[Federal Register Volume 79, Number 236 (Tuesday, December 9, 2014)]
[Rules and Regulations]
[Pages 72970-72975]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28868]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 117 and 121

[Docket No. FAA-2009-1093]
RIN 2120-AJ58


Flightcrew Member Duty and Rest Requirements

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notification of availability.

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SUMMARY: The FAA is issuing a Final Supplemental Regulatory Impact 
Analysis (Final SRIA) of its final rule that amended its existing 
flight, duty and rest regulations applicable to certain certificate 
holders and their flightcrew members. A copy of the Final SRIA may be 
found in the docket for the rulemaking. The Final SRIA responds to 
comments that were made in response to the Initial Supplemental 
Regulatory Impact Analysis, and, where appropriate, incorporates new 
information provided by the commenters. In addition, the Final SRIA 
makes adjustments to the methodology used to estimate the costs and 
benefits of applying the final flight, duty, and rest rule to cargo-
only operations, and includes additional sensitivity analyses. The 
results of the Final SRIA concludes that the base-case benefits of 
applying the flight, duty, and rest rule to cargo-only operations would 
be about $3 million, and the high-case benefits of doing so would be 
about $10 million. Conversely, the costs of applying the flight, duty, 
and rest rule to cargo-only operations would be about $452 million. 
Because the results of the analysis continue to indicate that the costs 
of mandating all-cargo operation compliance with the new flight, duty, 
and rest rule significantly outweigh the

[[Page 72971]]

benefits, the FAA has determined that no revisions to the final rule 
are warranted.

DATES: Effective December 9, 2014.

FOR FURTHER INFORMATION CONTACT: For technical issues: Nan 
Shellabarger, Aviation Policy and Plans (APO-1), Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone (202) 267-3274; email: [email protected]. For legal 
issues: Alex Zektser, Office of the Chief Counsel, International Law, 
Legislation, and Regulations Division (AGC-200), Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone (202) 267-3073; email: [email protected].

SUPPLEMENTARY INFORMATION: On January 4, 2012, the Federal Aviation 
Administration (FAA) issued a final rule that was published in the 
Federal Register as Flight Crew Member Duty and Rest Requirements. 77 
FR 330-403. The regulations, which only apply to passenger operations 
conducted under 14 CFR 121 (part 121), became 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 in the United States Court of Appeals for 
the District of Columbia Circuit. 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 Court to remand the record to 
the agency and to hold the case in abeyance 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 of 
the revised analysis. As a result of that review, the FAA issued an 
Initial Supplemental RIA (Initial SRIA), which provided an expanded 
discussion of the methodology and information sources used in the 
rulemaking analysis, corrected reporting and calculation errors 
identified in the original RIA, and presented a sensitivity analysis on 
key assumptions used in the analysis. The Initial SRIA invited public 
comment on: (1) Whether FAA was statutorily foreclosed from considering 
costs and benefits as part the flight, duty, and rest rulemaking; and 
(2) any other aspect of the initial SRIA.
    In response to the Initial SRIA, the FAA received comments from the 
Independent Pilots Association (IPA); the Cargo Airline Association 
(CAA); the Air Line Pilots Association, International (ALPA); Airlines 
for America (A4A); the U.S. Airlines Pilots Association (USAPA); the 
Airline Professionals Association, Teamsters Local 1224 (Teamsters 
Local 1224); Atlas Air Worldwide Holdings, Inc. (Atlas Air); the 
NetJets Association of Shared Aircraft Pilots (NetJets); and the 
Coalition of Airline Pilots Associations (CAPA). The FAA has considered 
these comments, and now issues the Final SRIA as a product of that 
consideration.
    The FAA's discussion of public comments is divided into two parts. 
Consideration of whether the FAA was statutorily foreclosed from 
considering costs and benefits is set out in the next section of this 
notice. Consideration of all other significant issues raised in the 
comments is set out in the Final SRIA in the section entitled 
Disposition of Issues Raised by Comments Received Regarding the Initial 
Supplemental RIA. Because the FAA concludes that it is permitted to 
consider costs and benefits and because the costs of mandating all-
cargo-operation compliance with the new flight, duty, and rest rule 
significantly outweigh the benefits, the FAA has determined that no 
revisions to the final rule are warranted.

