72970 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 

the horizontal stabilizer. We are issuing this 

AD to detect and correct such cracks, which 

could propagate until the upper rear spar cap 

severs, and result in failure of the horizontal 

stabilizer upper center or aft skin panel and 

adversely affect the structural integrity of the 

airplane. 

(f) Compliance 

Comply with this AD within the 

compliance times specified, unless already 

done. 

(g) Inspection 

At the applicable compliance time 

specified in paragraph 1.E., ‘‘Compliance,’’ of 

Boeing Alert Service Bulletin MD90–55A017, 

dated September 27, 2013, except as 

provided by paragraph (j) of this AD: Do a 

high frequency eddy current inspection 

(ETHF) for cracks in the areas around the two 

aft-most barrel nut holes of the upper rear 

spar cap; and do all applicable corrective 

actions; in accordance with the 

Accomplishment Instructions of Boeing Alert 

Service Bulletin MD90–55A017, dated 

September 27, 2013. Thereafter, repeat the 

ETHF inspection at the applicable time 

specified in paragraph 1.E., ‘‘Compliance,’’ of 

Boeing Alert Service Bulletin MD90–55A017, 

dated September 27, 2013. Do all corrective 

actions before further flight. 

(h) Post-Repair/Replacement Actions 

For airplanes on which a splice repair or 

replacement was done as specified in Boeing 

Alert Service Bulletin MD90–55A017: At the 

applicable compliance time specified in 

paragraph 1.E., ‘‘Compliance,’’ of Boeing 

Alert Service Bulletin MD90–55A017, dated 

September 27, 2013, do an ETHF inspection 

for cracks at the two aft-most barrel nut holes 

of any repaired or replaced upper rear spar 

cap, in accordance with the Accomplishment 

Instructions of Boeing Alert Service Bulletin 

MD90–55A017, dated September 27, 2013. 

Thereafter, repeat the ETHF inspection at the 

applicable time specified in paragraph 1.E., 

‘‘Compliance,’’ of Boeing Alert Service 

Bulletin MD90–55A017, dated September 27, 

2013. If any cracking is found, before further 

flight, do the repair or replacement, in 

accordance with the Accomplishment 

Instructions of Boeing Alert Service Bulletin 

MD90–55A017, dated September 27, 2013. 

(i) Post-Repair Inspections 

The post-repair inspections of the upper 

rear spar cap of the aft flange that has been 

splice-repaired specified in Table 1 of 

paragraph 1.E., ‘‘Compliance,’’ of Boeing 

Alert Service Bulletin MD90–55A017, dated 

September 27, 2013, are not required by this 

AD. 

Note 1 to paragraph (i) of this AD: The 

damage tolerance inspections (post-repair 

inspections of the upper rear spar cap aft 

flange) specified in Table 1 of paragraph 1.E., 

‘‘Compliance,’’ of Boeing Alert Service 

Bulletin MD90–55A017, dated September 27, 

2013, may be used in support of compliance 

with Section 121.1109(c)(2) or 129.109(b)(2) 

of the Federal Aviation Regulations (14 CFR 

121.1109(c)(2) or 14 CFR 129.109(b)(2)). The 

corresponding actions specified in the 

Accomplishment Instructions of Boeing Alert 

Service Bulletin MD90–55A017, dated 

September 27, 2013, are not required by this 

AD. 

(j) Exception to the Service Information 

Where Boeing Alert Service Bulletin 

MD90–55A017, dated September 27, 2013, 

specifies a compliance time ‘‘after the 

original issue date of this service bulletin,’’ 

this AD requires compliance within the 

specified compliance time after the effective 

date of this AD. 

(k) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, Los Angeles Aircraft 

Certification Office (ACO), FAA, has the 

authority to approve AMOCs for this AD, if 

requested using the procedures found in 14 

CFR 39.19. In accordance with 14 CFR 39.19, 

send your request to your principal inspector 

or local Flight Standards District Office, as 

appropriate. If sending information directly 

to the manager of the ACO, send it to the 

attention of the person identified in 

paragraph (l) of this AD. Information may be 

emailed to: 9-ANM-LAACO-AMOCREQUESTS@faa.gov. 

