In my previous newsletter, I highlighted some examples of regulations that fit this bill – i.e., that don’t seem designed to solve actual problems. Those examples were pulled from a paper originally published in 2016. Some readers have asked me if I have more recent examples of regulations like this, so I’ll highlight a couple of those in this newsletter.
That's interesting that the DEA's own ad law judge said that back in the 1980's, yet it didn't change how marijuana was regulated. It seems like this is a case where there were clear benefits from deregulation from Schedule I to some other, less regulated schedule, because of medical uses, but those benefits of deregulation were simply ignored. Very similar though - where an agency's own report/evidence contradicts the logic of its decision.
Since FAA is only requesting comments at this point, it’s possible that they will pull back (although I would be surprised). After that, if they make this a new rule, then it would be up to someone to challenge it in court, probably under the argument that the requirement is “arbitrary and capricious.” That’s the standard set in the Administrative Procedure Act and the primary route for reversing a rule.
Thanks—I’ve corrected the number of seats from 31 to 30. The other details you mention are great to know too, and I’ll let interested readers find the info in your comment.
(1) Technically public charter flights can have any number of passengers its just that public charter flights with 1-30 passengers fall under part 135 and those with 31 or more fall under part 121, so there are a bunch of part 121 public charter flights currently. There are a bunch of differences in the regulations between part 121 and 135, but the differences everyone seems to care and talk about is mandatory retirement ages and 1500 hours for second in command pilots. There is a mandatory 2 pilots per plane on anything about 9 passengers (and even among some below 9 passengers), part 121 requires both pilots to have 1500 hours, whereas part 135 only requires the pilot in command (PIC) to have 1,500 hours where as the second in command only needs 500 hours.
2)another bootlegger/baptist you are missing is actually against the regional carriers for EAS markets like Advanced Air, Contour, or Skywest Charter. Many of these flights used to be operated by 50 seater planes, but the airlines couldn’t source enough ATP pilots, so increasingly regional carriers are transitioning to public charter flights with 30 seats with 1 ATP pilot and one 500 hours pilot. There are airlines that offer only 9-seater part 135 planes that are opposed to the current public charter rules because Advanced Air, Contour, and Skywest Charter are winning EAS routes against them. Denver Air Connection (a key lime company) offers 9 seater planes and opposed the Skywest Charter application because they are competing against them offering inferior products out of Denver. Btw these 9 seaters are definitely less safe than public charter planes. I think they are also pushing to have public charters held to the same part 135/part 121 requirements as everyone else
Great find. This definitely seems to be like a Bootleggers and Baptist driven proposed rule. I wonder what the best way is to get something like this reversed. Would it have to be through the judiciary system? It seems like the consequences would be too diffused for that to be a realistic option....
That's interesting that the DEA's own ad law judge said that back in the 1980's, yet it didn't change how marijuana was regulated. It seems like this is a case where there were clear benefits from deregulation from Schedule I to some other, less regulated schedule, because of medical uses, but those benefits of deregulation were simply ignored. Very similar though - where an agency's own report/evidence contradicts the logic of its decision.
Since FAA is only requesting comments at this point, it’s possible that they will pull back (although I would be surprised). After that, if they make this a new rule, then it would be up to someone to challenge it in court, probably under the argument that the requirement is “arbitrary and capricious.” That’s the standard set in the Administrative Procedure Act and the primary route for reversing a rule.
Thanks—I’ve corrected the number of seats from 31 to 30. The other details you mention are great to know too, and I’ll let interested readers find the info in your comment.
Would appreciate listing recent publication references
Is the DEA’s scheduling of marijuana an example of regulation for safety with little or no supporting data (especially after their chief administrative law judge ruling it “unreasonable, arbitrary and capricious" https://reason.com/2023/09/06/35-years-ago-a-judge-said-marijuana-did-not-belong-in-schedule-i-hhs-finally-agrees/)?
A couple of small notes:
(1) Technically public charter flights can have any number of passengers its just that public charter flights with 1-30 passengers fall under part 135 and those with 31 or more fall under part 121, so there are a bunch of part 121 public charter flights currently. There are a bunch of differences in the regulations between part 121 and 135, but the differences everyone seems to care and talk about is mandatory retirement ages and 1500 hours for second in command pilots. There is a mandatory 2 pilots per plane on anything about 9 passengers (and even among some below 9 passengers), part 121 requires both pilots to have 1500 hours, whereas part 135 only requires the pilot in command (PIC) to have 1,500 hours where as the second in command only needs 500 hours.
2)another bootlegger/baptist you are missing is actually against the regional carriers for EAS markets like Advanced Air, Contour, or Skywest Charter. Many of these flights used to be operated by 50 seater planes, but the airlines couldn’t source enough ATP pilots, so increasingly regional carriers are transitioning to public charter flights with 30 seats with 1 ATP pilot and one 500 hours pilot. There are airlines that offer only 9-seater part 135 planes that are opposed to the current public charter rules because Advanced Air, Contour, and Skywest Charter are winning EAS routes against them. Denver Air Connection (a key lime company) offers 9 seater planes and opposed the Skywest Charter application because they are competing against them offering inferior products out of Denver. Btw these 9 seaters are definitely less safe than public charter planes. I think they are also pushing to have public charters held to the same part 135/part 121 requirements as everyone else
Great find. This definitely seems to be like a Bootleggers and Baptist driven proposed rule. I wonder what the best way is to get something like this reversed. Would it have to be through the judiciary system? It seems like the consequences would be too diffused for that to be a realistic option....