A. Whether the FAA Is Statutorily-Foreclosed From Considering Costs and 
Benefits

    In their comments, IPA, ALPA, and Teamsters Local 1224 argue that 
section 212 of Public Law 111-216 \1\ prohibits the FAA from 
considering costs as part of its flight, duty, and rest rulemaking. 
These commenters rely on Whitman v. Am. Trucking Ass'n, 531 U.S. 457 
(2001) for the proposition that Congress' commitment of authority to 
consider costs must be express. Because Public Law 111-216 does not 
explicitly state that the FAA may consider the costs of a flight, duty, 
and rest rule, these commenters argue that the FAA is statutorily 
foreclosed from considering the costs and benefits of this rule. IPA 
and Teamsters Local 1224 also cite to unrelated statutory provisions 
that explicitly discuss costs for the proposition that Congress will 
explicitly specify when an agency must consider costs as part of 
rulemaking. The statutes that these commenters cite to are: (1) Two FAA 
statutes concerning airports (49 U.S.C. 44706(c) and (d)); and (2) a 
Federal Motor Carrier Safety Administration (FMCSA) statute concerning 
fatigue (49 U.S.C. 31136(c)(2)).
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    \1\ Airline Safety and Federal Aviation Administration Extension 
Act of 2010 (Public Law 111-216, 124 Stat. 2362 (49 U.S.C. 44701 
note).
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    ALPA argues that Public Law 111-216 prohibits consideration of 
costs and benefits because it requires the FAA to issue a rule based 
upon the ``best available scientific information . . . to address 
problems related to pilot fatigue.'' \2\ ALPA asserts that the FAA's 
decision to make compliance with the final rule voluntary for all-cargo 
operations was based solely on cost considerations, and as such, failed 
to satisfy these statutory mandates. ALPA and Teamsters Local 1224 also 
state that section 212 of Public Law 111-216 includes a list of factors 
that Congress wanted the FAA to consider and costs and benefits were 
not included as factors for consideration. With regard to the fact that 
this list included a statement directing the FAA to consider ``[a]ny 
other factor the [FAA] Administrator considers appropriate,'' \3\ IPA 
argues that ``Congress would not have relied on such a modest phrase as 
`other matters [FAA] considers appropriate' to allow cost 
considerations to cancel out the scientific information and safety 
issues it specified.'' \4\
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    \2\ ALPA Comment at 7.
    \3\ Public Law 111-216, sec. 212(a)(2)(M).
    \4\ IPA Comment at 74.

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[[Page 72972]]

    IPA argues that the legislative history also shows that Congress 
intended to foreclose the FAA from considering costs and benefits. In 
support of its argument, IPA cites to a sentence in the H.R. Report No. 
111-284, which states that an `` `updated rule will more adequately 
reflect the operating environment of today's pilots and will reflect 
scientific research on fatigue.' '' \5\ IPA asserts that costs do not 
reflect the pilot's operating environment or scientific research on 
fatigue and thus, they cannot be considered.
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    \5\ IPA Comment at 71 (quoting H.R. Rep. No. 111-284, at 7).
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    Conversely, CAA, A4A, and Atlas Air argue that the FAA is not 
statutorily prohibited from considering the costs and benefits of the 
flight, duty, and rest rule. CAA asserts that the statutory direction 
for the FAA to issue regulations ``based on the best available 
scientific information'' includes a ``scientifically sound cost-benefit 
analysis,'' as benefits could not be calculated without the use of 
scientific information.\6\ CAA, A4A, and Atlas Air, and A4A also point 
out that Public Law 111-216 explicitly authorizes the FAA to consider 
``[a]ny other matter the Administrator considers appropriate.'' \7\ 
These commenters assert that Congress would have considered it 
appropriate for the FAA to consider costs because: (1) The FAA has long 
used cost-benefit analysis in its rulemakings; and (2) Executive Order 
13,563 explicitly requires the consideration of costs and benefits in 
rulemaking.
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    \6\ CAA Comment at 4.
    \7\ Id.; Atlas Air Comment at 6; A4A Comment at 2-3.
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    Finally, CAA, Atlas Air, and A4A argue that statutory silence as to 
the issue of costs and benefits does not prohibit an agency from 
considering costs and benefits because an analysis of costs and 
benefits must be specifically barred by statute. In support of this 
position, these commenters cite to Entergy Corp. v. Riverkeeper, Inc., 
556 U.S. 208 (2009) and Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000).

