Aviators for Safe & Fairer Regulation, Inc. v. Federal Aviation Administration , 221 F.3d 222 ( 2000 )

United States Court of Appeals
For the First Circuit
No. 99-1888
AVIATORS FOR SAFE AND FAIRER REGULATION, INC.,
Petitioner,
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE FEDERAL AVIATION ADMINISTRATION
Before
Selya, Boudin and Lynch,
Circuit Judges.
John M. Edwards with whom John C. Blessington and
Kirkpatrick & Lockhart LLP were on brief for petitioner.
Charles W. Scarborough, Appellate Staff, Civil Division,
Department of Justice, with whom David W. Ogden, Acting
Assistant Attorney General, and Robert S. Greenspan, Appellate
Staff, Civil Division, Department of Justice, were on brief for
respondent.
July 25, 2000
BOUDIN, Circuit Judge. Petitioner, Aviators for Safe
and Fairer Regulation, Inc. ("Aviators"), is a trade association
of about fifty on-demand air charter companies. It brings this
case to challenge a so-called notice of enforcement policy
issued by the Federal Aviation Administration ("FAA") that
purports to interpret, and to express its intent to enforce, a
preexisting regulation governing how much rest pilots or other
flight crewmembers must get between flight assignments.
Air charter companies furnish "air taxi" service to
customers on demand rather than on a scheduled basis. The FAA
regulates such companies under Part 135 of its regulations, 14
C.F.R. pt. 135 (2000). The regulation at issue in this case,
id. § 135.267(d), was adopted in its current form in October
1985 and aims to ensure that pilots have adequate rest for
purposes of air safety, see 49 U.S.C. §§ 40101(d), 44701(a)(4)-
(5) (1994 & Supp. II 1996). It states, in relevant part, that
each flight assignment to unscheduled one- and two-pilot crews
"must provide for at least 10 consecutive hours of rest during
the 24-hour period that precedes the planned completion time of
the assignment." 14 C.F.R. § 135.267(d).
The term "rest" is not defined in the regulation. On
several occasions, the FAA sought to refine the term through
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rulemaking but those efforts were abortive.1 Then, on June 15,
1999, without prior notice or rulemaking proceedings, the FAA
issued a "notice of enforcement policy." The notice said that
it was merely reiterating the FAA's "longstanding interpretation
of its regulations" concerning rest requirements and continued
in pertinent part:
[T]he FAA has consistently interpreted the
term rest to mean that a flight crewmember
is free from actual work from the air
carrier or from present responsibility for
work should the occasion arise. Thus the
FAA previously has determined that a flight
crewmember on reserve was not at rest if the
flight crewmember had a present
responsibility for work in that the flight
crewmember had to be available for the
carrier to notify of a flight assignment.
Notice of Enforcement Policy, 64 Fed. Reg. 32176, 32176 (1999).
The principal controversy centers upon how (and in one case
whether) the notice resolves two different scenarios, which we
shall refer to as the duty-to-report and the duty-to-be-
available.
1See, e.g., Notice of Proposed Rulemaking, 60 Fed. Reg.
65951, 65959-61, 65976 (1995); Notice of New Task Assignment for
the Aviation Rulemaking Advisory Committee (ARAC), 63 Fed. Reg.
37167, 37167 (1998). The term "rest," again without definition,
is used in several other regulations establishing flight crew
rest requirements for larger and scheduled carriers, see 14
C.F.R. §§ 121.471(b), 135.265(b) (2000) (9 to 11 continuous
hours in the 24-hour period preceding completion of a flight
assignment); id. §§ 121.471(d), 135.265(d) (one uninterrupted
24-hour period weekly); the term appears to be used
interchangeably among these regulations.
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In the duty-to-report scenario, a crewmember who is
nominally off duty has a responsibility during the period to
leave a contact number, to be fit to fly, to take any telephone
calls or other communications notifying him of a flight
assignment, and to report for that assignment in a reasonable
time (e.g., two hours). In the duty-to-be-available scenario,
the same is true but the crewmember has the option to accept or
decline a flight assignment that is offered during this off-duty
period. It is easy to see why such arrangements would be
attractive to an air taxi carrier.
