When it comes to OIRA’s antiregulatory meddling, the Federal Aviation Administration’s (FAA) pilot fatigue rule provides as textbook an example as you could ask for. Following Congress’s instruction that the rule be based on the best available science regarding human sleep patterns, the agency drafted a rule that set minimum rest standards for all commercial pilots. But, the rule couldn’t take effect without the White House’s Office of Information and Regulatory Affairs’ (OIRA) review and final approval. After more than four months, the rule that emerged from the OIRA review gauntlet had been significantly weakened. The minimum rest standards now applied only to commercial passenger pilots, while commercial cargo pilots were completely exempted. The change was based not on sleep science, as Congress mandated. What’s the justification? Fatigue generally affects all pilots the same, no matter what they happen to be hauling behind them. Against logic, OIRA justified the changes on the basis of an irrelevant, and arguably illegal, cost-benefit analysis: According to OIRA, the benefits of protecting cargo from fatigue-induced plane crashes, unlike the benefits of protecting passengers, simply did not justify the costs of abiding by the minimum rest standards. Not coincidentally, during the months-long review, a parade of cargo airline industry representatives marched through OIRA’s doors arguing for the change, relying on this very same cost-benefit analysis argument.
The story above is a familiar one, and most accounts of OIRA interference typically stop with the weakened and delayed final rule’s issuance. In reality, though, OIRA interference usually sets off a chain reaction of negative consequences—in the form of real harms to real people and to the effective functioning of our system of governance—that are worth taking a close look at. Indeed, the FAA’s pilot fatigue rule provides a glaring example of these negative consequences, as several recent developments have demonstrated.
Most dramatically, this past August a UPS cargo plane crashed while attempting an early morning landing at Birmingham–Shuttlesworth International Airport in Alabama, killing both crewmembers on board. In addition to the two fatalities, all of the cargo on the plane was destroyed in the crash, and some homes located near the airport were also allegedly damaged. The National Transportation Safety Board (NTSB) expects that its investigation into this incident will take several months to complete. At this point, however, the NTSB has found no evidence of mechanical failure and is now looking into whether the crash was a result of pilot error—including whether pilot fatigue was a contributing factor. The incident does provide a vivid illustration of what OIRA has put at stake with its meddling. It also provides a cautionary warning of the kinds of needless tragedies we can potentially expect if commercial cargo pilots remain exempted from the FAA’s minimum rest standards.
More recently, policymakers and airline safety advocates have taken notice of the dangerous loophole that OIRA’s interference has created. Last month, Captain Chelsey “Sully” Sullenberger—the airline pilot who achieved instant fame for his heroic actions in connection with the “Miracle on the Hudson” emergency landing in January of 2009—penned an op-ed for the Wall Street Journal that fiercely criticized the pilot fatigue rule for excluding cargo pilots. In the op-ed, Captain Sullenberger observed that the August UPS cargo plane crash “fits the profile of countless cargo operations,” though he noted that the whether pilot fatigue contributed to the crash still remains undetermined. It is nevertheless notable that OIRA’s slavish adherence to an inherently flawed tool such as cost-benefit analysis has placed the agency at odds with Captain Sullenberger on a matter of aviation safety.
In response, a bipartisan group of members of Congress have been forced to divert their attention and limited resources toward pursuing a legislative “fix” for the OIRA loophole. On Wednesday, these members introduced the Safe Skies Act, which would extend the FAA pilot fatigue rule to commercial cargo pilots. In other words, this bill seeks only to accomplish the exact same thing Congress sought to accomplish the first time when it directed the FAA to issue a pilot fatigue rule. The Constitution makes it clear that Congress shouldn’t need to tell the Executive Branch twice to implement the laws it has adopted. Especially at this point in history, Congress has far more important things to do. For example, it hasn’t passed a real budget in years. Nor has it addressed some of the most pressing policy challenges facing our country, such as the looming threat of climate change and reforming our broken immigration system.
On the odd occasion when Congress is able to overcome the bitter divisiveness afflicting Washington, DC, to actually pass legislation, agencies should be permitted to execute those laws faithfully—free of undue OIRA interference. Not only does OIRA interference leave the public inadequately protected against unreasonable risks; it serves to exacerbate the widespread dysfunction that has become a hallmark of Washington’s “politics as usual.”
James Goodwin, Senior Policy Analyst, Center for Progressive Reform. Bio.
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