The Road Forward: Flight and Duty Time
February 6, 2012

Dear Fellow FedEx Pilots,

I just returned from Washington where our team took part in the meetings and briefings that I detailed earlier this month. From the ALPA National Government Affairs team, we received updates concerning initial responses to our situation from members of Congress. Tuesday afternoon we attended the Aero Club event to hear Secretary of Transportation LaHood speak regarding Part 117. Our ALPA delegation met with the IPA President and members of his team to discuss the possibility of collaborative efforts. We visited with members of Congress and their staff to get a first hand feel for awareness and concern for our issue. Many of these discussions were designed to continue the assessment of the “legislative route” and consider the propriety of additional options.

I started this trip with a particular interest in re-evaluating the prospect of legal action or a dual track, legislative and legal, to force a change to the Part 117 injustice. The ALPA Legal Department provided the following comments which are best shared verbatim:

The question: Is filing a lawsuit challenging the FAA's exclusion of cargo carriers from Part 117 which establishes duty limits and rest requirements for flight crewmembers prudent at this time? Has recent information changed your opinion that the legislative route provides the highest likelihood of success?

We do not recommend filing such a lawsuit at this time. In addition to what was previously sent, the below are some of the reasons and information:

·          Applying the standards of review to the facts of this case, the likelihood of success is not strong.

·         If the litigation is not successful, it will make the efforts to obtain compliance by legislation or voluntary compliance more difficult because the judicial branch of government will have affirmed that the FAA's exclusion of cargo carriers was appropriate.

·         If successful, the court is unlikely to order cargo carriers to be included under the new FT/DT rule. The matter will, in our opinion, be sent back to the FAA. The FAA is likely to restart the rulemaking process and allow notice and comment.

·         If the court sends the matter back to the FAA, the FAA will most likely publish a supplemental NPRM which may take the position that it is excluding cargo carriers and ask for comments.

·         Since there will be no statutory deadline (because this would be a court mandated action) a new rulemaking process could result in no rule -- just as has happened in the past.

·         ALPA entering the litigation could cause ATA and others to participate and oppose the entire rule.

·         When a matter is in litigation, Congress is extremely reluctant to take legislative action and carriers adopt a wait and see attitude rather than try complying voluntarily. If ALPA files a lawsuit it will interfere with any legislative effort.

·         Litigation may stop the FAA from making some needed technical corrections which FedEx pilots desire.

·         The process could take over a year to get a decision. The last challenge to a flight time limitations which was by initiated by ATA, took 18 months and was unsuccessful.

·         We recommend two courses of action that we believe will more likely produce a desired result without the downsides outlined above. These are legislative and voluntary compliance.

·         Legislative campaign is underway. This has been successful in the past with GPW9 TCAS, and FFDO's.

·         DOT is working to get cargo carriers to voluntarily comply

·         ALPA is also working to get voluntary compliance.

As can be seen above, the continuing legal research confirms our belief that the route with the highest probability of success going forward is the legislative one. That being said, it is a most unfortunate fact of life that nothing happens fast in Washington, especially in an election year. If you are like me, this is very frustrating. This is also why options like lawsuits in a situation like this have such a seductive appeal. Filing a lawsuit is immediate and makes you feel good that you are fighting. I like that very much. That does not, however, assure success and I like winning better. Despite a desire for quicker, more public solution, this trip confirmed that the current path chosen, the legislative route, has the highest likelihood for complete success at this time. In fact, the trip also seemed to confirm that ALPA’s pursuit of a legal challenge would pose a risk of undermining the legislative route. As always, we will continuously assess this situation.

As we move forward, please be reminded that the legislative route has another advantage over filing a legal challenge which the Legal Department did not mention. Lawsuits hinge almost exclusively on lawyers and judges. Pilots are for the most part on the sidelines. Legislative changes and regulatory reform, however, enable ALPA to use its real strength – the people in the cockpits who fly the airplanes.  Please stand ready because your role in the fight to come is critical.

Since the FAA announcement of the Cargo Carve Out, ALPA FedEx pilots have joined with pilots from other ALPA MECs to work aggressively on Capitol Hill educating Congress on the new FAR 117 regulation and the failure of the FAA to include cargo operations and pilots in the rule. Working with the ALPA Government Affairs Department, we have met with nearly 150 offices on Capitol Hill and we are finding a very favorable response. Our message is being delivered clearly and effectively by professional pilots in uniform and we have the facts on our side. Having cargo pilots and non-cargo pilots together in meetings demonstrates the significance of including cargo operations in FAR 117, as our pilots fly into the same airports, on the same routes and over the same neighborhoods as passenger pilots.

In the coming weeks and months, we will work with ALPA Government Affairs to launch a grassroots effort to engage every ALPA member (and their friends and families) in our effort to communicate directly with their federal representatives in Congress. We are working on a PAC drive, where ALPA PAC will focus its fundraising efforts on including cargo pilots in FAR 117. Our direct lobbying will continue to grow. We are working towards the introduction of legislation soon which will give us a platform and a more specifically defined cause. We are planning another substantial push on Capitol Hill, and will be recruiting a force of pilots to blitz Capitol Hill for a full-scale lobbying and media campaign. We plan to deploy resources to all corners of the country, and will focus especially on reaching key congressional districts. Significant technological enhancements made at ALPA National and FedEx ALPA has us well-positioned for this campaign. But in the end, it will all depend on you, me and our brothers and sisters finding the time and energy to see this through. 

This effort will take time. Legislation does not pass Congress quickly, especially in this 112^th Congress, which may set a new record for inaction. We need to spend a lot of time, effort and money on the Hill, building a base of knowledge, relationships, and support for legislation action. Our opponents on this issue have a lot more money, but we have something they don’t – more than 53,000 active and engaged pilots to rally to our cause.

I hope that this update gives you a good feel for the information we are receiving and helps you to better understand the route forward and the reasons for that route. Stay Informed, Stay Engaged, and be ready for ALPA’s call.

In Unity,

Captain Scott Stratton    

FDX ALPA MEC Chairman