Under either scenario, a call to the crewmember
followed by an accepted assignment would (at some stage)
terminate any "rest" that might otherwise be accruing. The
crewmember, to be eligible for the assignment, would have to
have met the "ten hours rest" quota based on "rest" that had
already occurred. But the FAA's position in its notice as to
the duty-to-report scenario (the duty-to-be-available scenario
is a different issue) is that even if no call were made during
this nominal off-duty period, none of the period would count as
rest because the generic responsibility to leave a number, take
calls, and report if assigned would negate "rest" for the entire
period.
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Aviators sought direct review of the notice under 49
U.S.C. § 46110 (1994), which permits any person "disclosing a
substantial interest in an order issued by" the FAA with respect
to aviation safety matters to seek review in an appropriate
court of appeals, id. § 46110(a). The court of appeals has
"exclusive jurisdiction to affirm, amend, modify or set aside
any part of the order and it may order" the FAA to conduct
further proceedings. Id. § 46110(c). We consider first
threshold issues as to our authority to review the notice; then,
Aviators' procedural claim that the notice required notice and
comment rulemaking; and last, Aviators' substantive attacks on
the FAA's position.
1. The FAA does not directly dispute that its notice
of enforcement policy constitutes an "order," but raises the
issue obliquely, saying that it is merely giving advance notice
of an intention to enforce the law. Whether a notice thus
limited would be reviewable is beside the point; here, the FAA's
"notice" adopts a firm interpretation of an existing regulation.
The term "order" is read expansively in review statutes
generally, 5 U.S.C. § 551(6) (1994) (an "order" includes "the
whole or a part of a final disposition, [including those]
declaratory in form"), and this statute specifically, New York
v. FAA, 712 F.2d 806, 808 (2d Cir. 1983); Northwest Airlines,
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Inc. v. Goldschmidt, 645 F.2d 1309, 1313-14 (8th Cir. 1981). To
that extent, the notice here qualifies as a reviewable "order,"
assuming other conditions (e.g., finality, ripeness) are met.
Several circuits (although not this one) have said that
there must be "an administrative record" for agency action to be
a reviewable order under section 46110. See, e.g., Green v.
Brantley, 981 F.2d 514, 519 (11th Cir. 1993); City of Alexandria
v. Helms, 728 F.2d 643, 646 (4th Cir. 1984). Yet almost all of
these cases find that the requisite record need not be
substantial so long as the agency's position is definitive and
clearly expressed. See San Diego Air Sports Ctr., Inc. v. FAA,
887 F.2d 966, 969 (9th Cir. 1989) (a letter may suffice). In
any event, an inadequate record is more likely to be a basis for
setting aside final agency action than for refusing to review
it. See Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 419-20 (1971).
The FAA does not contest the notice's finality--and
with good reason. The notice is unquestionably final in a
procedural sense: it is not a proposal to interpret a
regulation, and there is no indication that the FAA plans to
conduct further proceedings on this declaration. See
Alexandria, 728 F.2d at 646. Rather, the FAA's principal
challenge to our review at this time--its request that review be
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deferred until there is an actual enforcement proceeding in
which objections might be raised in defense--is an argument
properly considered under the rubric of ripeness. See Public
Serv. Comm'n v. Patch, 167 F.3d 15, 23 (1st Cir. 1998).
An issue is ripe for judicial review if it is "fit" for
immediate review and delay would impose "undue hardship" on
litigants. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49
(1967). As to hardship, the FAA's notice promised "enforcement"
(after a 180-day grace period that has already expired, 64 Fed.
Reg. 32176, 32176 (1999)), not opportunities for negotiations or
further clarification, and enforcement may include penalties up
to and including the revocation of charters, 14 C.F.R. §
13.19(b) (2000). Conversely, compliance may also require major
changes in air taxi operations, and deferral of review would
clearly threaten hardship. Cf. Lincoln House, Inc. v. Dupre,
903 F.2d 845, 847 (1st Cir. 1990).
With respect to fitness, the most common concern is
whether a rule or order is framed in terms so general that only
its application to specific facts (usually in an enforcement
proceeding) would permit the court to make a reasoned judgment.
