Rule Proposed on Pilot Rest Requirements

Fri, Sep 24, 2010 — David Evans

Articles, Featured

With much public fanfare, the Federal Aviation Administration (FAA) published recently a proposed rule to limit pilots’ duty and flight time, thereby minimizing the risk of sleepy pilots flying passengers and putting all concerned at risk. Thus, if a pilot reports to work sometime between midnight and 4 a.m., no more than 6 flights over 9 hours should be undertaken. And if the pilot begins work at noon, work should be limited to 7 flights over 11 hours.

This proposed schedule does not appear to drastically reduce the potential for fatigue. Yet it has been characterized as a great advance in aviation safety.

In his official 10 September blog, Transportation Secretary Ray LaHood was effusive about the initiative:

“Today, we’re announcing a significant improvement in air travel: a proposal to fight fatigue among commercial pilots. This will help protect the more than 700 million passengers and pilots who travel our nation’s airways each year.”

FAA Administrator Randy Babbitt hailed the development:

“Fighting fatigue is the joint responsibility of the airline and the pilot, and after years of debate, the aviation community is moving forward to give pilots the tools they need to manage fatigue and fly safety.”

The illusion of a well rested, alert pilot.

The illusion of a well rested, alert pilot.

In its 10 September press release, titled “FAA Proposes Sweeping New Rule to Fight Pilot Fatigue,” the agency patted itself on the back for timeliness:

“Today’s proposal is compatible with provisions in the Airline Safety and Federal Administration Extension Act of 2010, which directs the FAA to issue a regulation no later than August 1, 2011, to specify limitations on the hours of pilot flight and duty time to address problems relating to fatigue.”

Given this August 2011 date certain from Congress, it does not appear that the FAA will meet the deadline, for reasons specified in the discussion below. In truth, despite the heady and self-congratulatory rhetoric accompanying the release of the proposed rule, the way it’s structured is a prescription for endless debate. The rules for scheduling pilots will not change in the near term, and substantive long-term changes are problematic.

Significant Regulatory & Related Activity


14 September 2010                                           Federal Aviation Administration (FAA)

(This is the date the proposed rules appeared in the Federal Register)

FR Doc 2010-22626                                            Docket No. FAA-2009-1093

Notice of Proposed Rulemaking (NPRM), Flightcrew Member Duty & Rest Requirements

This rulemaking proposes to establish one set of flight time limitations, duty period limits, and rest requirements for pilots in Part 121 (scheduled airline) operations. The rulemaking aims to ensure that pilots have an opportunity to obtain sufficient rest to perform their duties, with an objective of improving aviation safety.

Current Part 121 pilot duty and rest times differ by type of operation (domestic, flag, and supplemental). A general summary of current and proposed flight time limits, duty time limits, and rest time requirements are shown in the table:


Tinkering at the margins may be an apt description.

To be sure, the subject of pilot flight and duty time is enormously controversial. The shorter the allowed hours, the more pilots the airlines must hire to support their flying schedules. For the pilots, the longer the schedule, the more demanding and enervating is the work day (or night).

Past efforts to rationalize the dilemma have been deadlocked. In 1992 the FAA convened an Aviation Rulemaking Advisory Committee (ARAC) to come up with recommended rules to modernize obsolescent regulations. Based on the committee’s recommendations, the FAA published an NPRM in 1995. The NPRM stimulated over 2,000 comments. Many of the comments charged that the FAA lacked the scientific evidence to justify the rulemaking.

As a consequence, the NPRM was withdrawn in 2009.

Administrator Babbitt chartered an Aviation Rulemaking Committee (ARC) to wrestle with the problem again and give him some ideas – and some science to back up its proposals.

Note that Babbitt did not charter a second ARAC, but an ARC. An ARAC must announce its meetings to the public, which can attend and observe the meetings of the full committee. An ARC has no such obligation and meets without benefit of public observance.

The ARC was composed primarily of industry insiders: airlines, pilot unions, FAA officials and a smattering of others.

Basically, ARC sessions were closed-door meetings of the traditional network of industry “stakeholders.” Truly independent experts were not consulted.

The ARC was supposed to develop flight/duty time recommendations affecting both Part 121 (scheduled airline) and Part 135 (on demand/charter operations). A footnote in the proposed rule says, without explanation, “While tasked to consider Part 135 operations, the ARC did not consider these operations, and this proposal does not address them either.”

Based partly on the ARC recommendations, submitted to the FAA in September 2009, the FAA has issued this NPRM considerably later than originally promised – a good eight months behind the schedule originally propounded by the FAA.

In the NPRM, the FAA explains the problem:

“The FAA believes its current regulations do not adequately address the risk of fatigue. Presently, flightcrew members are effectively allowed to work up to 16 hours a day, with all of that time spent on tasks directly related to aircraft operations. The regulatory requirement for 9 hours of rest is regularly reduced, with flightcrew members spending rest time traveling to or from hotels and being provided with little to no time to decompress. Additionally, certificate holders [airlines] regularly exceed the allowable duty periods by combining flights under Part 91 [to position aircraft] instead of Part v121, where the applicable flight, duty and rest requirements are housed. As the NTSB [National Transportation Safety Board] repeatedly notes, the FAA’s regulations do not account for the impact of circadian rhythms on alertness, and the entire set of regulations is overly complicated, with a different set of regulations for domestic operations, flag operations, and supplemental operations.”

