Grumet: Grieving families, frustrated congressman wonder why aviation safety rule still isn't in place

We’ve all heard the expression: It would take an act of Congress to accomplish some incredibly difficult task.

Except in this case, Congress has acted. Nearly four years ago. Heck, Democratic Rep. Lloyd Doggett and Republican Sen. Ted Cruz, polar opposites in their politics and temperaments, were on the same page in championing this measure. And we’re talking about a matter of public safety, life and death.

Yet the rule in question — requiring commercial hot air balloon pilots to undergo annual medical screenings, a basic safeguard that might have prevented the 2016 Lockhart balloon crash that killed 16 people — is stuck in a bureaucratic maze.

Congress ordered the Federal Aviation Administration to adopt such a rule by the spring of 2019.

We’re still waiting.

In the federal government, “delay is certainly not unusual. Some degree of (bureaucratic) indifference is certainly not unusual,” said Doggett, who has been a congressman for nearly three decades. “But this goes far and beyond anything I've ever seen in my entire career, in terms of an agency being directed to do something and ignoring the direction.”

“It is words like appalling, outrageous, astounding that have characterized my view about something that has been going on for so long,” Doggett added.

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Perhaps you’re thinking: Hot air balloon regulations are not exactly a front-burner issue for most Americans. The FAA estimates the rule will affect roughly 350 pilots who provide hot air balloon rides to paying customers. (The rule won't affect balloonists who fly for their own enjoyment.)

But we’re also talking about the federal response to the deadliest hot air balloon crash in U.S. history, a wholly avoidable tragedy that devastated families. And we’re talking about Congress plainly directing a federal agency to do a specific thing by a specific deadline in the name of consumer safety … and that thing hasn’t happened.

Action slated for May 2023

As the American-Statesman first reported in the aftermath of the Lockhart crash, the National Transportation Safety Board had tried for years to get the FAA to beef up its regulation of the hot air balloon industry. In 2014, the NTSB had even predicted a “high number of fatalities in a single air tour balloon accident” if the FAA didn’t improve oversight.

That’s exactly what happened July 30, 2016, when a hot air balloon drifted into power lines near Lockhart, triggering a fiery crash that killed all 16 people on board. Compounding the cruelty of the tragedy, many of the passengers had taken the balloon ride to celebrate milestones: Birthdays. Anniversaries.

Federal investigators concluded the pilot, Alfred “Skip” Nichols, had medical ailments and medications in his system that likely impaired his judgment and should have prevented him from flying. (Equally alarming, Nichols had a valid pilot’s license even though a string of drunken driving convictions made him ineligible for a driver’s license.)

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Pilots who give helicopter tours or provide flights to skydivers must undergo an annual medical exam to ensure they’re fit for flight. But there’s no such requirement for hot air balloon pilots who take paying customers into the air. Had he been required to obtain that kind of medical certification, Nichols likely would have been grounded.

The Commercial Balloon Pilot Safety Act, enacted in October 2018 as part of a larger bill on the FAA, said commercial hot air balloon pilots shall be required to obtain the same second-class medical certification as those other kinds of pilots. And it gave the FAA six months to revise its rules accordingly.

But it wasn’t until November 2021 — more than three years later — that the FAA finally posted the proposed rule in the Federal Register, launching a 60-day period for public comment. The comment period closed Jan. 18.

An FAA spokesperson told me the agency is sifting through nearly 200 public comments and revising the proposed rule “as appropriate.”

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The agency expects to post the final rule in May 2023 — nearly seven years after the deadly balloon crash that prompted the rule, and more than four years after the deadline Congress set for action. Doggett said the delay “is beyond outrageous.”

In the meantime, the FAA has touted its work with the Balloon Federation of America on a voluntary accreditation program. Voluntary is the operative word. Such a program doesn’t reach the pilots who aren’t interested or those (like Nichols) who aren’t part of the organization.

‘This could happen again’

When I pressed the FAA about its delays implementing this congressionally mandated rule, the agency argued the process simply takes time. And in fairness, the COVID-19 pandemic slowed everything down.

“The law Congress enacted did not relieve the FAA of the requirements of the Administrative Procedures Act,” the FAA spokesperson said. “We are following the federal rulemaking process, which requires public participation.”

Indeed, some balloonists have been critical of the proposed rule, arguing it creates more work for pilots without truly improving safety. They point to another hot air balloon disaster — a June 2021 crash that killed a pilot and four passengers in Albuquerque, NM — and note that pilot actually had medical certification. A toxicology report indicates he also had illegal drugs in his system, although investigators are still determining the cause of the Albuquerque crash.

Of course, no single rule will prevent every disaster. But the federal investigators of the Lockhart crash said the failure to require medical certification for balloon pilots then was a “contributing factor."

Patricia Morgan is infuriated by the FAA’s delays. She lost two loved ones in the Lockhart crash: her daughter, Lorilee Brabson, and her granddaughter, Paige Brabson. The balloon ride was a Mother’s Day present from Paige to Lorilee.

Through photos and videos posted on social media, Morgan could see how delighted they were on the balloon ride. “They loved it,” she said wistfully. “My daughter had it on her bucket list.”

Whether the balloon pilot had any kind of medical certification probably never crossed their minds, Morgan said. They likely figured they were in safe hands, that the pilot must have all the approvals one would need to fly.

That’s what makes the FAA’s delays so frustrating, Morgan said. The agency knows better standards are needed. Congress has told the FAA to impose them. And yet people are still getting on hot air balloon rides without the benefit of this safeguard.

“This could happen to anybody again,” Morgan said. “It will happen again.”

UPDATE: After this column first posted, I heard from Eliav Cohen, head of the American Ballooning Safety and Training Association. He says aviation insurance companies now require commercial hot air balloon pilots to have the same second-class medical certification that the FAA is planning to mandate. It's encouraging to see the private sector step up to insist on better safety regulations. It shouldn't be so hard — or time-consuming — for the FAA to do the same.

Grumet is the Statesman’s Metro columnist. Her column, ATX in Context, contains her opinions. Share yours via email at bgrumet@statesman.com or via Twitter at @bgrumet. Find her previous work at statesman.com/news/columns.

This article originally appeared on Austin American-Statesman: Opinion: Years after deadliest balloon crash, FAA rule still not ready