Patch, 167 F.3d at 23. As to the duty-to-report scenario, we
think that the FAA's position is plain enough from the language
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of its notice,2 especially when read in light of prior statements
(discussed below), and involves a clear-cut pattern of conduct
that may arise frequently in air taxi operations. In this
respect, the notice is well fit for review at this time.
The duty-to-be-available scenario is different.
Although Aviators has presented a distinct pattern of conduct
likely to be important to air taxi operations, we find no
similar clarity in the notice (see note 2, below), or earlier
interpretive letters (see note 6, below), to show how the FAA
would resolve the scenario. True, one footnote in the FAA's
brief, and its statements at oral argument, suggest that an
unrequited duty-to-be-available is not "rest," but we are
unwilling to bind the agency to the less-than-clear litigation
position of its lawyers in deciding whether a controversy is fit
for review. Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
212-13 (1988).
A final issue of "authority" which was not raised by
the FAA--indeed, it commendably conceded the point at oral
argument--deserves to be mentioned. The review statute, 49
2
Pertinently, the FAA notice says that the crewmember must
be "free . . . from present responsibility for work should the
occasion arise." 64 Fed. Reg. 32176, 32176 (1999). By
contrast, in the duty-to-be-available scenario, it is much less
clear that the crewmember has a "present responsibility for
work" since the assignment can be declined.
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U.S.C. § 46110 (1994), imposes a sixty-day time limit on
petitions for review unless "there are reasonable grounds for
not filing by the [sixtieth] day" after the order, id. §
46110(a). Here, the petition for review (filed August 6, 1999)
is timely as to the notice of enforcement policy (issued June
15, 1999), but comes years after the order adopting the 1985
regulation at issue. Yet, as we will see, Aviators could be
regarded in some respects as attacking the original regulation.
If so, this case arguably falls within the proviso of
the statute permitting a later challenge where there are
"reasonable grounds" for the delay.3 Here, reasonable grounds
probably exist for a deferred attack inasmuch as neither the
original 1985 regulation nor accompanying commentary eliminated
uncertainty as to how the FAA might resolve any of a number of
scenarios (including the duty-to-report and the duty-to-be-
available) that might arise in practice. Cf. Charter Township
of Huron v. Richards, 997 F.2d 1168, 1172-73 (6th Cir. 1993);
Greater Orlando Aviation Auth. v. FAA, 939 F.2d 954, 960 (11th
Cir. 1991).
3
The proviso is unusual (compare the Hobbs Act, 28 U.S.C. §§
2341-51 (1994 & Supp. II 1996)), but reviewing courts have often
read the Hobbs Act and like statutes as containing an implicit
"good cause" exception, see American Gas Ass'n v. FERC, 912 F.2d
1496, 1514 (D.C. Cir. 1990); RCA Global Comms., Inc. v. FCC, 758
F.2d 722, 730 (D.C. Cir. 1985).
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2. As the parties have briefed the issue, the first
question on the merits is procedural: whether the FAA was
required to conduct notice and comment rulemaking before issuing
its notice of enforcement policy. If the FAA were altering or
enlarging obligations imposed by a preexisting regulation,
notice and comment rulemaking would be required, see Warder v.
Shalala, 149 F.3d 73, 80-81 (1st Cir. 1998), cert. denied, 67
U.S.L.W. 3470 (U.S. Apr. 19, 1999) (No. 98-1131), but a mere
"interpretation" can ordinarily be done without rulemaking, id.
at 80; see also 5 U.S.C. § 553(b)(B) (1994). Whether
"ordinarily" means "always" is an interesting question. Cf.
Dugan v. Ramsay, 727 F.2d 192, 196-98 (1st Cir. 1984) (rejecting
agency "interpretation" without rulemaking); Jicarilla Apache
Tribe v. FERC, 578 F.2d 289, 292-93 (10th Cir. 1978) (same).