It is not at all clear how this 145-page NPRM clears up the problem of “overly complicated” rules. Fifty pages might have been necessary to drain the Augean stables of conflicting rules, exemptions, addenda, multiple interpretations, and such. Closer to a 20-page NPRM might have provided a better model of clarity, succinctness, and ease of understanding.

Anonymously documented through NASA's Aviation Safety Reporting System (ASRS): two pilots fell asleep during a night flight between Baltimore and Denver. One pilot woke up to "frantic" calls from air traffic control advising that they were approaching the airport at twice the allowed speed.

Anonymously documented through NASA's Aviation Safety Reporting System (ASRS): two pilots fell asleep during a night flight between Baltimore and Denver. One pilot woke up to "frantic" calls from air traffic control advising that they were approaching the airport at twice the allowed speed.

Questions seeking answers

But this is not so much an NPRM as it is a take-home quiz. Interspersed throughout the NPRM are questions for which the FAA “seeks comment.” And the FAA is more interested in cost than safety, as indicated by this remark:

“We are particularly interested in receiving recommendations that would provide the same or better protection against the problems of fatigue at lower cost.” [Emphasis added]

In other words, ideas that entail hiring more pilots or providing sleeping facilities in ready rooms (or adjacent thereto) are not desired.

In all, there are some 43 questions and/or issues on which comments are actively sought. But the FAA is NOT inviting comment on the thorny issue of pilots commuting long distances and overnight to their place of work.

So let’s see – the last time the FAA issued an NPRM on pilot fatigue, it received over 2,000 comments. Now the FAA has issued a 145-page NPRM with an average of one requested response every three pages. If the FAA receives half as many comments as before, it’s got a mountain of material to go through:

1,000 responses x 43 answers each = 143,000 inputs

With all that paper to sift through and digest, it is not likely a final rule will be issued by the August 2011 deadline imposed by Congress.

A substantial number of the questions are not trivial, and one wonders why they were posed after the ARC wrestled with them. To give a flavor, here are four examples of queries for which the FAA seeks comment:

— Please comment on adopting maximum FDPs [Flight Duty Period].Should the maximum FDP vary based on time of day? Should it vary based on the number of scheduled flight segments? Should the proposed limits be modified up or down, and to what degree? Please provide supporting data. (This is one of the 43 questions.)

— Should the FAA require additional rest opportunities for multiple pairings between two time zones that have approximately 24-hour layovers at each destination? What is the scheduled FDPs are well within the maxima in the applicable FDP or augmentation table?

— Should a fourth night of consecutive nighttime duty be permitted if the flightcrew member is provided a 14-hour rest period between nights three and four?

— The FAA requests that small entity operators provide estimated impacts of the proposed changes on their existing crew schedules. The FAA requests that all comments be accompanied by clear supporting data.

Among the significant gaps in the questions: the practice of ordering Part 121 or Part 135 pilots to conduct positioning flights under Part 91 when their passenger/cargo carrying schedules are complete. There are no restrictions on FDP under Part 91, thereby permitting operators to squeeze more work out of a fatigued crew. The FAA maintains that its new proposed rule covers Part 91 positioning flights; the question is why such flights are even conducted under the more lax standards of Part 91 in the first place, which have different bookkeeping requirements.

And if positioning flights are to be accounted for in the schedule, remember that the FAA is proposing 8-10 flights per day. Positioning flights are generally taken last, so they will be made right when pilots are entering, or in, the window of circadian low, when they are the most fatigued and the least alert.

Comments are due to the FAA by 15 November. For those parties intending to provide responses, time is of the essence!

Fatigue is universal, but the FAA prefers to compartment the problem

The proposed rule addresses Part 121 scheduled airline operations only. Part 135 on demand/charter flights are going to be addressed later. The FAA provides the following rationale:

“While fatigue is a universal problem that applies to all types of operations and to all safety sensitive functions, the agency has decided to take incremental steps in addressing fatigue. Thus, future rulemaking initiatives may address fatigue concerns related to flight attendants, maintenance personnel, and dispatchers.

“In addition, Part 135 certificate holders should pay close attention to both this NPRM and any final rule. This is because Part 135 operations are very similar to those conducted under Part 121, particularly Part 121 supplemental operations. The FAA does not intuitively see any difference in the safety implications between the two types of operations, although it acknowledges there may be less overall risk to the flying public in Part 135 operations than in Part 121 operations. Accordingly, the Part 135 community should expect to see an NPRM addressing its operations that looks very similar to, if not exactly like, the final rule the agency anticipates issuing as part of this rulemaking initiative.”

