Below you will see the BFA's official response to the Balloon Pilot Medical NPRM. We have done our best to represent you in this issue knowing that the base results had already been determined by Congress. We will continue to work with the FAA in the future in hope of minimizing the impact of the new rule.
Pat Cannon, BFA President
BFA RESPONSE TO DOCKET NO.: FAA-2021-1040, NOTICE NO. 22-02
Medical Certification Standards for Commercial Balloon Pilots
The following is the official response from the Balloon Federation of America (BFA) relating to this Notice of Proposed Rulemaking.
The Balloon Federation of America finds this proposed rule to be ill-advised, over reaching in its scope, and with the potential to do considerable harm to the sport of ballooning in general and specifically to many medium to small, often “mom and pop” balloon ride businesses. This NPRM is the result of the politicizing of a horrific, tragic accident, and it overlooks what we believe are two key factors, namely, the FAA’s inability to effectively administer the proposed rule’s provisions, and the fact that the BFA, the industry and FAA were already taking steps to “self-police” balloon ride operations to enhance public safety. Let’s address the specifics…
In the wake of the tragic accident in Lockhart, Texas on July 30, 2016 (referenced in Section E, page 11 of the Notice) a committee representing the BFA met with Mr. John Duncan, the then air transportation division manager of the FAA Headquarters in Washington, D.C. This meeting was organized to discuss the possible implications of the Lockhart inspired NTSB recommendation to the FAA to:
Remove the medical certification exemption in 14 Code of Federal Regulations 61.23(b) for pilots who are exercising their privileges as commercial balloon pilots and are receiving compensation for transporting passengers. (A-17-34)
At that meeting the BFA shared details of a policy document known as the Envelope of Safety (EOS) that it was developing through its Professional Ride Operators division, which among its provisions, would require individual PRO member pilots and companies to require second class medicals. These actions were taken within the ballooning and insurance industries to improve safety within this segment of aviation.
Almost immediately after the Lockhart accident. hot air balloon insurance providers began requiring commercial pilots, whether working for a professional ride operation, or if individually flying a balloon large enough to transport 6 or more, to obtain a second class medical as a condition of obtaining insurance coverage. To provide a rough estimation, this required approximately 20% of commercially rated pilots to obtain a second class medical and this group is estimated to be conducting 80% of commercial balloon rides in the US. The remaining 80% of commercial pilots were conducting small numbers of commercial rides – or conducting commercial operations that did not and were exempted by insurance for this limited commercial work.
In short, the BFA, industry, and the FAA had recognized the need to improve passenger safety in balloon ride operations, prior to the actions of Texas Senator Cruz and Congressman Doggett’s legislation to amend 14 CFR FAR 61.3 and 61.23 to require “all” commercial balloon pilots to have a second class medical.
Efforts were already underway to address the NTSB recommendation without the need for a Congressional mandate attached to the FAA’s future funding. Indeed, further discussions were held between the BFA and an assigned FAA representative to discuss the formulation of a possible future regulation to require second class medicals for those commercial pilots carrying passengers for hire, not “all” commercial pilots as written into the legislation and subsequently this NPRM. We pursued our discussions with our FAA representative as to what the wording should be and were led to believe that the FAA had the ultimate power to structure such a rule change appropriate to aviation. We were also repeatedly told that this was a low priority for the FAA and it would be some time, if ever, that the rule making would occur.
Those further discussion included the BFA’s position, then and now, that any medical requirement for commercial balloon pilots should be limited to those operating balloons of such size as to legally transport 6 or more passengers. Further, it is our position that pilots conducting other types of commercial balloon operations, those that do not involve passengers for hire, should be exempted from any medical requirement. These operations can include but are not limited to carrying advertising banners, and special shape balloon operations, which are often grounded displays. Because of their nature, special shapes rarely carry passengers on any basis. Our FAA representative involved in those discussions at the time, balked at this exemption based on his personal commercial experience.
