Legislative and Regulatory Issues on ALPA's Pilot-Partisan Agenda
By ALPA Staff
The following are among the hot-button issues on ALPA’s legislative and regulatory agenda that the Association’s elected leaders, members, and staff are working to advance in 2021 with the 117th Congress and the White House.
1. All-Cargo Security
As the cargo industry experiences increasing growth on a global scale, ALPA continues to advocate for the installation of intrusion-resistant flight deck doors on all-cargo aircraft. The Securing Cargo Flight Decks Act of 2021, which is expected to be introduced in the U.S. House of Representatives later this summer, will address the need for additional security on the flight deck for all-cargo aircraft.
Many aircraft that the cargo airline industry operates do not have flight deck doors, and operators continue to place nonflightcrew personnel on board these aircraft. In some cases, individuals traveling on all-cargo flights aren’t airline employees, and some are foreign nationals, which limits the ability to conduct a criminal history records check on these individuals. This can pose a significant risk to flight crews because they aren’t protected from these potential threats by a flight deck door. Any individual traveling on an all-cargo flight should be subject to the same level of security vetting and screening as flightcrew members, and all individuals requesting flight deck access should be subject to the same FAA regulations.
The Securing Cargo Flight Decks Act of 2021 would help close the safety and security gap that exists between cargo and passenger airlines. ALPA continues to remain vigilant, advocating for one level of safety and security for passenger and all-cargo operations.
2. Pilot Retirement Security
On May 5, the U.S. House of Representatives Ways and Means Committee reported out the Securing a Strong Retirement Act of 2021 (H.R. 2954) with unanimous support. Also referred to as SECURE 2.0, H.R. 2954 contains several important provisions to enhance retirement security for ALPA members, including language that increases 401(k) catch-up contributions from $6,500 to $10,000 annually at age 62, 63, and 64 and indexes the amount going forward for inflation. ALPA’s Government Affairs and Retirement & Insurance Departments worked for more than a year to have this provision included, earning recognition by Rep. Richard Neal (D-MA), the committee’s chair, in his opening statement.
SECURE 2.0 also gradually increases the mandatory distribution age for qualified retirement plans from 72 to 75 during the decade after enactment, allowing more time for retirement savings to continue to grow before withdrawal. The legislation further seeks to help pilots and other workers who are making student loan payments by allowing defined-contribution plans to treat employee student loan payments as employee plan contributions for purposes of employer-matching contributions. In addition, SECURE 2.0 includes several provisions aimed at providing more benefit distribution options for ALPA members.
While companion legislation has yet to be introduced in the Senate, ALPA’s Government Affairs team has remained in close contact with key staff regarding the Association’s interest in SECURE 2.0. Sens. Ben Cardin (D-MD) and Rob Portman (R-OH) have worked together for decades to increase retirement security and introduced their bipartisan retirement security legislation (S. 1770) on May 20. ALPA is optimistic that S. 1770 will serve as a catalyst for the Senate to move forward on retirement security legislation.
Although the timeline for consideration of SECURE 2.0 in the U.S. House of Representatives remains unclear, the Association is diligently monitoring the situation and remains well positioned to enhance retirement security for ALPA members.
3. FFDO Budget
Following the terrorist attacks on Sept. 11, 2001, Congress passed the Arming Pilots Against Terrorism Act (APATA), which was included in the Homeland Security Act of 2002. The law directed the Transportation Security Administration (TSA) to develop and maintain the Federal Flight Deck Officer (FFDO) program as an additional layer of airline security. Under this program, trained and deputized airline pilots are authorized by the TSA to use force in defense of acts of criminal violence or air piracy to gain control of their aircraft.
FFDOs are required to undergo various training sessions throughout their service, including semiannual weapons qualification, recurrent training programs, and additional training and testing to maintain their deputization, which according to APATA is at no cost to the air carrier or pilot. ALPA continues to advocate for increased availability of venues for FFDO training.
Although the FFDO program is authorized under law, it still must be funded each year by the U.S. House of Representatives and Senate. While the annual appropriations process was delayed for a variety of reasons this year, ALPA’s Government Affairs team engaged early, and there’s still very strong support for the FFDO program on Capitol Hill. Since most Members of Congress fly to and from Washington, D.C., on a weekly basis, they value this added layer of security and greatly respect the pilots who volunteer their time to participate and keep U.S. skies safe.