1. Overview of Cost-Benefit Analysis Legal Framework

    The process used by a federal executive-branch agency to conduct a 
legislative rulemaking, such as the one at issue here, is governed by 
statutes and executive orders. This process includes, among other 
things, providing notice and an opportunity for the public to comment 
on the proposed rule \8\ and considering the costs and benefits of 
rulemaking.\9\ The requirement to consider the costs and benefits of a 
rulemaking has been a longstanding feature of administrative law. This 
requirement was first imposed on executive agencies in 1981 by 
President Reagan's Executive Order 12291, which stated that 
``[r]egulatory action shall not be undertaken unless the potential 
benefits to society for the regulation outweigh the potential costs to 
society; [and] . . . each agency shall, in connection with every major 
rule, prepare, and to the extent permitted by law consider, a 
Regulatory Impact Analysis.'' \10\ Each successive president after 
President Reagan has retained the requirement of cost-benefit analysis 
for significant rulemakings. Currently, this requirement is imposed by 
Executive Orders 12866 and 13563.
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    \8\ 5 U.S.C. 553.
    \9\ Executive Orders 12866 and 13563.
    \10\ Executive Order 12291, 46 FR 13193 (February 17, 1981).
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    Executive Order 12866, issued on September 30, 1993, specifies that 
``[i]n deciding whether and how to regulate, agencies should assess all 
costs and benefits of available regulatory alternatives, including the 
alternative of not regulating.'' \11\ The executive order first 
requires an agency to determine whether a problem exists and whether 
direct regulation is the best way of addressing that problem.\12\ If an 
agency determines that a problem exists and that regulation is the best 
way of addressing the problem, then the agency must design regulations 
``in the most cost-effective manner to achieve the regulatory 
objective.'' \13\ As part of this process the agency must ``assess both 
the costs and the benefits of the intended regulation and, recognizing 
that some costs and benefits are difficult to quantify, propose or 
adopt a regulation only upon a reasoned determination that the benefits 
of the intended regulation justify its costs.'' \14\
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    \11\ Executive Order 12866, sec. 1(a).
    \12\ Id. sec.1(b)(1)-1(b)(3).
    \13\ Id. sec. 1(b)(5).
    \14\ Id. sec. 1(b)(6).
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    Executive Order 13563 was issued in January 2011, and it reaffirms 
the cost-benefit analysis required by Executive Order 12866.\15\ 
Specifically, Executive Order 13563 emphasizes that each agency must 
``propose or adopt a regulation only upon a reasoned determination that 
its benefits justify its costs (recognizing that some benefits and 
costs are difficult to quantify).'' \16\ The executive order further 
states that ``[i]n applying these principles, each agency is directed 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. Where 
appropriate and permitted by law, each agency may consider (and discuss 
qualitatively) values that are difficult or impossible to quantify, 
including equity, human dignity, fairness, and distributive impacts.'' 
\17\
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    \15\ See Executive Order 13563, sec. 1(b).
    \16\ Id.
    \17\ Id. sec. 1(c).
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    In short, cost benefit analysis, as imposed by executive order, has 
been a central feature of agency rulemaking. The FAA is no exception, 
and since 1981, it has consistently used cost-benefit analysis in its 
rulemakings.\18\ For example, in its last flight, duty, and rest 
rulemaking, which took place in 1985, the FAA issued a final rule that 
included a cost-benefit analysis.\19\ The FAA's cost benefit analysis 
in that instance showed that ``the benefits of the amendments [in the 
final rule] exceed any costs involved with showing compliance.'' \20\
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    \18\ See, e.g., Commuter Operations and General Certification 
and Operations Requirements, 60 FR 65832, 65911-12 (Dec. 20, 1995) 
(conducting a cost-benefit analysis); Reduction of Fuel Tank 
Flammability in Transport Category Airplanes, 73 FR 42444, 42486-88 
(July 21, 2008) (same); Safety Management Systems for Part 121 
Certificate Holders Notice of Proposed Rulemaking, 75 FR 68224 (Nov. 
5, 2010). See also Pilot Certification and Qualification 
Requirements Final Rule, 78 FR 42324 (July 15, 2013); Qualification, 
Service, and Use of Crewmembers and Aircraft Dispatchers Final Rule, 
78 FR 67800 (Nov. 12, 2013).
    \19\ 50 FR 29306, 29319 (July 18, 1985).
    \20\ Id.
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2. Analysis of Public Law 111-216

