December 2010

Notice of Proposed Rulemaking Addresses Flight Crew Duty and Rest Requirements in Part 121 Operations

Holland & Knight Newsletter
Judy R. Nemsick | Marc L. Antonecchia

The issue of pilot fatigue has been on the NTSB’s “Most Wanted List of Transportation Safety Improvements” since 1990.1 In a June 15, 2009 “Call to Action,” the FAA announced that it would “start rulemaking to rewrite the rules for pilot flight and duty time to incorporate recent scientific research about the factors that lead to fatigue.”2 The following month, the FAA chartered an Aviation Rulemaking Committee (ARC) consisting of representatives from the FAA and industry and labor organizations.3 The ARC submitted non-public recommendations to the FAA on September 1, 2009, concerning proposed rulemaking on pilot flight and duty time.

On August 1, 2010, President Obama signed the Airline Safety and Federal Aviation Administration Extension Act of 2010, which directed the FAA to issue regulations no later than August 1, 2011, to “specify limitations on the hours of flight and duty time allowed for pilots to address problems relating to pilot fatigue.” Under the Act, the FAA is to consider factors such as time of day, number of takeoffs and landings, crossing multiple time zones, and the effects of commuting.

In September 2010, the FAA published a long-awaited Notice of Proposed Rulemaking (NPRM)4 that attempts to establish one set of flight time limitations, duty period limits and rest requirements for pilots in Part 121 operations. This NPRM incorporates the prior work of the ARC. If adopted, the requirements would eliminate the current distinctions between domestic, flag and supplemental operations. The rulemaking is limited to Part 121 certificate holders and the flightcrew members who work for them, although the FAA states that future rulemaking initiatives may address fatigue concerns related to flight attendants, maintenance personnel and dispatchers. The proposal applies to all flights conducted by Part 121 certificate holders, including other flights that are historically conducted under Part 91.

As summarized by the FAA, the proposal:

  • “sets forth a matrix that addresses transient fatigue ... by establishing a 9-hour minimum rest opportunity prior to commencing duty directly associated with the operation of aircraft (flight duty period, or FDP), placing restrictions on that type of duty, and further placing restrictions on flight time (that period of time when the aircraft is actually in motion – flight time is encompassed by FDP).”
  • “addresses cumulative fatigue by placing weekly and 28-day limits on the amount of time a flightcrew member may be assigned to any type of duty, including FDP. Further 28-day and annual limits are placed on flight time. Flightcrew members would be required to be given at least 30 consecutive hours free from duty on a weekly basis, a 25 percent increase over the current requirements.”
  • “addresses the impact of changing time zones and flying through the night by reducing the amount of flight time and FDP available for these operations.”
  • “allows a carrier to develop a carrier-specific fatigue risk management system (FRMS) ... allow[ing] a certificate holder to customize its operations based on a scientifically-validated demonstration of fatigue mitigating approaches and their impact on a flightcrew member’s ability to safely fly an airplane beyond the confines of the proposed rule.”
  • “provides a limited exception for certain emergency operations or operations conducted under contract with the United States government that cannot otherwise be conducted under the prescriptive requirements proposed [in the rule].”

Fitness for Duty

As a general premise, the NPRM provides that each flightcrew member must report for a flight duty period rested and prepared to perform assigned duties. Flight duty period is defined as:

A period that begins when a flightcrew member is required to report for duty with the intention of conducting a flight, a series of flights, or positioning or ferrying flights, and ends when the aircraft is parked after the last flight and there is no intention for further aircraft movement by the same flightcrew member. A flight duty period includes deadhead transportation before a flight segment without an intervening required rest period, training conducted in an aircraft, flight simulator or flight training device, and airport/standby reserve.

No certificate holder may assign an FDP if the flightcrew member has reported for duty too fatigued and a flightcrew member is not permitted to continue an FDP if he or she reports that they are too fatigued. Once notified of possible flightcrew member fatigue, the certificate holder must evaluate the flightcrew member for fitness for duty.

Pre-Flight Duty Rest Period

The NPRM proposes that flightcrew members be provided with a minimum of 9 hours rest prior to commencing a flight duty period, without distinction for domestic and international operations. The rest opportunity may be reduced by 1 hour once in any 168-hour period, but only if agreed to by the pilot in command. If the time period between the beginning of the rest period and the time the flightcrew must report for transportation to the airport is less than 8 hours, the carrier would need to delay the next day’s flight or make other crewing arrangements.

Importantly, transportation time to or from a duty station would neither be included in the minimum rest period nor considered duty. The NPRM notes: “[I]t is simply clearer from a regulatory perspective to acknowledge that time in transit is not rest. The FAA has decided against treating this time as duty because it recognizes that the permissible amount of cumulative duty is only nominally higher than the permissible amount of FDP and that the location of a rest facility is a lifestyle issue that is typically negotiated between the carriers and their unions.”