To determine whether the FAA is altering or enlarging
the 1985 regulation depends on the "meaning" of the original
regulation (validity is a different question). See Warder, 149
F.3d at 80-81. The 1985 regulation, as applied to the scenarios
at issue, supplies no very clear answer because it does not
define "rest" or otherwise indicate how the FAA would resolve
the duty-to-report scenario. See 14 C.F.R. 135.267(d) (1986);
50 Fed. Reg. 29306, 29311-14, 29317 (1985). Nor is help
provided by a precursor regulation first codified in 1970 from
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which the key 1985 language was borrowed. See 14 C.F.R. §
135.136(b) (1970); 34 Fed. Reg. 1443, 1444 (1969).
Of course, subsequent administrative interpretation is
often treated as evidencing, or substituting for, a supposed
"original" intent. See Mullins Coal Co. v. Director, 484 U.S.
135, 159-60 (1987). And the gist of Aviators' claim is that
despite the open-textured quality of the 1985 regulation, it
had been given meaning over time and had come to rest in a well-
settled interpretation that is favorable to Aviators' cause,
which the notice of enforcement policy mistakenly contradicts.
A less extreme version is that at least the agency must give
"reasons" why it is reversing an established position. See
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983); Citizens Awareness Network, Inc. v. Nuclear
Regulatory Comm'n, 59 F.3d 284, 290 (1st Cir. 1995).
As to the duty-to-report scenario, it is clear to us
that there is no "reversal": the FAA has consistently
maintained--in its interpretive letters, bulletins, and other
statements--that an off-duty period encumbered by the threat of
interruption from a mandatory assignment is not rest. For
example, Flight Standards Information Bulletin 92-02 (Jan. 24,
1992) states that "the FAA has consistently interpreted its
"nest" requirement to be satisfied only if the rest time is:
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determined prospectively . . . . A period of time during which
a pilot has a present responsibility for work, if called, does
not qualify as a rest period. This should be contrasted with a
pilot who does not have a present responsibility to fly, when
called."4
Admittedly, this position, whether in its most recent
articulation in the notice, or in the FAA's previous
explanations, is not as clear as it could be;5 but it is clear
enough. In fact, there are interpretative statements to the
same effect preceding 1985. See, e.g., Letter from A.W. Lalle,
Acting Associate General Counsel, FAA, to John F. Nevins, Air
Line Pilots Association (Feb. 5, 1968) ("[W]hen a flight
4
See also Letter from Donald P. Byrne, Assistant Chief
Counsel, FAA, to Frederick G. Pappas, Jr., Director, Flight
Services, Midwest Corporate Aviation, Inc. (June 24, 1991) ("[A]
rest period must be prospective in nature. Stated another way,
a flight crewmember must be told in advance that he or she will
be on a rest period for the duration required by the
regulations. In addition, a rest period must be free of all
restraint. However, the Agency's interpretations hold that
receipt of one telephone call or beeper call does not constitute
a violation of a rest period provision. Moreover, a flight
crewmember in a rest period must be free of present
responsibility for work should the occasion arise.").
5
Interestingly, "rest period" is defined in section
135.273(a), a different section of the same subpart as the
regulation at issue, added in 1994 to govern flight attendants
in air charter operations. 14 C.F.R. § 135.273(a) (2000); 59
Fed. Reg. 42663, 42663 (1994). It is there defined as "the
period free of all responsibility for work or duty should the
occasion arise," the very language used in the 1999 notice.
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crewmember is required by the air carrier to hold himself
available to call, it constitutes a restraint which interrupts
the 24-hour period, which we have held should be free from a
loss of freedom or restraint."). More important, there is no
evidence that the FAA has ever said that the duty-to-report
scenario did count as rest. The 1992 FAA bulletin on which
Aviators relies, which we have just quoted, actually hurts its
"reversal" claim.