    Next, we turn to an examination of whether Congress intended the 
FAA to ignore its statutory and Executive Order rulemaking requirements 
and not consider a cost-benefit analysis in its decision-making 
process.
    First, we consider IPA, ALPA, and Teamsters Local 1224's argument 
that the list of factors in Public Law 111-216 sec. 212(a)(2) was 
intended to be exhaustive. Subsections 212(a)(2)(A) through (L) list 12 
specific factors that Congress wanted the FAA to consider as part of a 
flight, duty, and rest rulemaking.
    (A) Time of day of flights in a duty period.
    (B) Number of takeoff and landings in a duty period.
    (C) Number of time zones crossed in a duty period.
    (D) The impact of functioning in multiple time zones on different 
daily schedules.
    (E) Research conducted on fatigue, sleep, and circadian rhythms.
    (F) Sleep and rest requirements recommended by the National 
Transportation Safety Board and the National Aeronautics and Space 
Administration.

[[Page 72973]]

    (G) International standards regarding flight schedules and duty 
periods.
    (H) Alternative procedures to facilitate alertness in the cockpit.
    (I) Scheduling and attendance policies and practices, including 
sick leave.
    (J) The effects of commuting, the means of commuting, and the 
length of the commute.
    (K) Medical screening and treatment.
    (L) Rest environments.
    However, in subsection 212(a)(2)(M), Congress stated that the FAA 
could also consider ``[a]ny other matters the [FAA] Administrator 
considers appropriate.'' Because in sec. 212(a)(2)(M) Congress 
expressly provided the FAA with the discretion to consider factors that 
were not explicitly listed in sec. 212(a)(2)(A)-(L), we conclude that 
Congress did not intend the list of factors in sec. 212(a)(2)(A)-(L) to 
be exhaustive.
    We are also unpersuaded by IPA's argument that the language in sec. 
212(a)(2)(M) does not include the consideration of costs. This 
statutory section allows the FAA to consider ``[a]ny other matters the 
Administrator considers appropriate.'' (emphasis added). Thus, by the 
plain language of the statute, the FAA can consider any other matter 
that the FAA Administrator considers appropriate for the flight, duty, 
and rest rulemaking. Here, in light of the requirements in Executive 
Orders 12866 and 13563, the FAA Administrator considered a cost-benefit 
analysis to be a necessary and appropriate consideration for the 
flight, duty, and rest rulemaking, thus making the analysis an 
acceptable consideration under sec. 212(a)(2)(M).
    This means that, by the plain language of Public Law 111-216, sec. 
212(a)(2)(M), the FAA was not foreclosed from satisfying its cost-
benefit-analysis obligations under Executive Orders 12866 and 13563. 
Rather, by requiring the agency to ``conduct a rulemaking proceeding'' 
\21\ and allowing the agency to consider other matters, it is clear, 
based on the plain language of the statute, that Congress intended that 
the FAA follow its long-standing rulemaking process and comply with its 
obligations under the Administrative Procedure Act and executive 
orders, including Executive Order 12866 and 13563.
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    \21\ Public Law 111-216, sec. 212(a)(2).
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    Next, we turn to ALPA's argument that Public Law 111-216, sec. 
212(a)(1) was intended to foreclose a cost-benefit analysis. That 
section states ``[i]n accordance with paragraph [(a)](3),\22\ the 
Administrator of the Federal Aviation Administration shall issue 
regulations, based on the best available scientific information, to 
specify limitations on the hours of flight and duty time allowed for 
pilots to address problems relating to pilot fatigue.'' While sec. 
212(a)(1) requires the FAA to conduct a flight, duty, and rest 
rulemaking, sec. 212(a)(1) is silent as to the scope of the final rule 
that must be issued under this statute. Because of this silence, a 
flight, duty, and rest rule, such as the one at issue here, that 