U.S. President Joe Biden’s budget proposed a funding level for the FFDO program of $20,263,000, an increase over last year’s funding of $20,012,000. The House Committee on Appropriations’ Homeland Security Subcommittee released its fiscal year (FY) 2022 bill on June 30 and provided $20,260,000 for the FFDO program. This is $3,000 less than the president’s budget and $248,000 more than what was enacted in FY2021. As this issue goes to press, the Senate Committee on Appropriations has yet to release its FY2022 Homeland Security bill. ALPA is advocating for an increase in the FFDO budget to allow for additional training opportunities and expand the reach of the FFDO program.
4. Support for Workers and Unions
On April 26, U.S. President Joe Biden signed an Executive Order on Worker Organizing and Empowerment that takes an unprecedented step to promote union density across the U.S. Driven by a recognition that “economic change in the United States and globally, technological developments, and the failure to modernize federal organizing and labor-management relations laws to respond appropriately to the reality found in American workplaces have made worker organizing exceedingly difficult,” the Executive Order creates a task force to evaluate and promote federal policies, practices, and programs that could be used to support worker power, worker organizing, and collective bargaining. In announcing the Executive Order, Biden noted the steady decline in union density and workers’ voice on the job in the United States, which has had a host of negative consequences for American workers and the economy, including the weakening and shrinking of America’s middle class.
In June, Capt. Joe DePete, ALPA’s president, wrote to U.S. Vice President Kamala Harris and Department of Labor Secretary Marty Walsh, the task force chairs, as well as Department of Transportation Secretary Pete Buttigieg and Department of Homeland Security Secretary Alejandro Mayorkas, task force members, offering ALPA policy recommendations. The Association called for the swift confirmation of the president’s nominee for the National Mediation Board (NMB) as essential to facilitate effective labor-management relations. The Association also suggested that the NMB should make administrative rule changes to reverse the antiworker decertification rule that’s inconsistent with employee rights under the Railway Labor Act and institute other reforms, such as implementing “card check,” electronic balloting procedures, and expedited review and resolution of employer interference in organizing drives.
DePete conveyed that robust union density of the pilot workforce has societal benefits and that ALPA is committed to guaranteeing a diverse aviation workforce, that a strong pilot pipeline will continue to be a bellwether for good middle-class union jobs, and that U.S. pilots are strong advocates for raising the bar for aviation safety and security for workers and the flying public worldwide.
5. ALPA’s Bankruptcy Reform Proposal
Since deregulation in the late 1970s, the airline industry has struggled with maintaining stability, as destructive competition, price and capacity wars, and recessions have undermined the careers of airline pilots. However, airlines have also grossly abused the bankruptcy process with the consent of the courts.
Today, airline employees are inappropriately subject to Section 1113 of Chapter 11 of the bankruptcy code, which allows airlines to seek court permission to dismiss collective bargaining agreements and mandate inferior pay, benefits, and working conditions during a business restructuring. As just one example, after 9/11, 50 air carriers sought protection from the bankruptcy code, squeezing $83.5 billion in wage and benefit reductions, the dissolution of nearly every defined-benefit pension plan, and long-term employee pay losses. These draconian cuts were grossly disproportionate and didn’t reflect economic circumstances. The misapplied bankruptcy code has been a boon to airline managements, as they’ve protected their compensation on the backs of employees during difficult economic times.
ALPA, with the support of the Senate and U.S. House of Representatives Judiciary Committees chairs, has proposed an alternative: airline employee collective bargaining agreements should not be subject to bankruptcy code at all. Currently, the bankruptcy code states that the courts shouldn’t change the wages or working conditions of employees “subject to the Railway Labor Act.” But the courts have only applied this exemption to railroad employees and not airline pilots. The Protecting Employees and Retirees in Business Bankruptcies Act, led by Sen. Dick Durbin (D-IL), the Senate Judiciary Committee chair, and Rep. Jerrold Nadler (D-NY), the House Judiciary Committee chair, would fix this by clarifying that airline employees’ collective bargaining agreements aren’t to be altered in bankruptcy. This would allow pilots and their unions to negotiate, through Section 6 of the Railway Labor Act, any relief employees deem appropriate during an airline bankruptcy rather than have it dictated to them. If passed into law, this bill would likely save pilots’ and other airline employees’ wages and benefits while ensuring that they have a direct say in any restructuring.
6. The Saracini Enhanced Aviation Safety Act of 2021
The aviation industry has witnessed an unprecedented increase in passenger-related disturbances on board airliners. According to recent reports, the FAA received more than 3,100 reports of unruly and violent passenger behavior between January and June of this year. This dramatic uptick in safety and security threats is further justification for having secondary flight deck barriers on all passenger airliners.
