FAA Issues A Notice on Cargo Flight and Duty Time; the Union Appeals Immediately, Prematurely?

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ARTICLE: FAA Rejects Request From Cargo Pilots for Greater Rest

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NO REST, THE BATTLE RESUMES!!!!

Flight and duty time, the FAA regulation which most directly impacts a key labor issue (hours of work; work rules), is among the most, if not THE most, contentious Federal Aviation Regulation. After much study and controversy, the FAA issued, on January 4, 2012, a new regulation which limited the hours of duty and flight time of passenger flights only. The critical action of the agency was its Regulatory Impact Analysis, which was made public on December 21, 2011; it found that it would be unjustified to compel the all-cargo operators to comply with the same requirements.

Thus began an incredibly quarrelsome regulatory and litigation battle. Last spring, the FAA (with help?) decided to withdraw the politically charged benefit/cost analysis of the rule as applied to UPS, FedEx, etc.

The FAA issued a new, revised final analysis of the benefit/cost ratio in a Federal Register notice published today! With lightning speed, the Independent Pilots Association has already filed a lawsuit (Independent Pilots Association v. Federal Aviation Administration, 11-1483, U.S. Court of Appeals for the District of Columbia) appealing the FAA final action. The issue is the FAA’s cost of extending the new flight and duty time rules to cargo pilots. Ironically, the second iteration calculation, done by an independent agency, found that the rule’s application to the carriers at issue would have greater negative consequences than the earlier assessment.

The IPA lawsuit expands the issue beyond the standard rulemaking evaluation required by OMB and a variety of laws enacted on the subject. The union now asserts that the parameters of FAA review no longer include the RIA because Congress, in Section 212 of PL 111-216, obviated the need for analysis of the economic factors. The FAA’s statement in the FR Notice demurs and asserts that Congress did not remove the benefit/cost analysis. The Congressional list of factors, in the FAA’s opinion, was not meant to be to the exclusion of the RIA tests.

The Court of Appeals may bounce the issue back to the NPRM process since the FAA notice asked for comments from the public. The IPA Appeal may have been premature.

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