applies to a subset of pilots subject to FAA jurisdiction would not 
violate sec. 212(a)(1), as this statutory provision does not require 
the final flight, duty, and rest rule to apply to all pilots subject to 
FAA's jurisdiction.
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    \22\ Section 212(a)(3) requires that the FAA issue a notice of 
proposed rulemaking within 180 days of enactment and issue a final 
rule within a year of enactment.
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    We now turn to IPA, ALPA, and Teamsters Local 1224's argument that 
an agency may not consider costs and benefits unless that agency's 
statute explicitly instructs it to do so. We disagree with this 
assertion and agree with CAA, A4A, and Atlas Air that statutory silence 
as to costs means that an agency may consider costs and benefits.
    In 2000, the Court of Appeals for the D.C. Circuit conducted an 
examination of the governing caselaw at that time, and concluded that 
an agency is barred from considering costs ``only where there is clear 
congressional intent to preclude consideration of cost.'' Michigan v. 
EPA, 213 F.3d 663, 678 (D.C. Cir. 2000). While the Supreme Court has 
issued several cases on this issue since that time, we do not believe 
that these cases changed this fundamental principle of statutory 
interpretation.
    In the most recent case to address this issue, Entergy Corp. v. 
Riverkeeper, Inc., 556 U.S. 208 (2009), the Supreme Court examined a 
statutory provision in the Clean Water Act. The statutory provision at 
issue in that case directed the EPA to set regulatory standards for 
cooling water intake structures that reflect `` `the best technology 
available for minimizing adverse environmental impact.' '' Id. at 218 
(quoting 33 U.S.C. 1326(b)). The statute made no explicit mention of a 
cost-benefit analysis. Riverkeeper, 556 U.S. at 222. The Supreme Court 
concluded that the statute's silence as to agency consideration of 
costs and benefits ``is meant to convey nothing more than a refusal to 
tie the agency's hands as to whether cost-benefit analysis should be 
used, and if so to what degree.'' Id.
    In a case decided eight years prior to Riverkeeper, Whitman v. Am. 
Trucking Ass'n, 531 U.S. 457 (2001), the Supreme Court examined a 
different EPA statute. In Whitman, the court examined EPA's 
consideration of costs under the Clean Air Act. While the provisions of 
the Clean Air Act at issue in that case did not explicitly mandate cost 
considerations, there were other provisions of the Clean Air Act that 
did contain explicit cost-consideration requirements.\23\ In that 
context, the fact that the Clean Air Act provisions at issue did not 
have explicit cost considerations meant that Congress did not want the 
agency to consider costs. Thus, as the Supreme Court subsequently 
pointed out, Whitman ``stands for the rather unremarkable proposition 
that sometimes statutory silence, when viewed in context, is best 
interpreted as limiting agency discretion.'' \24\
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    \23\ See Riverkeeper, 556 U.S. at 223 (explaining the rationale 
for the Whitman decision).
    \24\ Id. (emphasis added).
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    We agree with CAA, A4A, and Atlas Air that the situation in this 
case is more analogous to Riverkeeper than it is to Whitman. Unlike the 
Clean Air Act statute at issue in Whitman, there are no statutory 
provisions in Public Law 111-216 that contain explicit cost-benefit 
consideration requirements. Indeed, in addition to the flight, duty, 
and rest rulemaking provisions of section 212, Public Law 111-216 
contains seven other mandates for the FAA to conduct rulemaking 
proceedings, none of which mention a cost benefit analysis.\25\ 
Consequently, the fact that section 212 of Public Law 111-216 does not 
explicitly mention a cost-benefit analysis is meaningless, as this 
analysis also is not explicitly mentioned anywhere in Public Law 111-
216. Thus, we conclude that, just like the statute in Riverkeeper, 
Congress' omission of an

