Legislative Issues on ALPA's Pilot Partisan Agenda

By ALPA Staff

The following are among the hot-button issues on ALPA’s legislative agenda that the Association’s elected leaders, members, and staff are working to address in 2022 with the 117th Congress and the White House.

1. Federal Flight Deck Officer Program

The Federal Flight Deck Officer (FFDO) program is a critical component of U.S. aviation security protocols and must be appropriately funded.

The current proposed budget for the program is $21,098,000. An increase of $9.5 million is necessary in the fiscal year 2023 (FY23) Homeland Security appropriations bill to address a backlog of candidates, expand training opportunities, and meet statutory obligations as directed by Congress.

The budget for the program hasn’t increased at a rate to keep up with inflation, nor the added financial responsibilities such as crewmember self-defense training, additional necessary recurrent training facilities as Congress intended, updated instructor contracts, ammunition costs, and additional congressionally mandated program enhancements. Had the baseline budget from 2004 of $25 million continued to present day, properly adjusted for inflation, the FFDO budget would be approximately $36 million.

Since initial training was halted due to the pandemic in 2020 and follow-on funding shortfalls, a growing backlog of candidates for initial training—2,800-plus—began to accrue. At the beginning of this year, Congress was still negotiating the FY22 appropriations bills. Because initial training for FFDOs needs to be funded a year in advance to allow for instructor availability, it was important to get an increase in the FY22 omnibus bill to allow for initial training to resume.

ALPA’s Government Affairs Department, along with U.S. House members Reps. Jake Ellzey (R-TX) and Kai Kahele (D-HI), who’s also an ALPA member, organized a bipartisan sign-on letter that garnered 40 signatures to request a modest increase of $5 million in funding for the program to restart initial training and fund a full-time recurrent training facility in Atlanta, Ga. However, the funding level for the FFDO program ultimately wasn’t increased so it seemed unlikely that initial training could be restarted until FY24 (FY23 initial training is funded in the FY22 bill).

Fortunately, in May, $2.2 million was transferred to the FFDO program from the Federal Air Marshal budget. This was due to the engagement of many members of Congress at ALPA’s request who pressed Transportation Security Administration (TSA) Administrator David Pekoske on his support for the program and the necessity to restart initial training. Rep. John Rutherford (R-FL) had a discussion with the TSA administrator during a TSA budget hearing. Pekoske noted that the FFDO program “is incredibly valuable.” Rep. Jeff Van Drew (R-NJ) also spoke with Pekoske at another hearing during which the administrator committed to “conducting a review of the FFDO program over the next several months to find ways to make it even stronger. I’m committed to make it as effective as we can.”

Approximately $500,000 of the $2.2 million went directly to pay for salary shortfalls as the current budget doesn’t provide enough money to pay for all of the FFDO program’s existing salary obligations. That left approximately $1.7 million to put toward FFDO initial training in FY22 and FY23. It’s expected that seven initial training classes will take place before September 30 and another 15 classes will convene in FY23. This is approximately half the number of classes that normally take place in a fiscal year, but the requirement to prefund initial training has limited what can be done.

During ALPA’s Legislative Summit in June, members of Congress were urged to support an increase of $9.6 million for the FFDO program. More than 140 meetings were held during the summit to educate members of Congress about the importance of the FFDO program and appropriate federal funding.

When the House Homeland Security Appropriations Subcommittee released its FY23 bill, the FFDO number was unfortunately below President Biden’s budget request. This was highly disappointing to ALPA and the many members of Congress who submitted requests to increase funding for the program by almost $10 million. ALPA’s Government Affairs staff immediately partnered with Rep. Guy Reschenthaler (R-PA), who introduced an amendment to increase the funding level by $9.6 million. A majority agreed to half the amount ALPA requested and included an increase of $4.2 million, with $3 million going to initial training and $1.2 million for the recurrent training facility in Georgia, a significant win and major increase over previous years.

The FY23 appropriations process is currently stalled in the Senate. It’s expected there will be a continuing resolution to fund the government after September 30 and through the 2022 election before both parties and both chambers can come together and pass a full-year spending package. Future funding for the FFDO program is on hold until then. In the meantime, ALPA is working to increase FFDO funding to meet the needs of this important program.

