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Joint Appendix Vol. 2 CASE NOT YET SCHEDULED FOR ORAL ARGUMENT CASE NO. 11-1483 Consolidated with Case No. 15-1027 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT __________________________________________________ INDEPENDENT PILOTS ASSOCIATION, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent. _________________________________________________ JOINT APPENDIX TO REPLY BRIEF OF PETITIONER INDEPENDENT PILOTS ASSOCIATION VOLUME II of V PAGES 788-1557 _________________________________________________ Review of the FAA Rule, Flightcrew Member Duty and Rest Requirements, Docket No. the FAA-2009-1093; Amdt. Nos. 117-1, 119-16, 121-357 issued on December 21, 2011. _________________________________________________ W. Eric Pilsk William C. Trent, [email protected] General Counsel KAPLAN, KIRSCH & ROCKWELL, LLP INDEPENDENT PILOTS 1001 Connecticut Avenue, NW ASSOCIATION Washington, D.C. 20036 3607 Fern Valley Road Telephone: (202) 955-5600 Louisville, KY 40219 Facsimile: (202) 955-5616 (502) 967-0341 ext. 2205 (502) 753-3252 (fax) Counsel to Independent Pilots Association [email protected] JOINT APPENDIX TABLE OF CONTENTS VOLUME II of V Tab FAA Docket No. Document Description Page No. No. 9 FAA-2009-1093-2333 Comments of Air Transport Association of 788 America Inc. (Nov. 15, 2010) 10 FAA-2009-1093-2221 Comments of Cargo Airline Association 1058 (Nov. 15, 2010) 11 FAA-2009-1093-2245 Comments of Federal Express Corporation, 1353 d/b/a FedEx Express (Nov. 15, 2010) 12 FAA-2009-1093-1893 Comments of Independent Pilots 1419 Association to the Flightcrew Member Duty and Rest Requirements Proposed Rule (Nov. 15, 2010) 13 FAA-2009-1093-2287 Comments of Kalitta Air, L.L.C. (Nov. 15, 1498 2010) TAB 9 BEFORE THE DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. --------------------------------------------------------------- : In the matter of : : Notice of Proposed Rulemaking for : Flightcrew Member Duty and Rest : Docket No. FAA-2009-1093 Requirements : : --------------------------------------------------------------- COMMENTS OF THE AIR TRANSPORT ASSOCIATION OF AMERICA, INC. Communications with respect to this document should be sent to: David A. Berg Vice President & General Counsel Douglas K. Mullen Senior Attorney AIR TRANSPORT ASSOCIATION OF AMERICA, INC. 1301 Pennsylvania Avenue, NW Washington, DC 20004 [email protected] [email protected] November 15, 2010 788 Executive Summary The fundamental purpose of this rulemaking is to establish operational rules that are based on science and data, including safety and operational data garnered from the U.S. and international airline industry. ATA supports this goal. Although the current regulations setting maximum pilot duty and flight time limits and minimum rest requirements have served the public well over the years – as the industry‘s safety record makes clear--they are many decades old and, to a large extent, were ad hoc decisions with little or no scientific support. Furthermore, interpretations of the regulations issued by the FAA over the years, which have added degrees of complexity to their implementation, likewise reflect individual judgments about safety rather than decisionmaking based on science, data and analysis. Unfortunately, this proposed rule only partially achieves the goal of 21st century rules. Had the FAA limited the proposal to the three core elements of science-based flight duty periods ("FDP"), cumulative FDP and realistic minimum rest requirements, plus Fatigue Risk Management Systems, the FAA would have achieved this goal and it would have the industry‘s backing. Instead, the FAA went well beyond what current scientific research and operational data can support and added many other measures and requirements that, like the regulations they are intended to replace, are based on individual judgments driven by extraneous considerations, including perceptions about the political environment and what is acceptable. These measures include strict daily flight time limits, limits on extending the FDP, treating ―short call‖ reserve as duty, a new schedule reliability test and limitations on split duty rest. The consequence of these scientifically and operationally unjustified requirements is that the proposed rule, taken as a whole, is operationally onerous with duplicative measures that do little to mitigate fatigue or increase safety beyond what the core elements provide. FAA has promulgated a rule that treats the airline industry as operating under a single model instead of a 789 complex industry with a variety of models and operating environments and demands. It treats broad scientific principles that should be applied differently to different operating environments as specific operational limits and applies them uniformly