FEtrip7

This just in from a friend:

Last week, IPA representatives met in D.C. with ALPA FedEx representatives. One topic of conversation was the recently filed lawsuit by IPA against the FAA and now against the Cargo Airlines Association. ALPA does not support the litigation, and has published points (see below) outlining their position.

We agree with some, and respectfully disagree with other points made in the communication. I thought it would be helpful for IPA members to have the benefit of an IPA point-by-point response to these topics. Here it is:

ALPA Question: Is filing a lawsuit challenging the FAA's exclusion of cargo carriers from Part 117 which establishes duty limits and rest requirements for flight crewmembers prudent at this time? Has recent information changed your opinion that the legislative route provides the highest likelihood of success?

ALPA Answer: We do not recommend filing such a lawsuit at this time. In addition to what was previously sent, the below are some of the reasons and information:

Applying the standards of review to the facts of this case, the likelihood of success is not strong.

IPA Response: It is true that a Court of Appeals review of an agency action is always an uphill challenge, given the deferential standard of review afforded the agency. The Court will not substitute its safety judgment for that of the FAA.

However, the DC Circuit is particularly known for requiring agencies to follow proper procedures and not permitting agencies to issue final regulations without allowing interested parties a genuine opportunity to comment on decisive factors and information (such as the cost-benefit “analysis” regarding applicability of the final rule to cargo carriers that FAA alludes to, but still has not revealed, and certainly did not provide prior to issuance of the Final Rule.) Despite the deferential standard of review, the DC Circuit has overturned agency decisions and regulations, including FAA actions.

Moreover, there are other anomalies in the FAA decision-making, such as the agency’s never retracted position in the NPRM that the factors that induce and exacerbate fatigue in flightcrews are the same, regardless of whether the operation involves the carriage of passengers or cargo. These substantive findings by FAA were not addressed by the Final Rule.

Based on the flaws in FAA’s analysis and prior decisions of the Court of Appeals, the challenges to the Final Rule’s cargo carve-out are meritorious claims that are similar to claims the Court has accepted in similar past cases. While there is certainly no guarantee of success, the arguments we will raise in the litigation are substantial and have a strong basis in the facts and in the law.

If the litigation is not successful, it will make the efforts to obtain compliance by legislation or voluntary compliance more difficult because the judicial branch of government will have affirmed that the FAA's exclusion of cargo carriers was appropriate.


IPA Response: We strongly disagree. Even if IPA does not win the lawsuit, the Court’s decision would be limited to a finding that the FAA’s process and decision was not legally deficient. The Court would not be endorsing the policy determination made by FAA to exclude cargo operations from the rule.

The legislative effort would not be impeded by challenging the rule any more than it would be by not challenging the rule. Often, Congress expects parties to pursue other means of obtaining relief before asking Congress to implement a legislative solution. With respect to the age 60 issue, Congress was willing to step in but only after it became obvious that the courts were unwilling to reverse the FAA.

As to “voluntary compliance,” the factors that may lead a cargo carrier to voluntarily comply with the rule have nothing to do with whether the rule was unchallenged or sustained upon challenge.

If successful, the court is unlikely to order cargo carriers to be included under the new FT/DT rule. The matter will, in our opinion, be sent back to the FAA. The FAA is likely to restart the rulemaking process and allow notice and comment.

IPA Response: This is correct. We believe that the “cost/benefit” rational that excluded cargo operations from the rule is fundamentally flawed. The industry inflated perceived “costs” of applying the rule to cargo, and, at the same time, minimized “benefits” of applying one level of safety to all airline operations. Any court ordered FAA reconsideration; we believe, will only improve the rule, not delay or weaken it.

If the court sends the matter back to the FAA, the FAA will most likely publish a supplemental NPRM which may take the position that it is excluding cargo carriers and ask for comments.

IPA Response: That is true as a matter of procedure, but understates the impact of a Court decision striking down the cargo carve-out. In articulating the reasons why FAA erred in adopting the cargo carve-out, the Court’s decision will make it more difficult for the FAA to justify a carve-out on remand. While the FAA would technically have the discretion to retain the carve-out, it would have to justify it and provide an opportunity for meaningful analysis and comment by interested parties.

Thus, for instance, on remand, IPA and others would have the opportunity to analyze and comment on the cost benefit analysis FAA produces to justify its proposed approach. In the recent rulemaking process pilot unions did not even see the cost/benefit analysis that was the deciding factor in FAA’s decision to carve out cargo operations from the scope of the Final Rule.

Moreover, we know there are officials within FAA who believe that cargo operations should be covered by the rule—as evidenced by the NPRM’s inclusion of cargo operations, and the fact that FAA made significant changes to the final rule to reduce the impacts on cargo operations (e.g. reducing the minimum rest requirements for “split duty” shifts, which do not apply to passenger operations). On remand, a favorable Court decision would strengthen the position of those FAA officials to argue in favor of eliminating the carve-out.