(2) Before using any approved AMOC, 

notify your appropriate principal inspector, 

or lacking a principal inspector, the manager 

of the local flight standards district office/

certificate holding district office. 

(3) An AMOC that provides an acceptable 

level of safety may be used for any repair 

required by this AD if it is approved by the 

Boeing Commercial Airplanes Organization 

Designation Authorization (ODA) that has 

been authorized by the Manager, Los Angeles 

ACO, to make those findings. For a repair 

method to be approved, the repair must meet 

the certification basis of the airplane, and 14 

CFR 25.571, Amendment 45, and the 

approval must specifically refer to this AD. 

(l) Related Information 

For more information about this AD, 

contact George Garrido, Aerospace Engineer, 

Airframe Branch, ANM–120L, FAA, Los 

Angeles Aircraft Certification Office, 3960 

Paramount Boulevard, Lakewood, CA 90712– 

4137; phone: 562–627–5357; fax: 562–627– 

5210; email: george.garrido@faa.gov. 

(m) Material Incorporated by Reference 

(1) The Director of the Federal Register 

approved the incorporation by reference 

(IBR) of the service information listed in this 

paragraph under 5 U.S.C. 552(a) and 1 CFR 

part 51. 

(2) You must use this service information 

as applicable to do the actions required by 

this AD, unless the AD specifies otherwise. 

(i) Boeing Alert Service Bulletin MD90– 

55A017, dated September 27, 2013. 

(ii) Reserved. 

(3) For Boeing service information 

identified in this AD, contact Boeing 

Commercial Airplanes, Attention: Data & 

Services Management, 3855 Lakewood 

Boulevard, MC D800–0019, Long Beach, CA 

90846–0001; telephone 206–544–5000, 

extension 2; fax 206–766–5683; Internet 

https://www.myboeingfleet.com. 

(4) You may view this service information 

at FAA, Transport Airplane Directorate, 1601 

Lind Avenue SW., Renton, WA. For 

information on the availability of this 

material at the FAA, call 425 227–1221. 

(5) You may view this service information 

that is incorporated by reference at the 

National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, call 

202–741–6030, or go to: http://

www.archives.gov/federal-register/cfr/ibrlocations.html. 

Issued in Renton, Washington, on 

November 19, 2014. 

Suzanne Masterson, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. 2014–28145 Filed 12–8–14; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 cargoonly 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 


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Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72971 

1Airline Safety and Federal Aviation 

Administration Extension Act of 2010 (Public Law 

111–216, 124 Stat. 2362 (49 U.S.C. 44701 note). 

2ALPA Comment at 7. 

3Public Law 111–216, sec. 212(a)(2)(M). 

4 IPA Comment at 74. 

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: nan.shellabarger@

faa.gov. 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: alex.zektser@faa.gov. 

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 cargoonly operations from the new 

mandatory requirements. While cargoonly 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 allcargo-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 StatutorilyForeclosed 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)). 

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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72972 Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 

5 IPA Comment at 71 (quoting H.R. Rep. No. 111– 

284, at 7). 

6CAA Comment at 4. 

7 Id.; Atlas Air Comment at 6; A4A Comment at 

2–3. 

8 5 U.S.C. 553. 

9Executive Orders 12866 and 13563. 

10Executive Order 12291, 46 FR 13193 (February 

17, 1981). 11Executive 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). 15See Executive Order 13563, sec. 1(b). 16 Id. 

17 Id. sec. 1(c). 

18See, e.g., Commuter Operations and General 

Certification and Operations Requirements, 60 FR 

65832, 65911–12 (Dec. 20, 1995) (conducting a costbenefit 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. 

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. 

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. 

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. 

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

Executive Order 13563 was issued in 

January 2011, and it reaffirms the costbenefit 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

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 costbenefit 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

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. 


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Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72973 

21Public Law 111–216, sec. 212(a)(2). 

22Section 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. 

23See Riverkeeper, 556 U.S. at 223 (explaining 

the rationale for the Whitman decision). 

24 Id. (emphasis added). 

25Those 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’’). 

(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 costbenefit-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. 

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. 

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

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 


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26 IPA Comment at 71 (quoting H.R. Rep. No. 