While much work is still needed to achieve a functioning level of funding for the FFDO program, ALPA has succeeded in educating and reminding members of Congress about the importance of this program and the urgent need to increase funding.

2. Cabin Air Quality

Significant efforts continue on Capitol Hill to address the issue of cabin air quality in aviation, ensuring the cleanest and safest air quality on board airliners. Recently, bipartisan legislation was introduced in both chambers of Congress to address the issue of identifying the potential risks associated with hazardous cabin air quality and the impact of exposure of such potentially toxic fumes on flight crews and the flying public.

As introduced in both the U.S. House and Senate, including companion language, the Cabin Air Safety Act of 2022 (1) requires training for toxic smoke and fume events to protect passengers and crewmembers, (2) requires the FAA to record and maintain a records database of fume events, accessible by the public, (3) authorizes the FAA to investigate fume events, and (4) requires the installation of air-quality-monitoring equipment to alert the crew to an onboard fume event.

ALPA is committed to ensuring the safest work environment for its members and will continue to advocate so that legislation introduced in Congress adequately addresses the potential risks associated with exposure to hazardous materials, ensuring that cabin air is the cleanest and safest it can be.

“This measure will protect the flying public and crew from toxic airplane air. Our bill would mandate thorough investigation of cabin air quality reports, proper training and resources for airline crews, and installation of air-quality-monitoring equipment and detectors on commercial flights to ensure the public and crewmembers are protected from these harmful fumes, smoke, or other contaminants.”—Sen. Richard Blumenthal (D-CT), Member of the Senate Committee on Commerce, Science, and Transportation

3. Flags of Convenience

ALPA is leading the charge in Congress to protect U.S. airline employees from unfair foreign competition. As part of this effort, the Association is working with Congress through the appropriations process to require that the Department of Transportation (DOT) examine the labor standards of new foreign air carriers seeking entry into the U.S. market.

In the U.S. House, ALPA supported an amendment led by Rep. Kai Kahele (D-HI) that would cut off funding for the DOT’s foreign air carrier licensing office unless the agency ensures that prospective foreign airlines comply with public-interest standards related to employee interests. Within the last several years, a series of foreign airlines seeking access to the U.S. have misclassified or otherwise sought to undermine their employees’ rights. Since 1980, Congress has tasked the DOT with considering the effect such foreign airlines may have on U.S. workers, but the agency has failed to use this authority.

Kahele’s provision—cosponsored by Reps. Drew Ferguson (R-GA), Jack Bergman (R-MI), and Rodney Davis (R-IL)—passed in a package of amendments on the House floor in a block vote 336–90. It was one of only five bipartisan transportation amendments added to a broader appropriations bill. The so-called minibus appropriations bill—H.R. 8924, consisting of six fiscal year 2023 federal funding bills—included funding for transportation programs. The overall funding package passed on July 20.

The Senate has introduced its funding package, which currently doesn’t include the provision. The Association expects Congress to seek to resolve differences in the House and Senate bills after the midterms. In the interim, ALPA and its labor partners are pushing for the labor protective provision in any final package.

“Letting foreign airlines skirt regulations or labor standards in their home country only puts American workers and companies at a disadvantage. If a foreign air carrier wants to operate within the United States, then it needs to play by the same rules we require of our airlines or it shouldn’t be permitted to operate within our borders.”—Rep. Rodney Davis (R-IL), Ranking Member of the House Highways and Transit Subcommittee

4. Secondary Flight Deck Barriers

ALPA continues to push for secondary flight deck barriers on airliners and intrusion-resistant barriers on cargo aircraft.

The FAA Reauthorization Act of 2018 required the installation of a secondary barrier on all newly manufactured passenger airliners. After years of inaction, the FAA has finally issued a proposed rule that would require the installation of secondary barriers on those airliners to protect the flight deck. ALPA has long advocated for this additional safety feature.

Last year, the Biden-Harris administration added secondary barriers to its priority rulemaking list. The Administrative Procedures Act requires the FAA to follow the rulemaking process when implementing this mandate that Congress included in the 2018 FAA reauthorization.

In addition, ALPA continues to advocate for the inclusion of additional safety features for all-cargo operations in the United States. Cargo flights operate in the same airspace as passenger-carrying airliners and continue to be targets of foreign threats. Under current law, insufficient vetting procedures and the lack of any type of door to secure the flight deck create a significant security risk for both the flight crew and individuals on the ground.