Nor are we troubled by Aviators' argument that the
FAA's current position on the duty-to-report scenario is
inconsistent with a decision by the Eighth Circuit. See United
States v. Ozark Airlines, Inc., 506 F.2d 526 (8th Cir. 1974).
That decision construed a weekly rest requirement regulation, 14
C.F.R. 121.471(d) (1970), and inferred from the use of "duty" in
other subsections that rest "from all further duty" meant rest
from "duty aloft." Ozark, 506 F.2d at 237. "Duty aloft" was
changed to "flight time" in the 1985 version of this regulation
to make clear that "duty," for purposes of the rest
requirements, was a broader concept than "duty aloft." See 14.
C.F.R. §§ 121.471(a)-(c) (1986).
By contrast, the FAA has been much less consistent as
to the duty-to-be-available scenario. The relevant interpretive
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letters appear not merely in tension, but at odds,6 and on this
point, the 1992 Bulletin is arguably helpful to Aviators. See
Flight Standards Information Bulletin 92-02 ("A period of time
during which a pilot has a present responsibility for work, if
called, does not qualify as a rest period. This should be
contrasted with a pilot who does not have a present
responsibility to fly, when called."). But, as earlier
explained, we still do not know for sure how the FAA would
resolve this latter scenario. 3. This brings us to Aviators'
substantive attacks, whether treated as attacks on the notice or
on the regulation itself. Here, the FAA starts with a
substantial advantage: the question how much rest flight
crewmembers should be given to guard against pilot fatigue and
what interruptions should count against satisfying the ten-hour
rest requirement are technical issues involving safety where the
agency's latitude is substantial. See 49 U.S.C. § 40101(d),
6Compare Letter from Donald P. Byrne, Assistant Chief
Counsel, FAA, to Frederick G. Pappas, Jr., Director, Flight
Services, Midwest Corporate Aviation, Inc. (June 24, 1991)
("Does a pager check during a 24 hour standby period interrupt
crew rest? . . . [S]tandy does not constitute crew rest. The
pager check does not interrupt crew rest because crew rest is
not taking place."), with Letter from Donald P. Byrne, Assistant
Chief Counsel, FAA, to B. Stephen Fortenberry, Evergreen
International Airlines, Inc., (undated, in response to a letter
dated October 12, 1989, with respect to section 121.471(d)) ("Is
telephone standby in a hotel or at home 'duty'? No, not in the
sense that it produces the need for the rest period required by
section 121.471(d).").
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44701(a)(4)-(5) (1994 & Supp. II 1996); see also Bargmann v.
Helms, 715 F.2d 638, 641-42 (D.C. Cir. 1983); Air Line Pilots
Ass'n Int'l v. Quesada, 276 F.2d 892, 898 (2d Cir. 1960). And
absent a mistake of law, the standard of review is whether the
agency's actions are arbitrary or capricious, 5 U.S.C. §
706(2)(a) (1994), and whether any fact findings it made rest on
substantial evidence, 49 U.S.C. § 46110(c) (1994).
Nevertheless, Aviators says that the FAA admits that
a brief, unexpected phone call from the carrier does not disturb
rest so as to require the ten-hour clock to be restarted. See,
e.g., Letter from Donald P. Byrne, Assistant Chief Counsel, FAA,
to Albert C. Pod, Vice President, Executive Jet Management (Apr.
19, 1991). The FAA verified at oral argument that it has not
disclaimed that position, and indeed, the language of the 1999
notice --"if the flight crewmember . . . had to be available for
the carrier to notify of a flight assignment"--arguably would
not be triggered by an unanticipated phone call. Aviators says
that, in light of this concession, it is irrational to deny the
"rest" label in the duty-to-report scenario when no call in fact
occurs.
We do not agree. The agency is perfectly entitled to
regard a single unexpected phone call as less of a psychological
interruption to pilot rest than the continuing burden that
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exists in the duty-to-report scenario even when no call occurs.
In the latter case, the pilot is effectively on a leash and
knows that at any point (after ten hours) he may be summoned
back to duty, for which he must remain "fit" to fly. Whether or
not the FAA has drawn the line in the right place, the
distinction drawn is not irrational.
