REALLY? Redux — what are the hidden steps that slow rules down

REALLY regulatory machine
Share this article: FacebooktwitterlinkedinFacebooktwitterlinkedin

ARTICLE: FAA To Reopen Fatigue Rules For Cargo Pilots

Redux of 2012 Post explaining mystery of regulatory process

What public doesn’t see or imagine is time in Internal Review above FAA

Considerable standards from Congress and OMB

A appeals case exposed the involvement of DOT, OMB and other players

In a US Court of Appeals case initiated by the UPS pilots union, a Department of Justice motion stated

“These errors are of sufficient amount that the FAA believes that it is prudent to review the portion of its cost-benefit analysis related to all-cargo operations and allow interested parties an opportunity to comment on that analysis.”


This was one of the most contested, closely scrutinized rulemaking in recent history. It had substantial pre NPRM input, an incredibly full docket replete with comments from unions, associations, scholars, experts, individual pilots, etc., a lengthy period for submission of those comments and intense Congressional interest (see Science Brings more Insights to the Debate on Flight & Duty Time Regulations; Is it time to rethink the start and stop of “flight and duty” time?). The FAA Administrator at the beginning of this period, who recused himself from the proceedings, was a past President of one of the unions. Once the record was closed, the FAA staff and lawyers carefully reviewed all of that information, revised the proposed rules and devoted substantial time and effort to preparing its rational.


One of the quintessential elements of any final rule is the agency’s Cost/Benefit analysis. The numbers found in this lengthy section of the pages of the Federal Register include the economic analyses prepared by the FAA resident policy group as modified by the NPRM comments submitted by all parties. A review of the comments demonstrates that all parties submitted their own C/B assessments, then commented on the numbers/analyses of the other submissions and probably replied to the criticisms of their objections. The issue was well joined in this process.

The FAA does not have the authority to write a final rule and publish it in the Federal Register; it is compelled to review its final draft first with the Office of the Secretary of the Department of Transportation. That “parent” organization has its own lawyers, economists and policy experts. By definition, the DoT is a more politically sensitive organization; it is a part of the Executive Branch and its Secretary a full member of the Obama Administration. With that perspective, one may easily infer that a Democratic, pro labor perspective was part of the DoT assessment of the FAA’s final rule. Any B/C numbers that were suspect were subject to severe scrutiny and criticism. The notion that some incorrect number passed unnoticed through this process stretches the bounds of credulity.NPRM-REVIEW-PROCESS-AND-PLAYERS

But wait, there’s more. The Executive Orders that prescribe the issuance of Final Rules do not permit DoT and/or FAA to send their proposal to the Federal Register for publication. No, their work product is subject to further political scrubbing. The Chief Executive exercises his policy discretion through the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). This “sieve” is a surrogate of the President’s policies and political sensibilities—proof: it is technically part of the White House.

If the OST review uses a microscope in its assessment, OIRA employs an electron microscope to determine its acceptability. Their examination is figuratively and literally molecular in scope. One can be assured that these very able and powerful reviewers questioned every number of the B/C section, compelled detailed justification of every digit, deleted many of the econometric citations and refined all of the data that made the last testament of this NPRM.

Now the US Department of Justice tells a court that it is NOW “prudent” to review the B/C numbers of the final Flight and Duty Time rules; the only response to this statement is è REALLY?



Share this article: FacebooktwitterlinkedinFacebooktwitterlinkedin

Leave a comment