Air Transport Ass'n of America, Inc. v. F.A.A., 01-1027.

• Decision Date: 31 May 2002
• Docket Number: No. 01-1306.,No. 01-1303.,No. 01-1027.,01-1027.,01-1303.,01-1306.
• Citation: 291 F.3d 49
• Parties: AIR TRANSPORT ASSOCIATION OF AMERICA, INC., Petitioner v. FEDERAL AVIATION ADMINISTRATION, Respondent Air Line Pilots Association, International, et al., Intervenors. Air Transport Association of America, Petitioner v. Federal Aviation Administration, Respondent Regional Airline Association, Petitioner v. Federal Aviation Administration, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

291 F.3d 49

AIR TRANSPORT ASSOCIATION OF AMERICA, INC., Petitioner v. FEDERAL AVIATION ADMINISTRATION, Respondent

Air Line Pilots Association, International, et al., Intervenors.

Air Transport Association of America, Petitioner v. Federal Aviation Administration, Respondent Regional Airline Association, Petitioner v. Federal Aviation Administration, Respondent

No. 01-1027.

No. 01-1303.

No. 01-1306.

United States Court of Appeals, District of Columbia Circuit.

Argued January 18, 2002.

Decided May 31, 2002.

COPYRIGHT MATERIAL OMITTED

On Petitions for Review of an Order of the Federal Aviation Administration

Michael S. Sundermeyer argued the cause for Air Transport Association of America, Inc.

Lorraine B. Halloway argued the cause for Regional Airline Association. R. Bruce Keiner Jr. was on brief.

Edward Himmelfarb, Attorney, United States Department of Justice, argued the cause for the Federal Aviation Administration. Robert S. Greenspan, Attorney, United States Department of Justice, was on brief.

Joseph L. Manson III and Douglas W. Hall were on brief for intervenor, Regional Aviation Partners.

Jonathan A. Cohen, James W. Johnson and Daniel M. Katz were on brief for intervenors Air Line Pilots Association, International and Coalition of Airline Pilots Associations.

Before: EDWARDS, HENDERSON and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

Air Transport Association of America, Inc. (ATA) and Regional Airline Association (RAA) seek review of the Federal Aviation Administration's November 20, 2000 interpretation (issued by letter) of Federal Aviation Regulation 121.471, 14 C.F.R. § 121.471 (FAR 121.471), and attendant Notice of Enforcement Policy (Notice) entitled "Flight Crewmember Flight Time Limitations and Rest Requirements," published in the Federal Register, 66 Fed. Reg. 27,548 (May 17, 2001). ATA contends the letter interpretation and Notice are inconsistent with the plain language of FAR 121.471. In addition, ATA maintains that the letter interpretation constitutes a substantive change to FAR 121.471 and, accordingly, requires notice-and-comment rulemaking under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq. We disagree.

I.

The Federal Aviation Act of 1958, 49 U.S.C. §§ 40101 et seq. (Act), directs the Administrator of the Federal Aviation Administration (FAA) to "promote safe flight of civil aircraft in air commerce" by prescribing "regulations in the interest of safety for the maximum hours or periods of service of aircrew and other employees of air carriers." 49 U.S.C. § 44701(a)(4). The rules issued by the FAA under section 44701(a)(4) of the Act are generally referred to as "flight time limitations."¹ In 1985, pursuant to notice-and-comment rulemaking, the FAA promulgated FAR 121.471, establishing flight time limitations and rest requirements for "flight crewmembers engaged in air transportation." See Flight Time Limitations and Rest Requirements, 50 Fed.Reg. 29,306 (July 18, 1985). While the FAA was focused on simplifying scheduling and giving air carriers added scheduling flexibility, it also noted in the notice of proposed rulemaking that the "current Part 121 rule ... provides no protection against acute short-term fatigue for crewmembers." See Flight Time Limitations and Rest Requirements for Flight Crewmembers, 49 Fed.Reg. 12,136, 12,136-7 (March 28, 1984). The regulation allows a domestic airline "certificate holder" to schedule, and a crewmember to accept, a flight assignment only if the crewmember's total flight time does not exceed yearly, monthly and weekly maximum flight time limitations. 14 C.F.R. § 121.471(a)(1)-(3). In addition, the regulation establishes a maximum of eight hours of flight time between "required rest periods." 14 C.F.R. § 121.471(a)(4). Pursuant to subsection (b), during the twenty-four consecutive hours preceding "the scheduled completion of any flight segment," a crewmember must be scheduled for a rest period of at least nine consecutive hours for eight hours or fewer of "scheduled flight time"; ten consecutive hours of rest for more than eight but fewer than nine hours of "scheduled flight time"; and eleven hours of rest for nine or more hours of "scheduled flight time." Id. § 121.471(b)(1)-(3). Subsection (c), however, allows a carrier a measure of scheduling flexibility by way of a "compensatory rest period." A required rest period of nine hours may be "scheduled for or reduced to" a minimum of 8 hours if the crewmember is given compensatory rest of at least ten hours "begin[ning] no later than 24 hours after the commencement of the reduced rest period." Id. § 121.471(c)(1).² Compensatory rest, like required rest under paragraph (b), may not be reduced or delayed under any circumstances. See 14 C.F.R. § 121.471(e); see also 50 Fed.Reg. at 29314 ("If a flight crewmember does not receive the required number of hours of rest, the operator and the flight crewmember are in violation of the regulation").³