5. 5G Spectrum Issues

Aviation interests and telecommunications company interests collided toward the end of 2021 when AT&T and Verizon began turning on their 5G spectrum towers. For years, aviation stakeholders, including the Department of Transportation, had warned the Federal Communications Commission that absent similar global 5G deployment mitigations, U.S. radio altimeters would be unreliable and cause serious safety concerns for the airline industry.

The National Telecommunications Information Administration process to address these concerns failed, resulting in thousands of notices to air missions and several airworthiness directives and alternative means of compliance being issued as a Band-Aid while stakeholders worked toward a more permanent solution.

While telecom companies have temporarily adopted some effective mitigations, the aviation industry must retrofit radio altimeters with filters as manufacturers develop next-generation altimeters. The mitigations in place aren’t permanent, and subjecting aviation safety to the business plans of telecom companies isn’t an acceptable outcome.

ALPA will continue to work with telecom companies and the federal government, including members of Congress, to find a permanent solution and to ensure that aviation safety isn’t compromised going forward.

6. Sustainable Aviation Fuels

On August 16, President Biden signed the Inflation Reduction Act, which included several provisions that will reduce the price of sustainable aviation fuel (SAF), a long-standing priority of ALPA. The SAF tax credit will have the most immediate impact on the price of SAF, allowing the airline industry to buy more SAF and reduce emissions.

The SAF tax credit will be available for two years and applies to SAF only. Under the provisions of the Inflation Reduction Act, a fuel that reduces lifecycle emissions by 50 percent would receive a $1.25 per gallon tax credit. Each additional 1 percent demonstrated reduction provides another one cent credit for a maximum of $1.75. The SAF-specific tax credit expires on Dec. 31, 2024. SAF would then qualify for the clean fuel production credit for three years from 2025 to 2027 at up to $1.75.

While the Inflation Reduction Act is different than the ALPA-endorsed Sustainable Skies Act, the SAF credit still sends a strong signal to SAF blenders to increase production, making SAF more affordable for airlines to purchase as the industry strives to meet emissions reductions required by the International Civil Aviation Organization’s emissions-reduction agreement, the Carbon Offsetting and Reduction Scheme for International Aviation.

Other provisions in the act are a $245 million grant program for construction of renewable fuel facilities and a tax credit for the production of hydrogen fuel. ALPA has been the leading labor voice on sustainable aviation fuels for more than a decade.

7. Pilot Retirement Age

On July 25, legislation was introduced in the U.S. House and Senate to raise the mandatory retirement age for Federal Aviation Regulation Part 121 airline pilots. H.R. 8513 and S. 4607 were introduced by Rep. Chip Roy (R-TX) and Sen. Lindsey Graham (R-SC), respectively. In statements, Graham and Roy inaccurately blamed the cause for summer travel delays on a fictitious “pilot shortage,” which is why they introduced the legislation. The truth about the difficulties airlines have been experiencing is related to pilot scheduling and a training backlog caused by airlines not being prepared for the increased demand in air travel.

The decrease in air travel brought about by COVID-19 sidelined or altered the flying of many pilots during the pandemic. As the demand for air travel began to increase and operations ramped back up, some pilots needed to be retrained on their original aircraft type. Others who had been placed on inactive status also needed to get current again, necessitating flight simulator time on their specific aircraft type and check rides. This has resulted in a temporary logjam in training. Combined with near-record hiring this year, preparing pilots to fly the line has been more challenging.

Airlines planned a summer schedule assuming that these new hires would be available, but the bottleneck associated with getting pilots certified on their specific aircraft type has forced some airlines to cancel many flights through the fall. They’ve simply miscalculated and overscheduled routes. This mismanagement isn’t solely related to pilot scheduling. Systemwide disregard of appropriately addressing workforce issues continues to wreak havoc on air travel.

Raising the retirement age won’t fix the current training situation, and it certainly won’t help regional airlines, whose trade association supports both bills. Most pilots leave regional airlines for legacy carriers or other opportunities before they near the mandatory retirement age due to better work-life balance, career progression, and higher wages.