Aviators' best claim is that there is no "explanation
or evidence" in the record that excluding the duty-to-report
time from "rest" is "necessary for, or even advances" safety.
And, although the FAA has elsewhere referred to "scientific
studies of fatigue," Notice of Proposed Rulemaking, 60 Fed. Reg.
65951, 65951 (1995), it points to no evidence or even a
thoughtful discussion of the specific issue either in the notice
or in the order adopting the 1985 regulation. Instead, the
FAA's brief offers an explanation. To remove the taint of post
hoc rationalization, see State Farm, 463 U.S. at 50; Natural
Resources Defense Council v. EPA, 824 F.2d 1258, 1286 & n.19
(1st Cir. 1987), we note that the explanation is pretty obvious;
the harder question is whether it is sufficient.
The FAA's commonsense explanation is this: given the
purpose of the rest requirement to assure that the flight crew
is refreshed and alert, anything that materially compromises a
state of affairs conducive to rest threatens refreshment and
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alertness; and a flight crewmember who is on call and subject to
the various duties imposed by the duty-to-report scenario is
less likely to be as refreshed and alert as one who need not
worry that a demand to fly may come at any time. This is
plausible enough; neither administrators nor judges are expected
to ignore the known realities of human existence. See, e.g.,
Texas E. Prods. Pipeline Co. v. OSHA, 827 F.2d 46, 49 (7th Cir.
1987) (affirming agency's "common sense reading" that a "hole in
the ground is, after all, a hole in the ground").
The force of this commonsense explanation is reinforced
by the fact of its long standing--at least fifty years. In
1949, the acting general counsel of the Civil Aviation
Administration was asked for an interpretation of then-existing
"relief from all duty" requirements. Letter from Robert P.
Boyle, Acting General Counsel, Civil Aviation Administration, to
Coordinator, International Field Office, Lima, Peru (April 22,
1949). The inquiry presented the following scenario: "[An air
carrier] schedules a 'stand by' crew which must remain at home
subject to immediate call as replacement in case any of the
originally scheduled crew are unable, because of sickness, etc.,
to take the trip out as scheduled. This 'stand by' crew, if not
called as a replacement on that day, is then scheduled as a
regular crew for a trip on the following day." Id.
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In response, the acting general counsel ruled:
This appears to be such a lack of freedom of
restraint and release from duty as to
prevent the full and free exercise of an
opportunity to rest intended by the rest
period provisions of the Civil Air
Regulations. It is immaterial that the
pilots are not required to report to the
airport or actively engage in work for the
air carrier during the period of the stand
by schedule. The term "relief from duty" as
used in the above-noted section means that
the pilot must be relieved from either
actual work for the air carrier or present
responsibility for such should the occasion
arise. A "stand by" schedule of the type
described in the memorandum does not provide
such relief from all duty with the air
carrier.
Id.
Of course, without "evidence," we have no way of
knowing just how much these stand-by duties do compromise rest.
But agencies often make choices where no evidence can
demonstrate a single right answer. Determining cut-off toxicity
exposures in environmental regulation, see Public Citizen Health
Research Group v. Tyson, 796 F.2d 1479, 1504-05 (D.C. Cir.
1986), or rates of return in utility cases, see Borough of
Ellwood City v. FERC, 731 F.2d 959, 974-75 (D.C. Cir. 1984), are
good examples. Where, as here, the agency’s choice appears to
be within a zone of reasonableness, a court will normally defer.
See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951);
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Consolidated Oil & Gas, Inc. v. FERC, 806 F.2d 275, 279 (D.C.
Cir. 1986).
The more serious difficulty is the lack of an
opportunity for Aviators or other opponents to offer such
rebuttal commentary or evidence. But, of course, Aviators has
not claimed to have medical studies or expert testimony to show
that the restrictive reading serves little or no purpose: it
says only that the FAA has failed to provide supporting evidence
of its own. Perhaps Aviators can develop compelling
physiological evidence or collect the testimony of affected
pilots to show that duty-to-report time gives pilots as much
"rest" as time at home with no overhanging responsibilities. If
so, Aviators can file a petition tendering the evidence and
asking the FAA to modify its regulation accordingly. 5 U.S.C.