Subsequent to our FAA point of contact being reassigned, the BFA was left without contact for over a year. Then in late 2019, after being introduced to our new FAA contact, we were informed that they were beginning work on the drafting of language and at a point, we would no longer be able to discuss this issue with the FAA.
The BFA is strongly opposed to the inclusion of commercial operations, as stated in Section B of the NPRM, that do not conduct paying passenger activities. There is no more risk to the flying public in these activities, which include commercial advertising contract flying and special shape flying, than private ballooning for sport.
Ballooning does not have a separate CFI certificate. Flight training is a privilege granted commercial pilots. In the discussion of the proposed rule, section B, we agree with the proposal to exclude commercial balloon pilots performing flight instruction from this rule. This would be consistent with the rules of FAR 61 for airplane and helicopter flight instructors, with the exception that balloon instructors would be allowed to exercise flight instruction privileges for all flight instruction provided, even when also acting as pilot in command, without a medical. The BFA stands behind this decision as it has minimal effect on risk to the flying public and a student pilot is not considered to be a paying passenger.
We believe our position is in concert with the NTSB recommendation of a second class medical for “pilots who are exercising their privileges as commercial balloon pilots and are receiving compensation for transporting passengers” while the legislation (and the resulting NPRM) for “ALL” commercial pilots is a vast overreach that is not supported by fact or circumstance and was written by politicians that have no first-hand knowledge of the ballooning industry or of the damage that the “Commercial Balloon Pilot Safety Act of 2018” will do.
We also have a very great concern of the overreaching consequences of this ruling should it result in pilots becoming disenfranchised with ballooning because of this ruling. If, as a result of this rule, we see a significant number of pilots decide to leave the sport, the watershed effect could be devastating to the future of ballooning, including the effects of fewer commercial pilots to train new pilots (unlike fixed wing operations, ballooning does not have a separate CFI rating so instruction is done by commercial pilots), extremely adverse effects on manufacturers, repair stations, and even insurance for a still smaller market. While Congress initiated these actions, the FAA is still charged with “encouraging and developing civil aeronautics”. To that end, it is the FAA’s responsibility in rulemaking to make those rules as they best support aviation and with the least burden to those impacted. We do not feel that the implementation of this new rule, with strict adherence on the words of Congress, is serving the aviation community properly.
Can the FAA effectively administer the proposed rule? We believe, based on evidence already available, that the answer is no. Section C makes it clear that the FAA does not really know how many commercial balloon pilots will be affected by this ruling. The FAA states that it used a commercial website that offers balloonist the opportunity to add their name to a list of pilots that provide commercial balloon rides, as a basis to establish the impact of the medical requirement, but this list is not complete, nor does it contain a list of all commercial balloon pilots conducting all manner of commercial operations other than ride operations. The number as researched by BFA and presented to our FAA representative prior to 2018 numbers over 3000. This information is not contained in this section of the NPRM, nor are conversations with BFA, as the provider of the information, mentioned.
Under section D, the issue of medical flight tests and the allowance of a medical flight test to be administered to a person not holding a medical certificate, is likely going to be required in the case of so many new pilots that may require a second class medical. The majority of balloon pilots have never been faced with the requirement to hold a medical unless it was required by the company they are employed by as a pilot. This could mean that for many pilots, the process of obtaining a medical through the “special issuance” or “medical flight test”, may be required. The BFA supports this proposed rule amendment.
In section E, the FAA proposes to implement an effective date 180 days from publication of the final rule. This time will be completely insufficient to accommodate the much larger number of pilots than the FAA anticipates applying for a medical under the present proposed rulemaking. In addition to possibly 3000 plus pilots needing to obtain a medical, the FAA must realize the following:
- The majority of balloon pilots have never been familiar with the requirements of obtaining an FAA medical, thus they will not be in the same category as the airplane pilot, who knows from day one that there are certain medical requirements to be met and that there may be disqualifying conditions which would not allow them to pursue a career in aviation. Many of the conditions that may have disqualified a pilot medical applicant 10 or 15 years ago, may now allow a pilot to be issued a medical. Items such as diabetes, heart bypass, sleep apnea, have seen significant advances in aviation medicine and most will now be able to qualify for a second class medical. However, balloonists faced with the daunting fear of the process of obtaining a special issuance, may simply choose to walk away from their flying.