notwithstanding the weight of scientific support for different approaches to different demands. The FAA‘s failure to faithfully base the proposed rule on scientific research is compounded by the lack of rigor in its data analysis. The NPRM relies on specific accidents in which fatigue was not determined to be the cause or the primary cause; accidents in which the primary cause has been addressed by other regulations; and accidents that are dated and do not represent the current operating and regulatory environment. In addition, the NPRM essentially ignores the safety improvements from the recommendations of the Commercial Aviation Safety Team ("CAST") adopted by industry and government over the past 12 years. The NPRM also ignores the operational experience of the international airline community. Neither the United Kingdom‘s CAP-371 regulation nor the European Union‘s Subpart Q regulation, for example, has a daily flight time limit. This is because the body of scientific research and literature demonstrates that in the face of a reasonable FDP, a daily limit is duplicative and unnecessary. Finally, for a variety of reasons, the proposed rule is procedurally defective. The most obvious of these defects, as demonstrated by the Oliver Wyman report accompanying these comments, is that the FAA‘s cost-benefit analysis is fatally flawed. FAA‘s incomplete cost analysis calculates the cost of the rule to be $1.254 billion over ten years. This calculation is off by a magnitude of 15. The actual nominal cost—including direct passenger costs of at least $3.14 billion over ten years— will be $19.641 billion over ten years. Likewise, FAA‘s estimated benefits of $659.4 million over ten years overstate the true benefits, which Oliver Wyman - ii - 790 estimates at no more than $395.6 million, a 40% difference. In addition to the flawed cost- benefit analysis, the NPRM‘s safety analysis is similarly flawed. The factual record that the FAA organized is riddled with mistakes and the analysis fails to make a rational connection between the facts, science and operational experience on the one hand, and the regulatory choices made on the other. Furthermore, the rulemaking process itself was defective in at least two ways. The Administrator set an unreasonable, arbitrary deadline for the 2009 Aviation Rulemaking Committee (ARC) to complete its work, which prevented the stakeholders from fully considering the information and evidence to support new rules or the range of regulatory measures to address pilot performance and fatigue countermeasures, including many of the objectionable requirements in the proposed rule. Also the time allowed to comment on the proposed rule was unreasonable, as was the Administrator‘s decision to deny the stakeholder requests for additional time to comment. The FAA worked on the proposed rule for just over a year after the ARC concluded. Allowing the public just 60 days to comment was unreasonable. For all of these reasons, The NPRM should be withdrawn and revised. Once revised, FAA should publish a Supplemental Notice of Proposed Rulemaking and a new Regulatory Impact Analysis, and allow interested parties a meaningful opportunity to comment on both. - iii - 791 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................. vi I. INTRODUCTION .................................................................................................. 1 II. The FAA's Analysis is Flawed and Does Not Support Imposing Provisions That Will Not Positively Impact Fatigue Mitigation Strategies .................................... 20 A. NTSB Recommendations.......................................................................... 20 B. Research Findings and Scientific Studies ................................................. 23 III. ATA‘s Members Object to the Many Aspects of the Proposal that are Arbitrary, Not Science-Based, Operationally Unsound, or Otherwise Defective ................. 24 A. Inflexible Daily Flight Time Restrictions [Section 117.13] ..................... 24 B. Limitations On Extensions Of The Flight Duty Period [Sections 117.15(c)(2) and 117.19(f)(2)] .................................................................. 30 C. Short Call Reserve as "Duty" [Section 117.21(c)] .................................... 36 D. Schedule Reliability [Section 117.9] ........................................................ 40 E. Split Duty [Section 117.17] ...................................................................... 47 F. Rest Period [Section 117.25(d)] ................................................................ 49 G. Flight Duty Period for Unaugmented Operations [Section 117.15 and Table B] ...................................................................................................
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