End of Year Potpourri

by | Dec 10, 2015 | Drone Traffic, Legal, Taxes

On March 7, 2016, the United States Court of Appeals for the District of Columbia heard oral argument on a petition for review filed by the Independent Pilot’s Association (hereinafter “IPA”) against the FAA in the case styled: Independent Pilots’ Association v. Federal Aviation Administration, United States Court of Appeals, District of Columbia, Case Nos. 11-1483, 15-1027 (“the IPA Challenge”). The IPA represents more than 2,500 professional pilots who fly in the service of United Parcel Service. The IPA is an unincorporated association operating under §501(c)(5) of the Internal Revenue Code. The IPA Challenge is an outgrowth of inconsistent behavior by the FAA in response to a directive from Congress in the Airline Safety and Federal Aviation Administration Extension Act of 2010, Pub. L. No. 111-216 §212, 124 stat 2348, 2362 (2010) (hereinafter the “Safety Act”). In Section 2010 of the Safety Act, the FAA was directed by Congress to promulgate new flight and duty time rules “based on the best available scientific information…to address problems relating to pilot fatigue.” Id., §212(a)(1). The FAA ignored the Congressional mandate, promulgated new rules in the form of Part 117 of the Federal Aviation Regulations, but left cargo pilots subject to the old provisions of Part 121 based upon a supposed “cost versus benefit analysis.” Accordingly, the UPS pilots by and through IPA have maintained that the FAA failed to consider the best scientific evidence as required by §212 of the Safety Act and has argued that the FAA argued in an arbitrary and capricious manner by ignoring scientific data on fatigue, sleep and circadian rhythm research. This article will review the history and circumstances surrounding the case brought by IPA before the United States Court of Appeals for the District of Columbia.



Historically, flight time and duty rules did not distinguish between cargo and passenger operations, but did provide different rules for domestic, flag and supplemental carriers. The amount of rest for flag and supplemental carriers varied depending upon the size of the flight crews and other facts; and the FAA has acknowledged that the rules are “overly complicated.” 75 Fed. Reg. 55852 at 55855 (FAA Dckt. No. FAA-2009-1093-0001 (NPRM). In 1972, the NTSB recommended that the FAA adopt new rules to address the problem of pilot fatigue; and pilot fatigue was on the NTSB’s list of Most Wanted Transportation Safety Improvement for many years. Id.

The current rulemaking effort began in June 2009 when the FAA created the “Flight and Duty Time Limitations and Rest Requirements Aviation Rulemaking Committee” (ARC). The ARC was not able to reach a consensus on a single approach for new rules. Motivated by the 2009 Colgan crash in which 50 people died and in which fatigue was cited as a contributing factor, Congress passed the Safety Act requiring the FAA to adopt new flight crew member duty and rest rules based upon modern scientific knowledge about fatigue. H.R. Rep. No. 11-284 at 7. The Safety Act required the FAA to issue an NPRM within six months and to issue a rule within one year of enactment. Safety Act at §212(a)(3).

On September 14, 2010, the FAA promulgated a Notice of Proposed Rulemaking and declared:

The FAA believes its current regulations do not adequately address the risk of fatigue…as the NTSB repeatedly notes, the FAA’s regulations do not account for the impact of circadian rhythms on alertness, and the entire set for regulations is overly complicated with a different set of regulations for domestic operations, flap operations, and supplemental operators.

NPRM at 55855. The FAA then declared that its new proposal:

Takes a new approach whereby the distinctions between domestic, flag and supplemental operations are eliminated. Rather, all types of operations would take into account the effects of circadian rhythms, inadequate rest opportunities and cumulative fatigue.

Id. at 5584. The FAA further maintained, “There is ample science indicating that performance degrades during windows of circadian low [2 a.m. – 6 a.m. or ‘WOCL’] and that regular sleep is necessary to sustain performance.” Id. at 55858. The FAA further maintained that “reduction in maximum FDP (flight duty periods) during nighttime hours is broadly supported by existing sleep science.” Id. at 55860.

