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.

American fights back about Groundings

After American received such tremendous adverse publicity about the grounding of its MD-80 fleet last month, the truth is starting to come out -- the real culprit is the FAA, which change long-standing policy because of its fear of congressional criticism.

We all know what happened -- immediately prior to the American episode, the FAA was criticized by Congress because it allowed Southwest Airlines to keep flying 47 airplanes after missing FAA maintenance schedule deadlines for inspections of cracks in the skin. These claims were brought to the attention of the head office by two "whistleblower" FAA employees. See "Records: Southwest Airlines flew 'unsafe' planes.” The FAA proposed to fine Southwest $10.2 million. These issues were subject to a hearing before the House Transportation and Infrastructure Committee on April 3, 2008, at which there was substantial testimony that the FAA Principal Maintenance Inspector had too cozy a relationship with Southwest, and allow them to continue to operate the airplanes when, under FAA rules, they should have been grounded and inspected.

Having been once burned, the FAA determined to conduct "instant inspections" of a percentage of Airworthiness Directives directed to other airlines. In the case of American, they found that there were certain wires in the wheel wells of MD-80s that were not tied exactly is required by an Airworthiness Directive that have been issued in 2006. American was immediately forced to ground and inspect its MD-80s, inconveniencing 300,000 passengers. Under normal circumstances, the FAA and American would have worked out a schedule for inspections that would have allowed the airplanes to continue to operate and passengers to reach their destinations. But this is not possible in the politically charged environment after FAA was criticized for its alleged laxness in dealing with Southwest. It is not clear that the FAA ordered American to ground the fleet, but, since Southwest had just been fined $10.2 million, American really had no other choice in that environment.

In recent weeks, articles have begun appearing implicating the FAA for the tremendous disservice done to passengers by its failure to act reasonably in the case of American. On April 13, an article in the Fort Worth Star-Telegram noted that the FAA had been aware of the wiring problem since 2003, but had shown no urgency in adopting the Airworthiness Directive and in implementing a compliance schedule. American, in fact, had made the corrections to the wiring after Boeing issued a service bulletin, and long before the effective date of the Airworthiness Directive. Americans problem was that the Administrative Directive required modification of the wiring in a slightly different manner than had been required by Boeing in the service bulletin.

On April 19, a New York Times article entitled “Airline Faults Shifting Rules About Safety” noted American's concern that the agency was overreacting. It said:

But now the airline, which faces the prospect of more groundings in coming weeks as the Federal Aviation Administration broadens its sweep of inspections, says the FAA deserves much of the blame.

The agency has unfairly changed rules for how airlines must comply with safety orders, called airworthiness directives, and is making unreasonable demands about how much interpretation is allowed, according to engineers at American’s huge maintenance base here.

“We’re confused and frustrated,” said Greg A. Magnuson, lead engineer for MD-80 airframe and systems engineering. The F.A.A. has always given the company “latitude,” he said, for complying with directives by making small variations to resolve any contradictions or ambiguities. And now, those changes, which may be as simple as putting a bolt through a hole so it is facing forward rather than backward, are being highly scrutinized.

Finally, a Wall Street Journal article May 2, "FAA Takes Heat for Groundings", reports that American is set to allege in a report to DOT that its recent groundings could have been avoided if a tentative agreement between the airline and local FAA officials hadn't been reversed by headquarters. American will claim that FAA headquarters overruled local agency managers and insisted on a tougher enforcement plan literally overnight. Obviously, FAA officials in Washington have been spooked by the criticism it received over the Southwest matter, and wanted to avoid any further possibility that they could be attacked by Congress again. Rather than showing backbone, the FAA required the 300,000 passengers be severely inconvenienced.

We can now expect that the FAA will react with outrage against American, and defend itself by attacking American's compliance with the Airworthiness Directive. However, the tide is begun to turn, and the general public will recognize FAA's actions for what they were -- a cowardly bureaucratic response to avoid congressional criticism.