C H A M B E R O F C O M M E R C E O F T H E U N I T E D S T A T E S O F A M E R I C A 1 6 1 5 H S T R E E T, N. W. W A S H I N G T O N, D. C. 2 0 0 6 2 2 0 2 / 4 6 3-5 5 2 2 2 0 2 / 4 6 3-5 9 0 1 F A X R A N D E L K. J O H N S O N S E N I O R V I C E P R E S I D E N T L A B O R, I M M I G R A T I O N & E M P L O Y E E B E N E F I T S M I C H A E L J. E A S T M A N E X E C U T I V E D I R E C T O R L A B O R L A W P O L I C Y Federal Aviation Administration Office of Rulemaking, ARM-1 800 Independence Avenue, SW Washington, DC 20591 RE: Docket No. FAA 2009 1093; Notice 10 11; RIN 2120 AJ58; Flightcrew Member Duty and Rest Requirements; Proposed Rule To Whom It May Concern: We are pleased to submit these comments on behalf of the U.S. Chamber of Commerce (Chamber) in response to the proposed rule (NPRM or proposal) related to flightcrew member duty and rest requirements that was published in the Federal Register on September 14, 2010. 1 The Chamber is the world s largest business federation, representing the interests of more than three million businesses and organizations of every size, sector, and region. The Chamber s membership includes many businesses in the air transportation industry, including those providing scheduled passenger service, scheduled freight service, and nonscheduled service. The Chamber s membership also includes trade associations broadly representing particular sectors of the air transportation industry. The FAA s proposed rule would have a significant impact on these members should it be finalized. These comments do not offer a comprehensive response to the NPRM. 2 Instead they focus on a single issue: the failure of the FAA to consider appropriate alternatives that recognize the many different types of operations in the air transport industry. One Size Does Not Fit All In rulemaking, not only does one size not fit all, but it s unsafe to think that it can. 3 1 Flightcrew Member Duty and Rest Requirements; Proposed Rule, 75 Fed. Reg. 55,825 (Sept. 14, 2010). 2 It is our understanding that comprehensive comments addressing the concerns of various sectors of the air transport industry will be filed by Air Transport Association of America, The Cargo Airline Association, and the National Air Carrier Association, among others. 3 FAA Administrator J. Randolph Babbit, We Can t Regulate Professionalism, Speech to ALPA Air Safety Forum, August 5, 2009, available at: http://www.faa.gov/news/speeches/news_story.cfm?newsid=10680.
P a g e 2 We agree with the sentiments of FAA Administrator Babbit, who uttered these words with respect to this very rulemaking. However, as stated in the NPRM this rulemaking proposes to establish one set of flight time limitations, duty period limits, and rest limitations for pilots 4 In other words, the proposal is a one-size-fits-all approach. Notably, the proposal does not, in any way, take into account the rather significant differences among the various operations in the air transportation industry. As the FAA is well aware, over time and with FAA approval, air transportation companies have developed different strategies to address pilot fatigue consistent with their respective business models. The various strategies vary depending on whether the operations in question are, for example, passenger or cargo, short-haul or longhaul, scheduled or unscheduled. As an example, consider an all-cargo carrier that operates globally, including to remote and conflict areas. Pre-positioning of crews in such locations is simply not possible and quick turnaround is often a necessity. Similarly, the schedules for such operations are typically unpredictable and driven by customer demands. Such a model differs rather significantly from that utilized by large passenger carriers. The Chamber certainly supports continued efforts to improve safety and address issues related to fatigue. However, we are perplexed by the FAA s decision to ignore these important differences. For the FAA to justify such a departure, we would expect a comprehensive explanation for its approach. However, the FAA has chosen to ignore these differences in its proposal without significant discussion. Indeed, the explanation in the NPRM of these issues is limited to the following: The FAA recognizes that there are different business models and needs that are partly responsible for the differences in the current regulations. It is sympathetic to the concerns raised within the ARC by cargo carriers and carriers engaged in supplemental operations that new regulations will disproportionately impact their business models. However, the FAA also notes that the historical distinction between the types of operators has become blurred. Cargo carriers conduct the vast majority of their operations at night, but passenger carriers also offer red eyes on a daily basis. Today s proposal is designed to recognize the growing similarities between the kinds of operations and the universality of factors that lead to fatigue in most individuals. 5 In other words, the FAA has dismissed the important differences in business models and practices among sectors of the air transport industry with little more justification than the observation that both passenger and cargo carriers fly at night. It very well may be true that there are similarities among all participants in the air transport business. However, very significant differences demand consideration of alternative models. The only other comment in the NPRM related to the FAA s failure to consider alternative approaches is the comment that the FAA has decided against proposing special rules for all- 4 75 Fed. Reg. 55,852. 5 75 Fed. Reg. at 55,857.