[[Page 72974]]

explicit cost-benefit discussion in Public Law 111-216, sec. 212 was 
``meant to convey nothing more than a refusal to tie the agency's hands 
as to whether cost-benefit analysis should be used, and if so to what 
degree.'' Riverkeeper, 556 U.S. at 222.
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    \25\ Those provisions are in Public Law 111-216, secs. 203(b)(2) 
(requiring the Administrator to issue regulations to carry out this 
subsection); 206(b)(1)-(2) (requiring the Administrator to issue an 
NPRM and final rule based on the recommendations of an aviation 
rulemaking committee regarding flight crewmember mentoring, 
professional development, and leadership); 208(a) (requiring ``the 
Administrator . . . [to] conduct a rulemaking proceeding to 
require'' air carriers to provide ground and flight training to 
flight crewmembers on aircraft stall recognition and recover, as 
well as recognition of aircraft upset and recovery); 209(a) 
(requiring the Administrator to issue a final rule with respect to 
the NPRM published on Jan. 12, 2009 relating to training programs 
for flight crewmembers and aircraft dispatchers); 215(a) (requiring 
the Administrator to ``conduct a rulemaking proceeding to require 
all part 121 air carriers to implement a safety management 
system''); 216(a)(1) (requiring the Administrator to ``conduct a 
rulemaking proceeding to develop and implement means and methods for 
ensuring that flight crew members have proper qualifications and 
experience''), and 217(a) (requiring the Administrator to ``conduct 
a rulemaking proceeding to amend part 61 of title 14, Code of 
Federal Regulations, to modify requirements for the issuance of an 
airline transport pilot certificate'').
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    Furthermore, we do not find IPA and Teamsters Local 1224's citation 
to statutory language in unrelated statutes discussing cost 
considerations to be persuasive. These commenters cite to the cost 
considerations specified in the following statutes: (1) Two FAA 
statutes concerning airports (49 U.S.C. 44706(c) and (d)); and (2) a 
Federal Motor Carrier Safety Administration (FMCSA) statute concerning 
fatigue (49 U.S.C. 31136(c)(2)).
    Here, the two airports statutes cited by IPA and Teamsters Local 
1224 (49 U.S.C. 44706(c) and (d)) deal with the issuance of an airport 
operating certificate to a person desiring to operate an airport. Both 
of these statutes are completely unrelated to the flight, duty, and 
rest rulemaking at issue in this case, as the flight, duty, and rest 
rule is limited to 14 CFR part 121 air-carrier operations and does not 
affect airport operating certificates. In addition, neither 49 U.S.C. 
44706(c) nor 49 U.S.C. 44706(d) was enacted or changed by Public Law 
111-216, and thus fall outside the scope of the Supreme Court's holding 
in Whitman. Accordingly, the fact that Congress explicitly mentioned 
costs in 49 U.S.C. 44706(c) and (d) is irrelevant for the purposes of 
construing the meaning of Public Law 111-216, sec. 212(a).
    Furthermore, the mere fact that both of these statutes are 
administered by the FAA is not dispositive. In Whitman, the Supreme 
Court analyzed a Clean Air Act statute administered by the EPA and 
concluded that the statute prohibited the consideration of costs. 
Whitman, 531 U.S. at 457. In Riverkeeper, the Supreme Court analyzed a 
Clean Water Act statute, also administered by the EPA, and reached a 
different result: That the statute's silence as to costs meant that the 
EPA could consider costs and benefits. See Riverkeeper, 556 U.S. at 
222. If one cost-benefit statutory provision is carried over to all 
other statutes administered by an agency, regardless of whether the 
statutory provisions fall within the same Act or Public Law, then 
Riverkeeper would have been decided differently, as the EPA-
administered Clean Air Act provisions would have controlled the 
statutory construction of the EPA-administered Clean Water Act 
provisions at issue in Riverkeeper.
    Similarly, the FMCSA statute cited by the commenters (49 U.S.C. 
31136(c)(2)) was not enacted or changed by Public Law 111-216 and does 
not apply to the FAA's flight, duty, and rest rulemaking. Section 31136 
gives FMCSA the power to prescribe regulations for commercial motor 
vehicle safety. Because the FAA does not have jurisdiction to regulate 
in this area, this statute is not relevant for FAA purposes.
    Finally, we are unpersuaded by IPA's legislative history argument. 
IPA points to a single sentence in the H.R. Report, which states that 
an `` `updated rule will more adequately reflect the operating 
environment of today's pilots and will reflect scientific research on 
fatigue,' '' \26\ to assert that the FAA was limited to considering 
scientific research on fatigue in its decision-making process. Neither 
this sentence, nor the legislative history, provide any indication that 
Congress intended for the FAA to ignore its statutory and executive 
order obligations and not consider cost-benefit analysis in conducting 
this rulemaking. Furthermore, the legislative history regarding all of 
the rulemaking mandates in Public Law 111-216 makes no mention of 
Congress's intent to foreclose FAA's consideration of costs and 
benefits.\27\ To the contrary, as discussed earlier, Congress 
explicitly instructed the FAA in section 212(a)(2)(M) of Public Law 
111-216 to consider ``[a]ny other matters the [FAA] Administrator 
considers appropriate.'' Accordingly, we find that Congress did not 
intend to statutorily foreclose the FAA from considering costs and 
benefits in the flight, duty, and rest rulemaking at issue here.
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    \26\ IPA Comment at 71 (quoting H.R. Rep. No. 111-284, at 7).
    \27\ See H.R. Report No. 111-284 (House committee report making 
no mention of a Congressional intent to foreclose a cost-benefit 
analysis or override Executive Orders 12866 and 13563).
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B. Summary of Final Supplemental RIA