On December 21, 2011, the FAA issued its Final Rule asserting existing rules did not adequately address fatigue and did not account for circadian rhythms, were overly complicated and the agency further stated, “Maintaining the status quo…subjects society to an ‘unacceptably high aviation accident risk.’” Flight Crew Member Duty and Rest Requirements Final Rule, 77 Fed. Reg. 330, 334, 391, FAA Dckt. No. FAA-2009-1093-2517 (Jan. 4, 2012) (the “Final Rule”). In the Final Rule, the FAA observed: “Fatigue is most likely, and, when present, most severe, between the hours of 2:00 A.M. and 6:00 A.M.,” also known as the “Window of Circadian Low.” Id. at 333, 348. The FAA noted aviation work schedule factors that can affect sleep and alertness include “night work through one’s window of circadian low, daytime sleep periods, and day-to-night or night-to-day transitions.” Id. at 333-334. It was further noted that those types of operations “of night time and around-the-world operations are the norm for all-cargo carriers.” Id. at 336. Despite recognizing the universality of issues with flying during the window of circadian low, the FAA promulgated new Part 117 of the Federal Aviation Regulations, but excluded air cargo operators from those provisions “because their compliance costs significantly exceed the quantified societal benefits.” Id. at 332. The cost versus benefit analysis was first disclosed by the FAA in the Final Rule and the regulatory impact analysis was placed in the public docket one day after the final rule was issued. FAA Regulatory Impact Analysis for Flight Crew Member Duty and Rest Requirements Final Rule (Nov. 18, 2011), FAA Dckt. No. FAA-2009-1093-2477 (“Final RIA”).

On October 4, 2012, the FAA issued a draft Supplemental Regulatory Impact Analysis (“SRIA”) presenting a more detailed cost versus benefit analysis; and the IPA responded with comments indicating the benefits of including all cargo operations in the Final Rule outweighed the costs and further maintaining that the FAA was, as a matter of law, precluded from considering a cost versus benefit analysis based upon §212 of the Safety Act.

On December 9, 2014, the FAA published its Final Supplemental Regulatory Impact Analysis (“FSRIA”); but the FAA stood its ground on its earlier decision to exclude all cargo operations from the Final Rule, leaving all cargo operations subject to the old Part 121 Rules. IPA, which had previously filed a Petition for Review on December 22, 2011, from the December 21, 2011, Final Rule then on February 5, 2015, filed a Protective Petition for Review challenging the FAA’s December 9, 2014 decision and seeking to consolidate its Petition for Review filed December 22, 2011, with its Protective Petition for Review filed February 5, 2015. The IPA Challenge seeks to remand to the FAA the new Part 117 Rules and make them applicable to cargo operations in accordance with the Congressional directions set out in §112 of the Safety Act.

In essence, in IPA’s Final Brief, submitted to the DC Circuit of Appeals, it asserted two arguments: (1) the FAA had failed to follow the Congressional mandate of considering the best available scientific information; and (2) the FAA had acted in an arbitrary and capricious manner. With regard to the first argument, IPA noted that historically there has been no distinction the way the FAA regulates cargo pilots from airline pilots, since both groups of pilots are subject to drug and alcohol testing; both groups of pilots must hold an airline transport pilot rating; and both groups of pilots are subject to the health and vision requirements set out in Part 67 of the Federal Aviation Regulations. Accordingly, the FAA’s decision to exempt cargo operations from Part 117 based only a cost versus benefit analysis failed to comply with the requirements of §212 of the Safety Act.

With regard to the second argument, IPA maintained that the actions of the FAA were arbitrary and capricious in violation of 5 U.S.C. §706(2)(a) & (d) because “…the Agency has 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 (the Agency’s Final Rule) is so implausible that it could not be ascribed to difference in view or the product of Agency expertise.” IPA Final Brief citing Advocates for Highway & Auto Safety, 429 Fed. 3d at 1144-45 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).


It appears that the decision of the FAA to exclude air cargo pilots from the provisions of the recently promulgated Part 117 of the Federal Aviation Regulations is a political, not a medical or scientific decision. This conclusion is confirmed by remarks of Dr. James Fraser, Federal Air Surgeon at the Airline Pilots’ Association, International 2014 Air Safety Forum, Panel on Pilot Health (August 7, 2014), where he noted in passing: “…Those in aerospace medicine know that from a human perspective there’s no difference between cargo pilots and those that are flying passengers…it’s an ONB and a political issue in terms of the cost of making those changes for cargo pilots.” Moreover, IPA maintains in its Final Brief as follows:

The FAA does not even attempt to explain this departure from its scientific conclusions in scientific, medical, or safety terms. The FAA apparently recognized that dilemma and attempted to resolve the clear contradiction between its scientific findings and its cost-benefit driven decision by making editorial changes to the RIA and by simply deleting references to the science (italics in original test)”. IPA Final Brief at 25-26.

While the personnel in the FAA responsible for promulgating the Final Rule may have been motivated by political considerations whether than medical concerns, if IPA is successful, one can anticipate a remand of the FAA’s decision to the Agency with direction from the DC Circuit Court of Appeals to comply with §212 of the Safety Act. If the FAA action is the cause of a remand by the DC Circuit, one may anticipate that the flight and duty time limitations applicable to passenger carrying pilots in Part 117 of the Regulations may also become applicable to pilots carrying cargo.