- Senior pilots, dominant in ballooning at present, are at an age where they may well have one or more of these and other conditions and will require extra time to work through the maze of possible testing required for a special issuance.
- The process of obtaining is special issuance, historically is burdensome and it can take months and, in some cases, years to overcome the obstacles to obtain the medical. There are many, many cases that have cost the medical applicant not hundreds, but thousands of dollars over more than a year, to attempt to appease the FAA’s medical branch. Often test after test are being required, some at great expense, only to find that more testing and, in some cases, excessive testing is ordered for the special issuance. On our own board, there is one director that has spent in excess of $5000 this year in an attempt to obtain a medical. We don’t deny that an individual’s conditions may warrant additional testing, but the process, from those whom we have consulted, seems endless and costly. With as many as 3000 potential medical applicants, we would expect to see as many as 10% that will need special assistance in obtaining a medical through what could be a long and costly process while they continue to try to make a living doing what they have done for years without incident.
The BFA is recommending a minimum of a one year to implement an effective date after final rule publication. We have studied at least one other rule change that affected an entire fleet of operators through implementation of a new, specialized training program, and one year was barely enough for implementation and that pertained to a fleet of only 350 aircraft and their pilots. During an online presentation late in December, FAA experts said that even after the comment period, there could be as much as a year before the rule is implemented. This and 180 additional days following implementation they felt would be adequate. We do not agree. With the possibility of 10% of impacted balloon pilots requiring more than a normal visit with their AME, we urge a 1-year period from date of implementation be adopted.
Section D of the NPRM discusses FAA oversight. It is true that there is no history of medically related accidents in balloons. With only 54 accidents in 10 years and only 4 fatal accidents, there is no statistical justification for the rulemaking.
Section E and F once again relates to the July 30, 2016 accident that is the basis for this politically charged rulemaking. The final report brings several facts together, most of which are inconsistent with the results of the rulemaking effort. The pilot in this case study of the 5 hazardous attitudes, exhibited in particular, “anti-authority”. His history of drug and alcohol abuse during his time as a balloon pilot, was verified and witnessed by many. He was reported to the FAA twice, once after it became known that he had likely lied about his DWI history on his medical application, when obtaining his FAA medical. In both cases, he was not challenged in a manner that might have ultimately taken him out of the air and prevented the deadly accident!. In the last case, he was told that the next time he applied for a medical, that he should answer the question about DWI truthfully. Today, the FAAs knowledge of an incomplete or untruthful answer on the medical application would result in a pilot certificate revocation action. The BFA is aware of at least two such actions within the last two years.
In the NTSB final report on this accident, it stated; “Contributing to the accident were (1) the pilot’s impairing medical conditions and medications and (2) the Federal Aviation Administration’s policy to not require a medical certificate for commercial balloon pilots.”
Yet in the investigation conclusions, it states that; “The pilot was not under the influence of alcohol or illicit drugs at the time of the accident, and his high blood pressure, high cholesterol, diabetes, chronic back pain, and fibromyalgia did not affect his performance. Further, although he was taking other drugs that may have been impairing, the prescribed medications that the pilot used to treat his high blood pressure, high cholesterol, diabetes, and depression did not affect his performance.”
Which is it? This report was focused on the lack of a medical certificate for commercial balloon pilots from its beginning, but was also stated clearly in the NTSB recommendations, to; “Remove the medical certification exemption in 14 Code of Federal Regulations 61.23(b) for pilots who are exercising their privileges as commercial balloon pilots and are receiving compensation for transporting passengers.”
