AVIATION / FAA issues revised regulatory analysis to new (as of a year ago) flight crew duty and rest regulation that apply to Part 121 (passenger airline) operations, and allow application to cargo-only on a voluntary opt-in basis. Meanwhile litigation to strike down new rule continues in DC Circuit.

Who is affected? Mandatory for all Part 121 certificate holders and their flight crews. Voluntary for those cargo-only operations who “opt in” with the FAA for voluntary compliance.

(December 12, 2012, Availability Of Initial Supplemental Regulatory Impact Analysis ):

This is a release of analysis by the FAA to head off a courtroom defeat of the FAA’s rule on flight crew duty and rest requirements issued a year ago.

It is not a new rule. That is what the FAA issued December 21, 2011.

It is not a revision of the previously issued new rule.

It is a statement of information about the rule.

Specifically it is an amendment to the “Regulatory Impact Analysis” that the law requires an administrative agency like the FAA to provide in support of its new (December 21, 2011) rule – an “Initial Supplemental Regulatory Impact Analysis”.

The new rules are now being challenged in the U.S.  Court of Appeals for the D.C. Circuit on the grounds that the “Regulatory Impact Analysis” accompanying the issuance of those rules is flawed. This entry in the Federal Registry is meant to buttress what now the FAA as well as those attacking the new rule view as the previously flawed factual case that is part of the basis of the new rule.

“The FAA is issuing an Initial Supplemental Regulatory Impact Analysis of its final rule amending its existing flight, duty and rest regulations applicable to certain certificate holders and their flightcrew members. That document may be found in the docket listed above. The Initial Supplemental Regulatory Impact Analysis serves to provide more detail on the potential impacts the final rule would have on cargo-only operations. In addition, the Initial Supplemental Regulatory Impact Analysis provides expanded discussion of the methodology and information sources used in the original Regulatory Impact Analysis, corrects some reporting of results and minor calculation errors present in that document, and presents sensitivity analysis on key assumptions used in the analysis.”

“On December 21, 2011, the Federal Aviation Administration (FAA) issued a final rule that was published in the Federal Register as Flight Crew Member Duty and Rest Requirements on January 4, 2012. 77 FR 330. The regulations, which are limited to passenger operations conducted under 14 CFR part 121 (part 121), become effective on January 4, 2014. On December 21, 2011, the FAA also issued a Regulatory Impact Analysis (original RIA) dated November 18, 2011 (FAA-2009-1093-2477). The original RIA provides the basis for the FAA’s decision to (1) promulgate the final rule establishing new flight, duty and rest requirements for flight crews in passenger operations; and (2) exclude flight crews in cargo-only operations from the new mandatory requirements. While cargo-only operations are not required to meet the new regulations, the rule permits these operators to opt in to the rule if they so choose.

“On December 22, 2011 the Independent Pilots Association (IPA) filed a timely petition for review. During the course of reviewing the administrative record for the purpose of preparing the government’s brief, the FAA discovered errors in the original RIA that supports the final rule. The errors were associated with the scope of costs related to the implementation of the regulations for cargo-only operations. These errors appeared to be of a sufficient amount that the FAA concluded it was prudent to review the portion of the cost-benefit analysis related to cargo-only operations and allow interested parties an opportunity to comment on the corrected analysis.

“On May 17, 2012, the FAA asked the United States Court of Appeals for the District of Columbia Circuit to suspend the litigation of the final rule while the agency corrected the inadvertent errors it had discovered. The court granted the FAA’s motion on June 8, 2012. While the passenger operations rule is not at issue in the court proceedings, the FAA, in an abundance of caution, decided to have that portion of the original RIA reevaluated as well. The FAA contracted with the John A. Volpe National Transportation Systems Center to review the original RIA for accuracy, correct any errors identified, and prepare a supplemental regulatory evaluation laying out the revised analysis. This Initial Supplemental RIA is the product of that review.

“The FAA does not believe that it is statutorily foreclosed from issuing an RIA and considering the costs and benefits of the flight, duty, and rest rule. Section 212 of Public Law 111-216 contains a list of factors that Congress wanted the FAA to consider as part of this rulemaking. There is no indication in the statutory text of this section that this list was intended to be exhaustive. However, in its motion to the Court of Appeals, the FAA stated that it would provide petitioner with an opportunity to present its view that Public Law 111-216 prohibits the FAA from conducting a cost-benefit analysis. Accordingly, the FAA seeks comment on whether Public Law 111-216 permits the FAA to conduct a cost-benefit analysis.

“Turning to the Initial Supplemental RIA, while this Initial Supplemental RIA largely mirrors the original RIA in both content and organizational structure, it does not re-evaluate the policy decisions behind the FAA’s decision to issue a final rule implementing new flight, duty and rest requirements for part 121 carriers engaged in passenger operations. Rather, this Initial Supplemental RIA provides expanded discussion of the methodology and information sources used in the rulemaking analysis, corrects reporting and calculation errors identified in the original RIA, and presents sensitivity analysis on key assumptions used in the analysis. [1] A new Appendix B contains the results of those sensitivity analyses while Appendix C contains detailed data tables, which are summarized in the body of this Initial Supplemental RIA. The Initial Supplemental RIA results in data that provides greater justification for the exclusion of cargo operations from the final rule, and continues to provide justification for the final rule on passenger operations. As a result, the FAA has determined that no revisions to the final rule on either cargo or passenger operations is warranted.

“In the original RIA, the portion of scheduling costs related to cargo-only operations of air carriers that conduct both passenger and cargo-only operations (mixed operations carriers) were inadvertently excluded from the reported costs of extending the final rule to cargo-only operations. This Initial Supplemental RIA fixes that omission and that revision has significantly increased the estimates of the stated costs of extending the final rule to cargo-only operations. Due to inclusion of impacts on cargo-only operations, a few air carriers were reclassified for ease of explication.

“Table 1 and Table 2 summarize the differences between the original RIA and the Initial Supplemental RIA.”