    Turning to the Final Supplemental RIA (Final SRIA), the Final SRIA 
responds to comments made in response to the Initial SRIA, and, where 
appropriate, the Final SRIA incorporates information and suggestions 
made by the commenters. The Final SRIA adjusts the methodology used to 
estimate the benefits of applying the final rule to cargo-only 
operations in the following ways (there are no changes to the benefits 
estimates for passenger operations):
     Adjusts the aircraft models used in the base and high 
case.
     Accounts for the possibility of non-crew passengers being 
involved in a catastrophic accident for the high case.
     Accounts for the possibility of ground fatalities 
resulting from a catastrophic accident for the high case.
     Accounts for additional medical costs of non-fatal 
injuries for the base case.
     Revises the effectiveness rating of the final rule for the 
sole cargo accident in the accident history analysis from 75 percent to 
15 percent.\28\
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    \28\ This change was made in response to CAA's comment 
concerning the single all-cargo accident that would have been 
mitigated by the provisions of this rule. As discussed more fully in 
the Final SRIA, CAA correctly pointed out that the schedules of the 
flightcrew members involved in the accident would have complied with 
the provisions of this rule if this rule had applied to those 
flightcrew members. Thus the FAA reduced the effectiveness rating to 
15% in the final SRIA.
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     Includes a section describing the non-quantified benefits 
of the final rule.
    This Final SRIA adjusts the methodology used to estimate the costs 
of applying the final rule in the following ways:
     Calculates the cost of the aircraft downtime separately 
for passenger and cargo operations.
     Incorporates new data on the number of primary lineholders 
relative to the number of flightcrew members for carriers in the 
freight industry groups.
     Includes the costs of employer provided benefits for 
airline employees in addition to wage costs when estimating labor costs 
associated with the final rule for both passenger and cargo-only 
operations.
    Moreover, the Final SRIA includes an additional sensitivity 
analysis (found in Appendix B) to explore whether using a limited 
number of alternative assumptions suggested in comments to the Initial 
SRIA would impact the central conclusion that the costs of applying the 
final rule to cargo-only operations vastly outweigh the estimated 
benefits. The sensitivity analysis does not alter that central 
conclusion. Table 1 and Table 2 summarize the differences between the 
original RIA the Initial SRIA, and the Final SRIA.

[[Page 72975]]



                      Table 1--Nominal Costs and Benefits (2012-2023), Passenger Operations
                                                [2011 $Millions]
----------------------------------------------------------------------------------------------------------------
                                                                   Original RIA    Initial SRIA     Final SRIA
----------------------------------------------------------------------------------------------------------------
Total Benefits_Base Case........................................            $376            $401            $401
Total Benefits_High Case........................................             716             757             757
Total Costs.....................................................             390             457             462
----------------------------------------------------------------------------------------------------------------


                        Table 2--Nominal Costs and Benefits (2012-2023), Cargo Operations
                                                [2011 $Millions]
----------------------------------------------------------------------------------------------------------------
                                                                   Original RIA    Initial SRIA     Final SRIA
----------------------------------------------------------------------------------------------------------------
Total Benefits_Base Case........................................          $20.35              $5              $3
Total Benefits_High Case........................................           32.55              31              10
Total Costs.....................................................          306                550             452
----------------------------------------------------------------------------------------------------------------

    The Final SRIA results in data that provides justification for the 
exclusion of cargo operations from the final rule, and continues to 
provide justification for the final rule on passenger operations.\29\ 
As discussed above, the FAA is not only required by Executive Orders 
12866 and 13563 to consider the costs and benefits of making compliance 
with this flight, duty, and rest rule mandatory for all-cargo 
operations, but Congress specifically permitted FAA to consider ``[a]ny 
other matters the Administrator considers appropriate.'' \30\ Because 
the costs of mandating all-cargo-operation compliance significantly 
exceed the benefits of doing so, the FAA has determined that no 
revisions to the final rule are warranted.
---------------------------------------------------------------------------

    \29\ The costs of the final rule for passenger operations are 
somewhat higher than the base case benefits estimate for those 
operations but well below the high case estimate.
    We also note that saving just 85 lives in a 10 year period would 
cause this rule to be cost beneficial.
    \30\ Public Law 111-216, sec. 212(a)(2)(M).

    Issued on December 3, 2014.
Mark W. Bury,
Assistant Chief Counsel for International Law, Legislation and 
Regulations.
[FR Doc. 2014-28868 Filed 12-8-14; 8:45 am]
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