To correct an oversight in the post-9/11 requirement for hardened flight deck doors, Congress mandated in 2018 the installation of secondary flight deck barriers on all newly manufactured passenger aircraft to provide an additional layer of security for the flight deck.
Bipartisan and bicameral legislation has recently been introduced in Congress to mandate the installation of secondary flight deck barriers on all existing aircraft, providing for the retrofit of all passenger aircraft. H.R. 911 and S. 911, the Saracini Enhanced Aviation Safety Act of 2021, will ensure a safe and secure flight deck during an unprecedented level of violent passenger behavior on board passenger airliners.
The Saracini Enhanced Aviation Safety Act is named in memory of Capt. Victor Saracini (United), who tragically lost his life on 9/11 while piloting United Flight 175. ALPA has worked with his widow, Ellen Saracini, to advance aviation security measures to require that all passenger airliners are equipped with secondary flight deck barriers.
ALPA launched a Call to Action so that pilots could urge their lawmakers to support the Saracini Enhanced Aviation Safety Act.
7. Fair and Open Skies Act Reintroduced
On May 12, the Fair and Open Skies Act (H.R. 3095) was reintroduced in the 117th Congress with an expanded list of nine bipartisan original co-sponsors. The legislation is identical to the bill introduced in the 116th Congress, which successfully garnered 156 co-sponsors before COVID-19 swept over the world.
The impetus behind this legislation goes back to 2013 when Norwegian Air International (NAI) attempted to gain access to the U.S. market with a flag-of-convenience scheme that would substantially disadvantage U.S. airlines and ALPA pilots. Airlines that use flag-of-convenience business models operate in a location other than their home countries to take advantage of legal and regulatory loopholes to evade labor, tax, and safety laws. By shopping the globe for the most permissive laws and gaming the traditional system of employment, these foreign carriers’ operations are detrimental to U.S. airlines, workers, and the piloting profession.
If enacted, H.R 3095 would augment the U.S. Department of Transportation’s powers under Title 49 to regulate unfair business practices associated with flag-of-convenience air carriers and the related erosion of labor rights that stem from “forum shopping” or labor arbitrage.
In March, Norse Atlantic Airways announced that it was seeking a foreign air carrier permit to operate flights to the United States to compete in the highly competitive transatlantic marketplace. While the specific business model of Norse is unclear, it’s likely to be a similar business model to NAI’s flag-of-convenience scheme as the former CEO of NAI is a primary investor in this new airline.
ALPA recently launched a Call to Action so that pilots could urge their lawmakers to support the Fair and Open Skies Act. A Senate companion bill to H.R. 3095 is expected to be introduced soon.
8. ALPA’s International Aviation Agenda
As outlined in ALPA’s 2021 policy white paper, “Battling the Pandemic, Rebuilding Our Economy, and Connecting the World,” the Association has taken numerous opportunities to introduce the Biden administration to ALPA’s international aviation priorities.
Capt. Joe DePete, ALPA’s president, has conveyed that Biden’s administration has a unique opportunity to empower the U.S. airline industry and its workers to successfully compete in the global marketplace. One such opportunity is the Department of Transportation’s (DOT) mandate to carry out a public-interest test regarding foreign air carrier permit applications.
Accordingly, ALPA has urged the DOT and the Department of State to prioritize labor standards when formulating international aviation policy and negotiating international air service agreements. The DOT has important discretionary authority to promote labor interests as part of its public-interest determinations in foreign air carrier licensing and approval of joint ventures between U.S. and foreign airlines, which are now a critical part of the international aviation landscape.
ALPA advocates that the DOT should impose permit conditions that protect the public interest, prevent flags of convenience, and give meaning and effect to labor clauses in international aviation agreements. Importantly, the DOT should also prioritize U.S. workers when considering whether it’s in the public interest to grant antitrust immunity to proposed joint ventures between U.S. and foreign airlines, and it should increase its scrutiny and oversight of such joint ventures to ensure that any grant of immunity increases U.S. aviation jobs and U.S. airlines’ relative share of flying and growth in international markets.
ALPA is advocating that the Fly America Act be included in the recent Executive Order on Ensuring the Future Is Made in All of America by All of America’s Workers. The Fly America Act provides an important preference that U.S. government-financed transportation be provided by U.S. air carriers.