§ 553(e) (1994).
This is a close case and we have given careful
consideration as to whether a remand might be warranted. But
the FAA’s position on duty-to-report time is on its face
plausible even without evidentiary support; this position has
been consistent over time, even assuming that enforcement has
been lax; and there is no indication from Aviators that it could
supply useful evidence if we did order a remand. The FAA should
not assume that the duty-to-be-available scenario--only a step
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further down the road but a significant step since the
crewmember could refuse the assignment--would automatically be
sustainable on the same basis.
A somewhat different rationale for its narrow view of
"rest" seems to be articulated in the FAA's brief in this court
which might, if adopted by the agency itself, provide additional
support for its position on the duty-to-report scenario and also
apply equally to the duty-to-be-available scenario. The
reasoning does not depend on the psychological burden of
overhanging obligations but on the possible threat that
recalling the flight crewmember to duty after the initial ten
hours of rest could throw off the sleeping rhythms of pilots in
an unacceptable way.7 This concern, which the FAA itself may
never have articulated, may or may not be substantial, and we
express no opinion on the merits.
Last, Aviators says that the FAA's position is
unreasonable and unfair because no corresponding rest
requirements exist for fractional ownership programs, which
7 The example given by the FAA brief (slightly corrected) is
of a pilot who goes off duty at midnight on Monday night, wakes
on Tuesday at 6:30 a.m. and would normally go to sleep again at
11 p.m. If the pilot is subject to recall on two hours' notice
after 10 a.m. on Tuesday, conceivably he could be called at 10
p.m. on Tuesday for a flight at 12:30 a.m. on Wednesday at which
point he will have been awake for 18 hours already, unaware that
sometime during that period he should have gotten some sleep.
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allegedly compete with air taxi carriers but are governed by
Part 91 of the FAA's regulations, 14 C.F.R. 91 (2000). This
argument has not been well developed in this court; and there
may be substantive differences in operations that justify the
FAA's decision to regulate the two kinds of programs
differently. But the FAA would have some explaining to do if
the two sets of operations are pertinently the same, especially
if there is a competitive relationship between them. Cf. Town
of Norwood v. New England Power Co., 202 F.3d 392, 402-03 (1st
Cir.), petition for cert. filed, 68 U.S.L.W. 3756 (U.S. May 30,
2000) (No. 99-1914).
However, agencies are not normally required to solve
all similar problems at one time. See Mobil Oil Exploration v.
United Distrib. Co., 498 U.S. 211, 231 (1991). The FAA is
currently reviewing its regulation of those fractional ownership
programs in separate proceedings. Aviators is free to argue its
case in those proceedings, and if unsuccessful, it may seek
review of that agency action under the same statute that enabled
review in this case, 49 U.S.C. § 46110 (1994), or file a
petition for rulemaking to modify the current regulation (14
C.F.R. § 135.267(d) (2000)) and spell out then the disparate
impact claim in greater detail, 5 U.S.C. § 553(e) (1994).
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Accordingly, we sustain the FAA as to the duty-to-
report scenario and treat as unripe Aviators' claims regarding
the duty-to-be-available scenario. With respect to the latter,
Aviators is free to seek a formal declaratory ruling from the
FAA and to present its policy arguments and evidence to the
agency. See 5 U.S.C. § 554(e) (1994). While the agency has
discretion to refuse such a ruling, that refusal is reviewable
for abuse of discretion, see Intercity Transp. Co. v. United
States, 737 F.2d 103, 106-07 (D.C. Cir. 1984); cf. DeNovellis v.
Shalala, 124 F.3d 298, 313 (1st Cir. 1997), and we think that a
refusal to tell Aviators in advance whether the scenario
constitutes "rest" would itself require a lot of explaining.
The petition for review is denied to the extent stated
and otherwise dismissed as presenting an issue unripe for review
at this time.
It is so ordered.
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