111–284, at 7). 27See 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). 

28This 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. 

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. 

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 aircarrier 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 EPAadministered 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. 

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 noncrew 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

• 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. 


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Federal Register / Vol. 79, No. 236 / Tuesday, December 9, 2014 / Rules and Regulations 72975 

29The 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. 

30Public Law 111–216, sec. 212(a)(2)(M). 

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 allcargo-operation compliance 

significantly exceed the benefits of 

doing so, the FAA has determined that 

no revisions to the final rule are 

warranted. 

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] 

BILLING CODE P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2014–0978] 

Drawbridge Operation Regulation; 

Upper Mississippi River, Dubuque, IA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of deviation from 

drawbridge regulations. 

SUMMARY: The Coast Guard has issued a 

temporary deviation from the operating 

schedule that governs the Illinois 

Central Railroad Drawbridge, across the 

Upper Mississippi River, mile 579.9, at 

Dubuque, Iowa. The deviation is 

necessary to allow the bridge owner 

time to perform preventive maintenance 

that is essential to the continued safe 

operation of the drawbridge. 

Maintenance is scheduled in the winter 

when there is less impact on navigation, 

instead of scheduling work in the 

summer when river traffic increases. 

This deviation allows the bridge to open 

on signal if at least 24-hours advance 

notice is given. It further allows the 

bridge to remain closed for up to 72 

hours in duration occasionally to 

replace larger components as long as 72- 

hours notice is given to the USCG 

District Eight Western Rivers Bridge 

Branch. 

DATES: This deviation is effective from 

5 p.m., December 15, 2014 until 9 a.m., 

March 1, 2015. 

ADDRESSES: The docket for this 

deviation, (USCG–2014–0978) is 

available at http://www.regulations.gov. 

Type the docket number in the 

‘‘SEARCH’’ box and click ‘‘SEARCH.’’ 

Click on Open Docket Folder on the line 

associated with this deviation. You may 

also visit the Docket Management 

Facility in Room W12–140 on the 

ground floor of the Department of 

Transportation West Building, 1200 

New Jersey Avenue SE., Washington, 

DC 20590, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

Holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

deviation, call or email Eric A. 

Washburn, Bridge Administrator, 

Western Rivers, Coast Guard; telephone 

314–269–2378, email Eric.Washburn@

uscg.mil. If you have questions on 

viewing the docket, call Cheryl F. 

Collins, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: The 

Chicago, Central & Pacific Railroad 

requested a temporary deviation for the 

Illinois Central Railroad Drawbridge, 

across the Upper Mississippi River, mile 

579.9, at Dubuque, Iowa to open on 

signal if at least 24-hours advance notice 

is given for 76 days from 5 p.m., 

December 15, 2014 until 9 a.m., March 

1, 2015 for scheduled maintenance on 

the bridge. The deviation further allows 

the bridge to remain closed for up to 72 

hours in duration occasionally to 

replace larger components as long as 72- 

hours notice is given to the USCG 

District Eight Western Rivers Bridge 

Branch. 

The Illinois Central Railroad 

Drawbridge currently operates in 

accordance with 33 CFR 117.5, which 

states the general requirement that the 

drawbridge shall open on signal. 

There are no alternate routes for 

vessels transiting this section of the 

Upper Mississippi River. 

Winter conditions on the Upper 

Mississippi River coupled with the 

closure of Army Corps of Engineer’s 

Lock No. 17 (Mile 437.1 UMR) and Lock 

No. 20 (Mile 343.2 UMR) from 7 a.m. 

January 5, 2015 until 12 p.m., March 6, 

2015 will preclude any significant 

navigation demands for the drawspan 

opening. In addition, Army Corps Lock 

No. 12 (Mile 556.7 UMR) and Lock No. 

13 (Mile 522.5 UMR) will be closed 

from 7:30 a.m. December 15, 2014 to 

11:00 March 1, 2015. 

The Illinois Central Railroad 

Drawbridge, in the closed-to-navigation 

position, provides a vertical clearance of 

19.9 feet above normal pool. Navigation 

on the waterway consists primarily of 

commercial tows and recreational 


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