Two Legal Interpretations Regarding the Age 65 Law Effective 12/13/2007

[Denny of Oakland]

FAA - Information for Operators (InFO)

An InFO contains valuable information for operators that should help them meet certain administrative, regulatory, or operational requirements with relatively low urgency or impact on safety.

Subject: Two Legal Interpretations Regarding the Age 65 Law Effective 12/13/2007

Purpose: This InFO makes known the Federal Aviation Administration’s (FAA) two legal interpretations regarding the Fair Treatment of Experienced Pilots Act: (1) augmented crews and (2) the requirement for over age 60 pilots to be rehired by Title 14 of the Code of Federal Regulations (14 CFR) part 121 air carriers.

Background: (1) The Fair Treatment of Experienced Pilots Act requires international operations with a pilot in command (PIC) over age 60 to have a pilot who has not yet reached age 60 assigned to the flight deck crew.

(2) The Act is non-retroactive in that any person who turned age 60 prior to December 13, 2007 cannot serve as a pilot for a part 121 air carrier unless that person is treated as a new hire pilot. Such person may not receive credit (see discussion below) for prior seniority or longevity for benefits related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier.

Discussion: (1) Under Title 49 of the United States Code (49 U.S.C.), § 44729(c)(1), a pilot who has attained 60 years of age may serve as a PIC for part 121 operations between the United States and another country only if there is another pilot assigned to the flight deck crew who has not yet attained 60 years of age. This section reflects Congress’s intent to follow the recommend International Civil Aviation Organization (ICAO) standard for international operations. When there is an augmented flight deck crew assigned to a flight, that assigned flight deck crew must include one pilot who is licensed, current, qualified, appropriately rated for all phases of flight, and younger than age 60. A pilot younger than age 60 does not have to be on the flight deck when a PIC over age 60 is on the flight deck. However, ICAO and the FAA suggest that a pilot under age 60 be at the controls (a crew duty position) during critical phases of the flight (such as below 10,000 feet). The FAA expects air carriers and PICs to use best scheduling practices and crew management to ensure maximum compliance with this recommendation. Issues such as pilot seniority are not considered valid reasons for noncompliance.

(2) A person who was in the employment of an air carrier when he/she attained 60 years of age before December 13, 2007, but who was not conducting part 121 operations for the carrier as a required flight deck crew member may continue employment with the air carrier. To continue employment as a pilot under 49 U.S.C., § 44729(e)(1)(B), that person must be treated by the carrier as a “newly hired pilot…without credit for prior seniority or longevity for benefits or other terms related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier.” The FAA does not believe it was the intent of Congress to require that the pilot be separated from the air carrier with a formal break in service in order to qualify for coverage of § 44729(e)(1)(B). The decision to “rehire” the pilot or keep the pilot in the airline’s employment is a matter to be decided through the company’s contractual process with its employees. In any case, a person who attained age 60 before December 13, 2007, was not a required flight deck crewmember at the time, and who resumes pilot duties must be treated as a newly hired pilot.

Recommended Action: Directors of Human Relations, directors of personnel, directors of operations, trainers, employee groups and pilots under part 121 should be aware of this interpretation.