Like other “Buy America” provisions, Fly America promotes U.S. aviation jobs and enhances the competitiveness of U.S. airlines versus foreign airlines. Unfortunately, the General Services Administration has allowed foreign carriers to secure Fly America contracts through marketing agreements with U.S. air carriers that provide little to no benefit to U.S. airline workers.
Given the importance of the U.S. aviation industry and the high-quality union jobs that are associated with it, ALPA has conveyed to the administration that the Buy America Executive Order should encompass these services and U.S. airline workers and to clarify that the Executive Order expressly includes the Fly America program.
ALPA has also sent proposals to the administration to reform the U.S. visa process. Over the past several years, some U.S. airlines have taken advantage of the U.S. visa process to perpetuate pilot wage rates that are insufficient to attract qualified U.S. pilots. There is and has been no U.S. pilot shortage during this time, yet U.S. air carriers have nevertheless sought and obtained E-3 and H-1B labor certifications for approximately 1,500 pilot positions since 2017. H-1B and E-3 visas are specifically reserved for “specialty occupations”—a statutory classification for which the U.S. Citizenship and Immigration Services Administrative Appeals Office has consistently concluded that airline pilot jobs do not qualify.
1. Secondary Flight Deck Barriers
On Oct. 5, 2018, Congress enacted P.L 115-254. Section 336 of P.L. 115-254 requires that “Not later than one year after the date of the enactment of this act, the administrator of the Federal Aviation Administration shall issue an order requiring installation of a secondary [flight deck] barrier on each new aircraft that is manufactured for delivery to a passenger air carrier in the United States operating under the provisions of Part 121 of Title 14, Code of Federal Regulations.”
Nearly three years since the passage of that law, 20 years since the 9/11 attacks, and approximately 17 months since the completion of the Aviation Rulemaking Advisory Committee’s work on the barrier’s implementation standard, that congressional mandate has gone unfilled. However, there’s news from the Office of Management and Budget’s (OMB) recently published “Administration’s Spring Unified Agenda of Regulatory and Deregulatory Actions” report released in June. The OMB report indicates the FAA’s intent to proceed to a notice of proposed rulemaking for secondary flight deck barriers on newly manufactured aircraft this fall.
In response, ALPA encouraged congressional leaders, including the original co-sponsors of S. 911 and H.R. 911, Sen. Pat Toomey (R-PA), Sen. Bob Casey (D-PA), Rep. Brian Fitzpatrick (R-PA-1) and Rep. Josh Gottheimer (D-NJ-5), to send a letter to Department of Transportation (DOT) Secretary Pete Buttigieg expressing their concerns regarding the delay and insisting that the DOT act swiftly to implement the law as intended. Capt. Joe DePete, ALPA’s president, has sent similar correspondence to the DOT, urging action on a final rule on secondary barriers.
ALPA will continue to work with the FAA and Congress to ensure that the FAA implements the secondary flight deck barrier mandate on all newly manufactured commercial aircraft in the United States, as required by Congress.
2. Women in Aviation
For many years, ALPA has been committed to inspiring the next generation of airline pilots through outreach efforts—not only for those who are already interested in the profession, but also those who’ve never considered it possible.
The Association continues to tirelessly advocate for the inclusion of women in the aviation industry. ALPA advocated for Section 612 of the FAA Reauthorization of 2018, establishing the creation of the Women in Aviation Advisory Board, which has as a goal developing and providing recommendations to the FAA to explore and foster opportunities encouraging women to pursue an aviation career.
F/O Kandy Bernskoetter (FedEx Express), currently serves on the board, advocating for maintaining professional piloting standards while seeking ways to expand access to the aviation industry. The advisory board will provide written recommendations outlining a comprehensive plan to the FAA, with its report due to Congress by October of this year.
3. Gender-Neutral Language Recommendations
During the June Drone Advisory Committee (DAC) meeting, Capt. Joe DePete, ALPA’s president, joined other committee members in sending a package of gender-neutral language recommendations for the drone community to the FAA. DePete noted, “The time is now to make these needed changes and for the drone community to migrate away from the terminology that has been in use.”
F/O Camila Turrieta (JetBlue), chair of the ALPA President’s Committee for Diversity & Inclusion, was a member of the DAC’s Gender-Neutral Task Group and provided leadership in coordinating the development of a style guide and gender-specific replacement language. The task group tackled the traditional gender-specific approach to writing documents and regulations for drones, which will likely be applied by the FAA across all aviation topics.
The DAC is a 35-member advisory committee that’s assisting the FAA in creating a safe framework for drone operations in the national airspace system.