On September 26, 2000 Captain Richard D. Rubin, Chairman of the Flight Time — Duty Time Committee of the Allied Pilots Association, submitted to the FAA several questions regarding FAR 121.741, which questions apparently arose as a result of changes in American Airlines's pilot reserve system. On November 20, 2000 FAA Deputy Counsel James Whitlow responded by letter (Whitlow Letter) to Rubin's questions. The Whitlow Letter begins by stating that FAR 121.471(b)(1) requires a minimum of nine consecutive hours of scheduled rest in the twenty-four hours preceding eight or fewer hours of "scheduled flight time." The nine hours' rest period may be reduced pursuant to FAR 121.471(c)(1) to a minimum of eight hours if a minimum of ten hours of compensatory rest begins no later than twenty-four hours after the commencement of the reduced rest period. More significantly, the Whitlow Letter provides that "look-back" rest⁴ is computed by using "actual expected flight time and taxi-in time, based on the specific conditions that exist on the day, to determine the scheduled arrival time for purposes of determining whether a flight should be commenced." Whitlow Letter at 3. Irrespective of the carrier's published flight time, then, "scheduled flight time" under FAR 121.471 should be calculated (or recalculated) using the actual conditions on the day of departure regardless whether the length of the flight is longer or shorter than the originally scheduled flight time. Once this information is calculated, "[i]f it is known, or reasonably should be known, that a flight segment will result in less than eight hours of look-back rest for a particular crew, the flight may not leave the gate." Whitlow Letter at 4.⁵

On January 18, 2001 ATA petitioned for review of the Whitlow Letter (No. 01-1027) and RAA intervened. Four months later, the FAA published in the Federal Register note of its intent to "rigorously enforce existing regulations governing flight crewmember rest requirements." Notice, 66 Fed.Reg. at 27,548 (May 17, 2001). The Notice incorporated the Whitlow Letter and advised that, within six months of the date of the Notice's publication, the FAA intended to begin a comprehensive review of flight scheduling practices and to "deal stringently with any violations." Id. ATA and RAA then filed separate petitions for review of the Notice (Nos. 01-1303 and 01-1306). We consolidated for review all three petitions. See July 25, 2001 Consolidation Order.⁶ On September 5, 2001 we granted ATA's motion to stay the Notice.

II.

A. FAA's Interpretation of FAR 121.471

Because the Whitlow Letter⁷ constitutes the FAA's interpretation of its own regulation, that interpretation must be afforded substantial deference and upheld unless "plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994); see also Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 584 (D.C.Cir.1997), cert. denied, 523 U.S. 1003, 118 S.Ct. 1184, 140 L.Ed.2d 315 (1998). Accordingly, we defer to the FAA's view unless "an alternative reading is compelled by the regulation's plain language or by other indications of the [agency's] intent at the time of the regulation's promulgation." Thomas Jefferson Univ., 512 U.S. at 512, 114 S.Ct. at 2386-87 (quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 99 L.Ed.2d 515 (1988)). ATA contends that the Whitlow Letter, by requiring the recalculation of a previously computed rest period, is inconsistent with both the text and the purpose of FAR 121.471. ATA maintains that the phrase "scheduled completion of any flight segment" in subsection (b) means that compliance with FAR 121.471 turns solely on the legality of the originally established flight schedule irrespective of any unexpected flight delay that may require re-scheduling. See ATA Blue Br. at 25. The phrase, ATA asserts, cannot be squared with the Whitlow Letter, which requires scheduled flight time to take into account "actual expected flight time." See Whitlow Letter at 4.

The FAA responds that the phrase "scheduled completion of any flight segment" can reasonably be understood to include a re-scheduled flight time based on actual flight conditions. To be sure, "scheduled completion" can be construed narrowly to refer only to the originally scheduled flight completion time. The point, however, is that the FAA's more expansive interpretation is not unreasonable. A rescheduled completion of a flight segment based on flight conditions existing in fact is nonetheless a "scheduled" completion. Nothing in the text of FAR 121.471 or in the ordinary usage of the word "scheduled"⁸ dictates that the timetable of a particular flight segment can be determined only when the schedule is originally created regardless of adjustments made necessary by then-current conditions.

ATA's interpretations of subsection (b)'s term ...