DC Circuit Ignores Economics in Ordering FAA to Reconsider Denial of Rulemaking on Seat Pitch.

On July 28, the DC Circuit ruled on the denial by the FAA of a request by a non-profit to promulgate rules governing the minimum requirements for seat sizes and spacing  (seat pitch) on passenger aircraft.  It used colorful language that implied some sympathy with the petitioner's arguments, and rejected the FAA's argument that the case should be dismissed.  However, it also rejected the petitioners' request that FAA be required to institute a rulemaking proceeding.  It is unlikely that, in the end, the court will require the FAA to regulate seat size and spacing.  The Court did not, as some alarmist headlines proclaimed, order the FAA "to solve the case of the incredible shrinking airline seat."

The petition argued that over 20 years, seat pitch had decline from 35 inches to 31, or even, in some cases, 28 inches, that seats had narrowed from 18 1/2 to 17 inches, and that passengers had grown heavier.  The FAA did not argue about passenger weight -- in fact, over 20 years, average weights had increased by 15-17 lbs.  However , it did claim that the petitioners' concerns did not warrant action because the issues raised related to passenger health and comfort, and did not raise an immediate safety or security concern.  It noted that seat pitch numbers were not directly comparable with earlier data because modern, thinner seats at lower seat pitch provided more space than older seats at higher pitch, and that the emergency evacuation tests it had conducted showed that reduced seat pitch did not affect safety.

However, the court found that the FAA did not provide acceptable evidence on evacuation tests because it had relied on confidential, non-public information.  The Agency had, therefore, relied materially on information it had not disclosed and had pointed to that information as the basis for affirmance.  It remanded the case to the FAA "for a properly reasoned disposition of the petition's safety concerns".  However, it did not require the Agency to undertake a rulemaking proceeding.

Thus, the remaining work on this case is basically a lawyer's job -- write a better opinion.  Put some emergency evacuation evidence into the public record.  Emphasize that narrower seats invalidate comparison of historic seat pitch changes.  And make the economic argument that the petitioner's proposed rule would reduce seats on the aircraft, requiring higher prices for the remaining seats.  This would, in turn, divert some passengers to lower cost forms of transportation which have poorer safety records than airlines.

An aside -- in researching I found a very useful aviation website.  Seat Guru has seat maps, seat pitch and width,by aircraft type for almost all the major airlines in the world.