It is premature to assume that FAA would seek to exclude cargo operations, particularly after having been reversed by the Court. .

Since there will be no statutory deadline (because this would be a court mandated action) a new rulemaking process could result in no rule -- just as has happened in the past.

IPA Response: That is true. It’s also possible that pursuing the “legislative route” could produce the very same result. Pilot unions do not control Congress. Congress could just as easily decide to throw the issue back to the FAA as could the courts. The best way to protect the status quo is to do nothing. Unfortunately, the status quo leaves cargo pilots without the protection of the new rule. Additionally, the status quo, if unchallenged, would set a strong precedent that “one level of safety” does not include cargo operations, and that the lives and families of cargo pilots are of lesser value. IPA is committed to challenging this unacceptable status quo by any and all means possible with or without guarantees of success.

ALPA entering the litigation could cause ATA and others to participate and oppose the entire rule.

IPA Response: If ATA wants to challenge the entire rule, it would have to file its own petition for review. In the current proceeding initiated by IPA, the issues are determined by IPA, and so the cargo carve-out is the only issue in play. ATA did not choose to intervene in the IPA proceeding before the deadline for intervening expired, suggesting that it is not interested in litigating the cargo carve-out. If ATA decides to initiate its own petition for review (for which the deadline has not yet expired) to challenge the entire rule, that decision will be made based on factors relating to the impact of the rule on ATA’s members, not on whether ALPA joins the challenge to the cargo carve-out.

When a matter is in litigation, Congress is extremely reluctant to take legislative action and carriers adopt a wait and see attitude rather than try complying voluntarily. If ALPA files a lawsuit it will interfere with any legislative effort.

IPA Response: Let’s face facts. Winning this fight—from either a court or legislative challenge—is uphill and against the odds. But just because the odds are long, does not, in our opinion, mean that we should not fight and fight by every means at our disposal.

IPA members, joined by our CAPA colleagues, were on Capitol Hill last week meeting with legislative allies kicking off our own legislative campaign seeking to reverse the cargo exclusion. No member of Congress or staffer we met with so much as suggested that the pending lawsuit would make them less likely to support legislation reversing the exclusion. Is it possible that some members will use the lawsuit as an excuse not to support legislation? This could very well happen. However, it is fair to ask whether or not these same legislators would be supporting us in the absence of litigation.

Also, with the power of the cargo lobby arrayed against us, the success of a legislative solution can only come with widespread public knowledge and support of our issue. The lawsuit has garnered significant national press coverage raising public and congressional education on the issue.

Would the cargo carve-out even now be on Congress’ radar in the absence of the intensive press coverage generated by IPA’s lawsuit? This seems doubtful.

As for carrier voluntary compliance, if a cargo carrier were willing to voluntarily comply with the rule, the possibility that it may, at some point, be required to comply with the rule should not logically cause that carrier to delay voluntary compliance.

Litigation may stop the FAA from making some needed technical corrections which FedEx pilots desire.

IPA Response: Technical corrections will not help FedEx pilots unless the rules apply to cargo operations. As of now, the Final Rule does not apply to cargo operations.

The process could take over a year to get a decision. The last challenge to a flight time limitations which was by initiated by ATA, took 18 months and was unsuccessful.


IPA Response: This is true, but litigation at least presents an opportunity to reverse the carve-out in the foreseeable future, while not making the attempt would assure that the carve-out remains in place.

We recommend two courses of action that we believe will more likely produce a desired result without the downsides outlined above. These are legislative and voluntary compliance.

IPA Response: We agree that aggressive action to promote corrective legislation and voluntary compliance are needed. Litigation, however, provides another avenue to improve the duty and rest rules for cargo pilots, while providing important additional leverage that may help on the legislative and negotiating fronts.

Legislative campaign is underway. This has been successful in the past with GPW9 TCAS, and FFDO's.

IPA Response: We agree. As a leader on the TCAS and FFDO issues, we have experienced past successes in working with Congress to correct misguided agency rulings.

DOT is working to get cargo carriers to voluntarily comply.

IPA Response: We agree, and are in contact with Secretary LaHood in support of his efforts to win cargo carrier voluntary compliance.

IPA Summary:

The fight to apply meaningful, science-based duty and rest rules to all airline operations, passenger and cargo, has been uphill from the very beginning. We are in an environment that is generally hostile to regulations in any form. However, having won the very important step of a FAA published final rule, the Agency bowed to the powerful air cargo lobby and exempted cargo operators from new, science-based minimum duty and rest standards.

The segment of the industry most in need of the rules and most capable of absorbing any costs associated with them, used their financial and political might to force through a last minute exemption. Professional pilots have rallied around the slogan “one level of safety” for over a decade. Now, the push is on to see if we really mean it.

We have an integrated air traffic system in this country. Cargo and passenger pilots share the same runways, fly the same congested skies. It should be unacceptable to all pilots, passenger and cargo, that one group be excluded from rules over four decades in the making.