P a g e 3 cargo operations because there are no physiological differences between pilots who fly cargo planes and pilots who fly passenger planes. 6 However, this assertion misses the point. There may be a universality of factors that lead to fatigue in most individuals, but this does not mean that there is only one way to address the issue. Indeed, given the significant differences among operations it is not surprising that different means of addressing crew fatigue and safety have been developed, with FAA approval, with the understanding that physiological needs for rest can be met in different ways. The Chamber was not involved in the Flight and Duty Time Limitations and Rest Requirements Aviation Rulemaking Committee (ARC) deliberations that occurred in 2009. However, it is our understanding that the ARC process gave inadequate consideration to alternatives proposed by both the Cargo Airline Association and the National Air Carrier Association. It is true that both of these organizations were permitted to attach separate proposals to the ARC s nonconsensus recommendations. However, it does not appear from our review of the record that these alternatives have been addressed on a substantive basis at all in the NPRM. APA Implications As the FAA may know, section 706(2)(A) of the APA provides that agency rules that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law must be set aside. Under this section of the APA, Courts have regularly held that an agency may not take regulatory action without considering an important aspect of the problem or without consideration of alternative approaches. Nor may an agency reverse precedent without an appropriate explanation. In the landmark State Farm case, 7 the Supreme Court held that agency rule would be arbitrary and capricious if the agency: Relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. (emphasis added). 8 The FAA s proposal is not the product of reasoned decision-making as it has entirely failed to consider an important aspect of the problem, namely the vast differences among operations in the air transportation sector. The FAA s failure to properly explain this decision also renders the proposal arbitrary and capricious. The FAA s actions here are not unlike the State Farm case where the agency failed to consider proper alternatives. Likewise, it is also similar to the agency action in International Ladies Garment Workers Union v. Donovan. 9 In Donovan, the D.C. Circuit was faced with a 6 75 Fed. Reg. at 75,863. 7 Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983). 8 Id. at 43. 9 722 F.2d 795 (D.C. Cir. 1983).
P a g e 4 Labor Department rescission of a long-standing rule. In analyzing the Labor Department s proposal, the D.C. Circuit noted that during the rulemaking process, substantial input had been provided to the agency demonstrating a disproportionate impact of the rule in one area. It also observed that alternative proposals had been submitted to the agency to accommodate this impact. In invalidating the Labor Department s rule, the D.C. Circuit noted that: In addition to requiring rational consideration of alternatives, the APA demands an adequate explanation when these alternatives are rejected. Hence, we vacated a decision by the Civil Aeronautics Board to rescind certain restrictions on smoking in airplanes because the Board had failed adequately to address alternatives proposed in the comments. We indicated that while an agency need not respond to every comment, it must respond in a reasoned manner to explain how the agency resolved any significant problems raised by the comments, and to show how that resolution led the agency to the ultimate rule. The Board s claim that it had in fact considered the alternatives, and its attempt to rely on generalized and conclusory policy considerations as grounds for rejecting them, were inadequate 10 The D.C. Circuit concluded that the Department was required to address common and known or otherwise reasonable options, and to explain any decision to reject such options. [The agency s] complete failure to satisfy these quintessential aspects of reasoned decisionmaking is the primary basis for our decision to reject the rule. 11 Like the Donovan case, here the FAA has both ignored a key element of the problem, failed to consider known alternatives addressing the problem, and has failed to offer any real explanation of why the alternatives were rejected. The FAA must return to the drawing board and consider these alternatives if it is to move forward with this rulemaking. Regulatory Flexibility Act We appreciate the fact that the FAA conducted an initial regulatory flexibility analysis in conjunction with the NPRM. Nevertheless, we note some significant problems with the analysis and we urge the FAA to again revisit these issues should it move forward with the proposal. Reasons the Rule is Proposed As an initial matter, the RFA discussion asserts that the objective of the proposed rule is to increase the margin of safety for passengers travelling on U.S. part 121 air carrier flights. 12 This is a critically important objective, and one that the Chamber supports. However, passenger safety does not seem to be a relevant objective for flights with no passengers. If passenger safety is the objective of the rule, how does the FAA justify application of the rule to all-cargo operations? 10 Id. at 817-18 (citations omitted). 11 Id. at 818. 12 75 Fed. Reg. at 55,881.
