long time within the bowels of 800 Independence Ave. (FAA HDQ) and at the DoT. So they went to Congress and asked for a legislative mandate to enact their proposal. Senator Inhofe obliged with S.571.

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As noted in a letter from the 17 aviation community leaders sent on November 16 to the Republican and Democratic leaders of the committee, strongly urged action by saying:

“…the aviation community, including general aviation pilots, aircraft owners, operators, businesses that utilize aircraft, mechanics, manufacturers, physicians, pilot unions, and state aviation officials, we are writing to express our strong support for the Manchin substitute amendment during Committee consideration of S.571, the Pilot’s Bill of Right 2.”

That is a list of very well-known and capable aviation experts. What stands out in the signatures block is that the Allied Pilots Association and the Southwest Airlines Pilots’ Association, both commercial pilot unions, support this GA safety measure; their planes will be in the same airspace as the self-administered health test. GA pilots who are also doctors and dentists, represented by Flying Dentists Association and Flying Physicians Association, also supported this new medical standard.

On the other hand, the NTSB, by its Chairman in 2014, indicated strong concerns about the change to the 3rd Class Medical Certificate. At a hearing of the House Subcommittee on Government Operations, Hart said, “We’re very concerned about pilots flying without adequate medical standards…” He explained that “we base our policy based on what we see in accidents and so far we haven’t seen enough accidents to warrant an agency position on it. But we are very concerned about [pilots] not only not having to have a medical, but then in addition to that, if you don’t have a medical, you’re less likely to pay attention to the FAA’s list of prohibited drugs as well as illegal drugs.” [emphasis added]

In that they earn fees from mandated medical examinations, the Aerospace Medical Association submitted a letter of opposition to the FAA. Their professional judgment was clearly expressed, as follows:

“…we are deeply concerned about the consequences of removing the medical certification requirement from certain Federal Aviation Administration (FAA) Third Class noncommercial flying certificates, and relying solely on the qualifications of a state-issued automobile driver’s license. We feel the passage of this proposed bill would not be in the best interest of our nation’s public safety, nor indeed our nation’s pilots, and so are against it in its current form.” [emphasis added]

Their three page letter substantively critiqued the Inhofe bill with five well-articulated arguments. Yes, there may be some bias, but then again, they know the well-being of this class of humans better than others.

The one anomaly in the “record” is the absence of an official position of the Administration. The “all deliberate speed” with which the FAA/DoT handled the Petition for Rulemaking suggests something less than an endorsement, but the failure to take an explicit stand on S.571 is most curious.

 

PBOR1 v. PBOR2 procedural comparison

PBOR1 was unusual, almost unique, in aviation legislation annals. The Bill was not subjected to hearings in either the Senate or the House. The votes by both of these august bodies were taken by “voice”; that is whoever is the Presiding Member asks for all members present to respond orally to the passage by responding to “aye” or “nay”. The “ayes’ had it both times; so there is no record of who voted for or against the bill. S.1335 – Pilot’s Bill of Rights was introduced on July 6, 2011and signed by the President on August 3, 2012. That’s record time and legislation bereft of any substantive commentary in committee, on the floor or in any reports.

It is impressive that the Senate Commerce Committee has held a markup and that S.571 has 68 cosponsors. That, however, constitutes one legislative step to which S.1335 was not subjected. Is that significant? Only time will tell.

The House may be a different matter. At the House Subcommittee on Government Operations hearing, a couple of Representatives made very negative quotes. The cosponsors of H.R. 1062 number 151 Representatives and the leadership has assigned the bill to four committees for review. Giving jurisdiction to that many bodies slows down the process and guarantees that it will be harder to move HR. 1062 for a floor vote. According to an EAA Forum post, “[t]he $100 Hamburger staff has contacted two organizations that track bills and express an opinion on their likelihood of passage. They say the Pilot’s Bill of Rights 2 has less than a 5% chance of passage.”

 

Likelihood of Passage

The less than 5% assessment seems very pessimistic. Inhofe and the House co-sponsors (Rep. Graves {R-KS} and Lipinski {D-IL} are skilled in the ways of this process. Unlike PBOR1, there have been concerns expressed (NTSB, AsMA) about the lesser medical threshold for flying a GA aircraft.

At this point, predictions would be at best a guess. If and when S.571 is placed before the Senate, there will be a better basis for assessing its likelihood of passage. Whether HR 1062 begins to get attention in the House will also be telling. The remainder of this legislative year has limited calendar days (Thanksgiving and the Holiday recesses) and several critical bills must be passed.

Soon, NO. Eventually, only maybe.

 

ARTICLE: AeroSports Update: PBOR2 Scheduled For Major Milestone In Senate Committee—Pilots Rights And Third Class Medical Reform Takes Another Positive Step Towards Becoming A Reality

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9 Comments on "The Why, What, Who & When of Sen. Inhofe’s Pilot’s Bill of Rights 2"

  1. The medical changes per PBOR2 were incorporated into PL114-190 mid July and the FAA says they will issue new/revised rules by January as required by the law. I can’t find any related NPRM. Would an NPRM not be required because this change is educated by law?

  2. Corrections to previous post. 1)PL114-190 was signed into law mid-July. 2)Should be “edicted”, not “educated” in last sentence.

  3. Ken Jones–as I remember, the PBOR2 did not include an self-executing section; so the FAA will have to issue a NPRM. which could be directly effective. Here is where the FAA would file whatever document it issues https://www.federalregister.gov/ The FAA has ignored a number of Congressional deadlines over the recent years.

    • Sandy – I don’t find a related NPRM. Therefore, it seems unlikely that the FAA will meet the deadline. Is there no justice? What is the remedy for the FAA’S ignoring Congressional deadlines? If they fail to comply with the law by the required deadline (“Not later than 180 days after the date of enactment of this Act, the Administrator of the Federal Aviation Administration shall issue or revise regulations to ensure that an individual may operate as pilot in command of a covered aircraft if—”), would not their affected rules be invalid? Their rules would not be in compliance with the law. Does this represent the “swamp” that the President-elect talks about draining?

  4. They have another day, but even if they don’t publish, there is no remedy. The Congressional mandates against the FAA have a long history of the FAA’s ignoring the deadlines, most recently on UASs. To be honest, the Congress has issued so many of these “requirements’, the FAA can legitimately respond in Court that the Hill’s expectations are unreasonable, especially when the Members continuously cut the FAA’s staff. In any event, when the rule is finally issued, there likely will be some gap between issuance and effectiveness. Just FYI, the NTSB is not a big fan of the change in the medical standards,

    • The FAA says they will meet the deadline which, if I count correctly, is 11 January. I hope they do. I just don’t see how, assuming an NPRM is required. Thanks.

  5. Ken Jones– a final rule was issued today, two days before the deadline effective May 2017–https://www.faa.gov/news/updates/?newsId=87125

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