The NPRM specifically notes that the impact of commuting to a duty station has been linked to increased fatigue. The only current requirements with respect to commuting is the general requirement in Part 91 that pilots report to work fit for duty. The NPRM states that it is “unreasonable to assume that an individual is resting while commuting.” Thus, a certificate holder will need to consider the commuting times required by individual flightcrew when determining flight and rest schedules.

Cumulative Rest Requirements

The NPRM proposes that there be a 30-hour continuous rest requirement for each rolling 168-hour period. The FAA states that this rest requirement provides for a single physiological night rest and a rest opportunity immediately preceding or following that night.

Flight Time Limitations and Flight Duty Period

The NPRM provides that for unaugmented operations no certificate holder may schedule an assignment or continue an assigned FDP if the total flight time exceeds a certain amount, which depends on the starting time of the flight. For instance, regarding the start time, the maximum flight time may not exceed:

  • 8 hours if between midnight and 4:59 a.m.
  • 9 hours if between 5:00 a.m. and 6:59 a.m.
  • 10 hours if between 7:00 a.m. and 12:59 p.m.
  • 9 hours if between 1:00 p.m. and 7:59 p.m.
  • 8 hours if between 8:00 p.m. and 11:59 p.m.

For operations with an augmented flightcrew,5 the total flight time may not exceed 16 hours.

The NPRM provides for maximum flight duty periods for unaugmented operations ranging from 9 to 13 hours depending on the number of flight segments and the time of the start of the FDP. For operations with an augmented flight crew, the maximum flight duty period ranges from 12 to 18 hours depending on the time of start, the number of pilots and the nature of the rest facility. The NPRM defines three types of rest facilities for flight crew, which take into account factors such as sleeping position and degree of isolation from passengers and noise.

Fatigue Risk Management Systems

The FAA defines a Fatigue Risk Management System (FRMS) as a carrier-specific method of evaluating how to best mitigate fatigue based on active monitoring and evaluation by the carrier and flightcrew members. Recognizing that no country has adopted FRMS as a regulatory approach, the FAA proposes that a certificate holder be able to utilize the option when it “has developed an FAA-approved equivalent level of safety for monitoring and mitigating fatigue specific to those operations.” The NPRM states that a certificate holder would need to demonstrate that its FRMS has an education and awareness training program; a fatigue reporting system; a system for monitoring flightcrew fatigue; a performance evaluation; and possibly an incident reporting process.

Exception for Emergency and Government Sponsored Operations

The FAA recognizes that carriers may encounter circumstances that would require a flightcrew member to exceed the FDP limits. The NPRM would allow air carriers operating commercial flights not subject to a contract with a U.S. government agency to ask for a “one time deviation” to the FDP limits for a one time event in exceptional circumstances. If the FAA determined that the carrier is relying excessively on the deviation authority, the air carrier would have to change its operations or develop an FRMS to mitigate the chance of such an event from happening in the future.

Operations under contract with a U.S. government agency could be conducted under an exception to the FDP and flight time limits, but not to the cumulative restrictions on FDP, flight time and duty. The FAA would track these operations to determine whether the air carrier is properly mitigating the changes of its flight crews exceeding the FDP limits.

Implementation of Final Rule

As acknowledged by the FAA, “most part 121 operators will be required to make changes to their existing operations, and some will need to make more changes than others.” The public comment period for the NPRM concluded in mid-November 2010. It will likely be several months before the FAA implements the final rule, especially because there appears to be criticism about the proposed rules by some pilots’ unions and the Air Transport Association. The criticism focuses on the apparent increase in flight duty periods in certain instances, such as during daytime shifts, and the costs of implementing the rule. Thus, it is likely that there will be changes to the proposed rules before they become final. Centerline will continue to provide updates on this issue.

1 Prior issues of Centerline have discussed the issue of pilot fatigue. See and

FAA Washington Headquarters Press Release, “Call to Action Leads to Improvements in Pilot Training and Better Access to Pilot Action,” June 15, 2009.

The FAA asked the ARC to consider: a single approach to addressing fatigue; generally accepted principles of human physiology, performance and alertness; information on sources of aviation fatigue; current approaches to address fatigue mitigation strategies in international standards; and the information of fatigue risk management systems into a rulemaking.

Flightcrew Member Duty and Rest Requirements, 75 Fed. Reg. 55,852 (2010).

An augmented flight crew means a flight crew with more than the minimum number of flight crew members required by the aircraft type certificate in order to allow a flight crew member to replace another for in-flight rest.

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