If the rules are expected to be the same, it may be better to get all the controversy out on the table with one NPRM covering both Part 121 and Part 135.

The claim that Part 135 flights entail less risk to the public is curious. Maybe this is because fewer passengers are carried on Flight 135 operations: about 2.8 million on demand flights versus 17 million scheduled airliner flights. But the accident rate per 100,000 flights hours is considerably greater. According to NTSB records, Part 121 carriers in 2009 racked up 0.149 accidents per 100,000 flight hours. For the same year, Part 135 operators accumulated 1.81 accidents per 100,000 flight hours – a rate some 12 times greater.


Many pilots commute to their base across multiple time zones and/or hundreds of miles. For example, the two pilots killed in the crash of the Colgan Air Dash 8-Q400 turboprop on 12 February 2009 had spent the night before commuting to their duty station at Newark, NJ. The Captain, Marvin Renslow, commuted from Florida and stayed overnight in Colgan’s crew room. The first officer, Rebecca Shaw, commuted from the West Coast and caught naps on the airplane headed east and in the crew room.

The flight was later the next night, and the complacency evident in their conversation captured by the cockpit voice recorder is strongly suggestive of fatigue. After the upset in the approach to Buffalo, neither pilot called “stall.” Neither pilot called “go around.” While not attributable directly to fatigue, complacency is one of the indicators of being tired. The CVR captured many instances where complacency was at work. (See Air Safety Journal, February 2009, “General Industry Laxity Criticized in Wake of Colgan Air Crash”)

The FAA response to the issue of commuting features plenty of rhetoric and no proposed regulation:

“The FAA … believes it is inappropriate to rely on the existing requirements … to report to work fit for duty. The FAA believes a primary reason that pilots engage in irresponsible commuting practices is a lack of education on what activities are fatiguing and how to mitigate developing fatigue. The FAA has developed a draft fitness for duty AC (advisory Circular) that elaborates on the pilot’s responsibility to be physically fit for flight prior to accepting any flight assignment, which includes the pilot being properly rested. Additionally, the AC outlines the certificate holder’s responsibility to ensure each flightcrew member is properly rested before assigning that flightcrew member to any flight. That document has been placed in the docket for this rulemaking.”

Let the record reflect that an AC does not have the force of regulation. There is nothing in the AC that restrains poorly-paid pilots from residing in low cost-of-living areas and commuting to their bases, such as Colgan’s in Newark. There is nothing in an AC that requires Colgan to minimize the effects of commuting.

For example, there is no prohibition against pilots commuting more than 500 miles and/or across time zone boundaries. There is no requirement for airlines to provide pilots engaged in multi-state/multi-time zone commutes with sleeping accommodations at the base (guaranteeing that pilots would receive a good period of restorative sleep before assuming duty).

One might suggest the FAA is being inconsistent here. On the one hand the agency addresses the need to account for Part 91 positioning flights, and their aggravating effect on fatigue. On the other hand, the FAA steps away from any regulatory response to the pernicious problem of crews catnapping in duty rooms or sleeping in cramped apartments shared by a dozen or more pilots.

There is nothing in the NPRM to prevent a repeat of the crew fatigue strongly suspected as having played a role in the Colgan Air crash.

Saving lives and money

The FAA is required to demonstrate that any new regulation has been subjected to a cost-benefit analysis, and that benefits are equal to or greater than costs. The FAA estimates the new rule will cost the airline industry some $1.25 billion over the 10 years from 2013-2022. That’s for training, revised crew scheduling, something called “schedule reliability” ($4.9 million), and other factors.

For benefits, the FAA anticipates the new rule will help avoid fatigue related accidents. Specifically, the FAA estimates 28.9 airplane accidents in a 10-year period. These crashes would result in 174 deaths. The total cost of these crashes is pegged at $1.58 billion.

The benefits seem to outweigh the costs. But the FAA goes on to say:

“(T)he proposed rule would be 40% effective at preventing passenger airplane accidents where pilot fatigue was a contributing factor and would be 58% effective at preventing cargo airplane accidents was a contributing factor … The revised estimated benefit of avoiding passenger and cargo airplane accidents would be a mean value of $659.4 million.”

One presumes the higher effectiveness of the rule on cargo flights has something to do with the fact that cargo operations are generally most intense during hours of darkness, when fatigue is most pernicious.

The FAA goes on to say that if the cost of a death is tweaked upward, the benefit of crashes avoided exceeds the cost of the rule.

Since less experienced pilots will be flying longer hours in coming years, with commuting to work and positioning flights thrown in, the FAA could easily assert that the cost of the rule, and then some, will be outweighed by the benefits. At $10 million per passenger death, the Colgan Air crash alone cost the industry about half a billion dollars. The cost of providing sleeping accommodations for commuting pilots at Newark amounts to a few tens of thousand of dollars.

There are any number of creative ways to show that a rested pilot is a safe pilot – and that a safe operation is cheaper by far than a smoking crater full of bent metal and fractured bodies. Documenting fatigue may be difficult, but the effects are real.

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