P a g e 5 This comment is telling. We assume that the FAA s true objectives in promulgating the rule include passenger safety, but are, in fact, broader. However, it appears that the agency has issued its proposal without considering application of the rule to all stakeholders. This comment is perhaps a simple misstatement, but in our view it is further evidence that the proposal was not drafted with all segments of the air transportation industry in mind. Disproportionality Analysis In its disproportionality analysis, the FAA acknowledges that the proposal would be more difficult to accommodate for operations with small pilot staffs 13 and that to comply with the proposal an airline would need to hire and train an additional pilot or reduce the number of operations. 14 The FAA uses these points to observe that the proposal will have a disproportionate economic effect on small entities. 15 While true, these points warrant greater discussion as the impact will not only be felt on small entities, but also on communities served by them. First, it should be noted that there is not an infinite supply of qualified pilots. Nor can an increased demand for qualified pilots be easily and quickly met. From discussions with our members in the air transportation industry, it appears clear that these rules will require air carriers of all sizes to hire additional pilots. While this will be a challenge for all carriers, it will be easier for some than for others. Larger carriers with greater resources may find it easier to meet this challenge and may draw pilots away from less lucrative careers with smaller carriers. What this means is that even before assessing the increased staffing burdens the new proposal may place on small carriers, it is important to note that they will be struggling simply to maintain the same number of qualified pilots as many pilots move to more lucrative positions with other carriers. Smaller carriers, both on the passenger and on the cargo side of the business, will grapple with the difficult decision over which markets can bear increased costs and which operations should be shut down. Consider the impact that such a decision could have on a small manufacturer of auto parts in a relatively remote location. For this manufacturer, the timely delivery of product to automobile manufacturers, who may utilize just in time delivery to minimize inventory and manage costs, is critical. Too, it may have just in time delivery arrangements with its own suppliers, who could be located virtually anywhere around the world. Increased globalization and decreased costs for moving goods may have contributed to the development and growth of this business. But if it is in a relatively remote location and the small air carrier servicing its area decides it is now not cost effective for it to maintain this route, the small manufacturer will suffer serious consequences. It may be that alternatives can be arranged at greater cost (with 13 75 Fed. Reg. at 55,881. 14 Id. 15 75 Fed. Reg. at 55,882.
P a g e 6 the increased risk that competitors will be able to operate at less cost, threatening future business), or the lack of alternatives may deal a crippling blow to the business. We recognize that the Regulatory Flexibility Act only requires an analysis of those small entities directly impacted by the regulation. Nevertheless, an analysis of costs on small entities indirectly impacted is encouraged by the Small Business Administration s Office of Advocacy. 16 Executive Order 12,866 also requires examination of countervailing risks. 17 The bottom line is that development of sound public policy requires a consideration of these factors and the FAA should conduct such an analysis before it proceeds further. Alternatives Considered As with the APA, the RFA requires consideration of alternatives. The Small Business Administration s Office of Advocacy summarizes this requirement as establishing a process for the agency to evaluate proposals that achieve the regulatory goals efficiently and effectively without unduly burdening small entities, erecting barriers to competition, or stifling innovation. 18 Importantly, the RFA requires the agency to undertake an analysis in order to discover the least costly method of attaining the statutory objectives of the rulemaking agency. 19 As with the APA discussion above, the FAA failed to consider meaningful alternatives in its initial regulatory flexibility analysis. The analysis cites to three alternatives that it allegedly considered: 1) the status quo, 2) extended compliance time, and 3) one alternative to actually impose greater burdens on small entities. 20 It then, in a conclusory fashion states that The FAA has tentatively determined that there are no reasonable alternatives to this rulemaking that would lessen the potential impact on a substantial number of small entities. 21 In other words, even though the FAA concludes that the proposed rule is likely to have a disproportionate economic impact on small entities 22 it did not seriously consider any alternatives that would mitigate the impact on small entities. The purposes of the RFA are defeated without a good faith consideration of alternatives. Rather than attempt to discover the least costly method of attaining the objective, the FAA appears to have gone through the motions without any real commitment to examining whether other methods of addressing fatigue might be superior. A good start would have been considering proposals made to the 16 SBA Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act at 69-70, available at: http://www.sba.gov/advo/laws/rfaguide.pdf. 17 See OMB Circular A-4 at 26, available at: http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf. 18 SBA Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act at 35. 19 Id. 20 75 Fed. Reg. at 55,882. 21 75 Fed. Reg. at 55,882. 22 75 Fed. Reg. at 55,882.
P a g e 7 ARC by the Cargo Airline Association and the National Air Carrier Association, associations representing a significant number of small entities regulated by the regulations in question. However, these proposals receive no attention in the IRFA. Conclusion The Chamber strongly urges the FAA to return to the drawing board and re-evaluate the proposal in light of the very different business models utilized in the air transportation industry today. The FAA s failure to account for different methods to address fatigue and its proposal of a one-size-fits-all approach do not comport with the requirements of the Administrative Procedure Act or the Regulatory Flexibility Act. Moreover, it is simply bad public policy not to fully consider these alternatives. Thank you for your consideration of these comments. Please do not hesitate to contact us if the U.S. Chamber of Commerce may be of assistance as your proceed to consider this important matter. Sincerely, Randel K. Johnson Senior Vice President Labor, Immigration & Employee Benefits Michael J. Eastman Executive Director Labor Law Policy