Finally, Section B of this NRPM asks for comments on a possible requirement in the future of additional FAA oversite of ballooning operations based on the issuance of a Letter of Authorization (LOA) and the possible requirement for random drug testing. Specifically, we answer each of the three points contained herein:
1. The identification of a place of business would be difficult for most pilots conducting paid rides. These pilots, whether individually, or conducting these rides under a business name, would only be able to provide a home address or possibly a business address if it exists. This does not adequately cover where the business of rides might be conducted for the purposes of surveillance by the FAA. Balloons may be flown from literally anywhere and the operational area could be anywhere on any specific flight day based on winds and weather, so surveillance would be next to impossible for the local FSDO to conduct without obtaining prior knowledge of every individual flight, which is often determined only minutes before launch. In addition, balloons are maintained in most cases by balloon repair and maintenance facilities already surveilled by FAA for compliance. Trying to tie each balloon with a specific maintenance operation is unnecessary and burdensome. Some balloons are relocated based on the season and may use more than one shop to perform maintenance, and again tying these operators to the use of one shop, such as is required under FAR 135 is costly and burdensome.
2. The identification of the type aircraft used is not difficult, but individual balloon pilots may have more than a single balloon or balloon envelope that will be used, so on any particular flying day, identifying which balloon might be in the air would require “dispatching” through an FAA source to be consistent with this item. Once again, the FAA doesn’t currently employ enough Air Safety Investigators (ASI) to cover this requirement.
3. While it is possible that a drug test on the recent Albuquerque fatal accident, in which 5 people, including the pilot were killed, might have identified the presence of drugs in the pilot’s system, random drug testing must be conducted through an organization or consortium and adding over 3000 new balloon pilots to that system would tax the ability of any system to function efficiently. While this one Albuquerque accident does represent a risk to paying passengers, it is a singular example only, of an accident investigation that produced illegal substances in the pilot’s toxicology report (as yet not verified formally by a final report issuance from NTSB as this information was improperly released prior to the final NTSB report). Further, the final report for the Lockhart accident stated that it did not find illegal drugs in the pilot’s toxicology report, so a random drug screening, which focuses on illicit or illegal drugs, would not have found these substances, and would likely not have turned up the other medications that he was taking. The question raised in the NPRM, that “other persons involved in the conduct of passenger carrying flights” would infer that all persons handling the balloon, including crew could be subject to drug testing. The suggestion that others involved in the conduct of passenger carrying flight, including crew, be subject to drug testing is unnecessary, costly, burdensome, and would severely restrict who could even crew for a commercial balloon. Since most crew are volunteers, there would be no database available from which to choose random tested crew. This type of requirement would end ballooning businesses and would economically destroy those that have been safely providing balloon rides for many years.
The BFA recommendation for this section would be to take no action on any of the three items. The economic and organizational requirements to conduct such required actions would have the consequences of a marked exodus away from the sport and business of ballooning. Many very successful businesses, including corporate sponsored balloon fleet and special shape companies would eventually cease to exist.
In summary, the Balloon Federation of America believes this proposed rule to be politically charged and ill-conceived by politicians with no first-hand knowledge or understanding of balloon flight operations. The inclusion of “all” commercial pilots is an overreach of NTSB’s clearly targeted recommendation “for pilots who are exercising their privileges as commercial balloon pilots and are receiving compensation for transporting passengers.” Based upon the BFA’s projected number of impacted pilots, the FAA’s ability to implement and administer this rule is entirely questionable, and if enacted, the proposed rule as written has the potential to cause great harm to the sport of ballooning in both commercial and sporting endeavors, while also potentially destroying the livelihoods of pilots and their dependents, who have been and continue to provide safe, competent, and careful balloon ride experiences to the paying public.
While Congress initiated these actions, the FAA is still charged with “encouraging and developing civil aeronautics”. To that end, it is the FAA’s responsibility in rulemaking, to make those rules as they best support aviation and with the least burden to those impacted. We do not feel that the implementation of this new rule, with strict adherence on the words of Congress, is serving the aviation community properly.