Regulators Rebuff Airlines' Petition to Suspend Enforcement Policy

Air Safety Week, July 16, 2001

Airlines said policy would hurt safety; pilot unions said fatigued aircrews hurt safety

A petition from airlines to hold off on proposed enforcement of a 16-hour duty day was flatly rejected last week by the Federal Aviation Administration (FAA). The airlines asserted that strict enforcement, as announced May 14 by an FAA notice of enforcement policy, would cause a nightmare of flight delays, added costs to the airlines and the flying public, and would compromise safety.

The FAA's top lawyer rebutted each of those arguments. In his July 10 denial of petitions from the Air Transport Association (ATA) and the Regional Airlines Association (RAA), FAA Chief Counsel David Leitch ardently defended the regulatory interpretation issued last November 20 by FAA deputy chief counsel James Whitlow.

Whitlow had said that the regulations, specifically FAR US dollars 121.471, required that pilots in domestic operations must have eight hours rest in every 24-hour period, and that if a pilot could not "look back" and find eight hours rest at the end of the last flight of the day, that flight could not depart (see ASW, Dec. 11, 2000). The airlines claimed this interpretation effectively constituted new rulemaking, as they had always interpreted the rule in terms of forward scheduling, not in terms of delays during the day that might cut into that 8-hour minimum rest (see ASW, June 25).

Indeed, the ATA submitted a lawsuit against the FAA last January, charging that the so-called Whitlow Letter violated the Administrative Procedures Act and therefore should be null and void. The FAA's May 14 action, announcing that enforcement of the Whitlow interpretation would commence this coming November, triggered the industry petition for a stay of that enforcement action until the lawsuit was resolved.

Not convincing

Leitch's response rejected that course and did so bluntly. "Neither of your requests for a stay," Leitch told the ATA and the RAA, "provided more than a conclusionary assertion in support of your views that the (Whitlow) Letter is unlawful or procedurally invalid."

"Such...assertions leave the FAA unable to conclude that you have met the first and most fundamental requirement for receiving a stay - likelihood for success on the merits."

"Were the FAA simply to require rest periods to be scheduled, as ATA and RAA request, the agency would be out of harmony with the statutory mandate to issue rules governing maximum hours or periods of service and would instead regulate only scheduling," Leitch went on to say. "But Congress did not direct the FAA to issue rules governing the maximum scheduled (emphasis in original) hours or periods of service; it was no doubt concerned with actual service."

Leitch's blunt rejection of the airlines' petition met with predictable reactions. The ATA expressed its clear disappointment and saying, basically, a courtroom confrontation is the next step. Pilots unions, on the other hand, hailed the FAA denial of the airlines' request for a stay of policy execution. Bob Ames, vice president of the Allied Pilots Association (ATA), the union of American Airlines [AMR] pilots, applauded the FAA and Administrator Jane Garvey "for standing firm in the face of relentless political pressure."

"Simply put, economics must always take a back seat to safety," Ames said.

Capt. Duane Woerth, president of the Air Line Pilots Association (ALPA), said, "While I am pleased that the FAA stood firm in its interpretation of the longstanding rule limiting pilot work hours to 16 in any 24-hour period, or essentially eight hours away from the plane, the traveling public should understand that in most cases this barely provides a pilot with five or six hours of actual sleep - and that's abominable."

The FAA's rejection of the airlines' petition sets the stage to (1) assess whether the airlines' dire predictions are realized and, (2) provides further grist for continuing controversy over flight time/duty time rules that best balance the needs of economic efficiency and safety.

The airlines had argued in their petition that enforcement of a 16-hour duty day would cause cascading delays and cancellations of flight schedules, to the likely ire of the flying public. Further, that compliance would harm safety and would cost the carriers huge sums of money to hire more pilots. An affidavit submitted as part of the ATA submission by American Airlines was typical of the industry concerns.

Leitch was frank in rejecting these arguments. On the matter of "irreparable economic harm," Leitch dismissed the "generalized assertions" to this effect. "ATA and RAA failed to provide the FAA with documentation of actual flights, crews, circumstances to substantiate this claim of economic harm," he said.

Greater risk at the destination airport

Leitch's rejection of the argument that safety would be harmed basically turned the industry argument on its head. His rejection merits quotation in full:

"ATA and the RAA claim that the rule, as interpreted by the FAA in the November 20, 2000 Letter, threatens aviation safety, and specifically refer to purported collision risks associated with an aircraft that returns to the gate because one or more crewmembers will not be able to get the required rest. While ATA and RAA thus focus on the collision risk at the take-off airport, they ignore the risks of fatigue that are increased when a flight crew does not meet the look-back rest requirements. . . . For example, after a long delay before take-off, crews will be out of their last required rest period longer if they take off, fly the enroute portion of the flight and complete their flight than if they terminate the flight prior to take-off once they realize that cannot get to the destination airport within the requirements of the rest rule. In this circumstance, the dangers of fatigue during taxiing operations will be greater at the destination airport than they would be from having the crew taxi back to the gate at the departure airport.