This bill is shortsighted and introduces unnecessary risk into the system. The European Union Aviation Safety Agency conducted a study in 2017 that determined pilot retirement age shouldn’t be changed due to cognitive decline and increased health risks such as cardiovascular issues and diabetes.

8. The Airline Deregulation Act

In drafting the Airline Deregulation Act of 1978, Congress clearly intended to limit the size and scope of the government’s ability to occupy the entire field of aviation. This landmark legislation included an express preemption provision prohibiting the enforcement of any state “law or regulation having the force and effect relating to the prices, routes, and services of an air carrier.” In passing this legislation, Congress acted to ensure a narrowly tailored regulatory framework, balancing the need for uniformity within the nation’s aviation system while maintaining a state’s rights to provide adequate support to its citizens.

Since that time, multiple states have passed a series of paid sick-leave, family leave, and meal/rest-break laws. State legislatures have consistently acted to ensure that their employees receive adequate rest, benefits, and protections within their workplace. Currently, California’s Labor Code § 512(a) states, “An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes…. An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes.”

Recently, airlines unsuccessfully challenged several state employee benefit laws, including California Labor Code § 512, based on the misguided application of federal field preemption. Field preemption occurs when Congress manifests its intent to regulate an entire field. This happens when either (1) legislation is so all-encompassing that states can provide no supplemental regulations or (2) where the federal interest is overly dominant.

For state action to be preempted under the Airline Deregulation Act of 1978, a claim must seek to enforce a state law “related to a price, route, or service of an air carrier.” The Supreme Court has provided important guidance on the meaning of that provision in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), and Rowe v. New Hampshire Motor Transport Association, 552 U.S. 364 (2008). A claim relates to rates, routes, or services if the claim has a connection with, or reference to, airline rates, routes, or services.

In challenging California Labor Code § 512, the Ninth Circuit Court of Appeals held that the Airline Deregulation Act doesn’t preempt California-mandated meal/rest breaks for airline employees. Rejecting the airlines’ claims, the court in Bernstein v. Virgin America, Inc. held that Congress clearly intended to occupy the field of aviation limited to “aviation safety.” Moreover, California’s meal and rest-break requirements have no direct bearing on aviation safety. In fact, state-mandated meal/rest breaks only enhance aviation safety. Therefore, airlines must provide flight attendants meal and rest breaks during their scheduled work hours.

Congress has repeatedly denied attempts by airlines to expand the act beyond Congress’s original intent. Airlines have continually pushed back at the federal level, and in the courts, claiming that the Airline Deregulation Act of 1978 precludes states from enforcing, and therefore limiting, employee’s ability to avail themselves to state-mandated meal/rest breaks and paid sick-leave laws. Aviation unions and, more importantly, the Supreme Court flatly reject this argument.

The Airline Deregulation Act of 1978 maintains the important tenets of federalism, providing a uniform set of regulations for maintaining the national airspace while recognizing the delicate balance between those regulations and a state’s rights. ALPA believes that any attempts to expand the act are ill conceived. Under this misguided notion and very expansive view of preemption, the Airline Deregulation Act of 1978 will envelope many, if not all, state laws impacting the health and safety of individuals across the country.

9. Building a Secure Retirement

Congress continues to work on legislation to help workers retire more securely. The U.S. House passed the Securing a Strong Retirement Act with a hugely bipartisan vote of 414–5. Also called Secure 2.0, the legislation includes significant gains for ALPA members.

ALPA successfully lobbied to increase catch-up contributions to $10,000 (indexed) for those aged 62 to 64. Other significant wins include increasing the mandatory distribution age from 72 to 75 over the next decade, indexing catch-up IRA contributions to inflation, and treating student-loan payments as matching contributions for the purpose of determining employer contribution amounts to a defined contribution plan. Secure 2.0 would also eliminate certain barriers to offering lifetime income annuities as a retirement plan investment option.

The Senate is proposing similar legislation, the Enhancing American Retirement Now (EARN) Act, which continues to move forward. In June, the Senate Finance Committee held an open executive session to consider the framework of the legislation. While the Senate bill hasn’t been officially introduced, ALPA anticipate that the EARN Act will include many of the same propilot initiatives included in the House counterpart bill. It’s anticipated that Congress will combine and pass the legislation this December.

This article was originally published in the September 2022 issue of Air Line Pilot.

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