UPS Pilots File An
Appeals Challenge To FAA Final Flight & Duty Rule
By Shane Nolan
December 27, 2011 – The Independent Pilots Association
(UPS pilots) filed a Petition for Review in the U.S.
Court of Appeals for the D.C. Circuit in order to
challenge FAA's exclusion of cargo operations from the
flight and duty time rule issued last week.
“The IPA seeks to have cargo operations included within
the scope of the rule because of the safety benefits
provided by the rule. IPA does not seek to delay
implementation of these important safety benefits to
passenger operations,” said IPA General Counsel William
Trent. He stated that the Association, representing the
2,700 pilots flying for UPS, would challenge the rule on
multiple substantive and procedural grounds.
inconsistency of the final rule is remarkable. For
example, the FAA states that current regulations do not
adequately address the risk of fatigue (Rule p.19,) and
that the maintenance of the status quo presents an
‘unacceptably high aviation accident risk” (Rule p.
Yet two of
the very factors that the FAA cites as exacerbating the risk of
pilot fatigue operating at night and crossing multiple time
zones (Rule p.5) are more present in cargo operations than in
passenger operations,” said Trent. “The FAA’s only basis for
excluding cargo rests on a cost benefit analysis,” said Trent.
“Yet, the Agency does not articulate how it arrived at
either the projected costs or benefits of applying the final
rule to cargo operators. The rule is wholly and utterly opaque
when it comes to providing any factual support for the cost
benefit conclusions reached,” he added.
“Procedural irregularities are present as well,” said Trent.
“Cargo operators were allowed to supplement the record after the
public NPRM comment period was officially closed. Accepted into
the closed record was unsupported costing data provided by
carriers. This data
has not been subject to public scrutiny or review,” Trent added.
In January, IPA will file additional court papers including a
preliminary statement of issues it expects to raise in the case.
Chairman Deborah A.P. Hersman said “Fatigue has been on the
NTSB's Most Wanted List of transportation safety improvements
since 1990. Over the first century of powered flight, countless
accidents trace pilot fatigue as a contributing factor.
“While this is not a perfect rule, it is a huge improvement over
the status quo for large passenger-carrying operations. Yet, we
are extremely disappointed that the new rule is limited to Part
121 carriers. A tired pilot is a tired pilot, whether there are
10 paying customers on board or 100, whether the payload is
passengers or pallets."
“While this is not a perfect rule, it is a huge improvement over the status quo for large passenger-carrying operations. Yet, we are extremely disappointed that the new rule is limited to Part 121 carriers. A tired pilot is a tired pilot, whether there are 10 paying customers on board or 100, whether the payload is passengers or pallets."
“As the FAA said in its draft, "Fatigue threatens aviation safety because it increases the risk of pilot error that could lead to an accident." This is particularly a concern for crews that fly "on the back side of the clock." We look forward to working with the FAA and the aviation community to support the rule's essential education and training components and to identify areas where additional measures are needed”.
U.S House Chairman of the Transportation and Infrastructure Committee, John L. Mica (R-FL) said “While the final rule provides improvement for aviation safety, pilots must take personal responsibility for coming to work rested and fit for duty. The government cannot put a chocolate on every one of their pillows and tuck them in at night.”
Key components of this final rule
for commercial passenger flights include: Varying flight and duty
requirements based on what time the pilot’s day begins. The new rule
incorporates the latest fatigue science to set different requirements
for pilot flight time, duty period and rest based on the time of day
pilots begin their first flight, the number of scheduled flight segments
and the number of time zones they cross. The previous rules included
different rest requirements for domestic, international and unscheduled
flights. Those differences were not necessarily consistent across
different types of passenger flights, and did not take into account
factors such as start time and time zone crossings.
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