• The NTSB and FAA Address Fatigue in Aviation Operations
  • August 20, 2008 | Authors: Judith R. Nemsick; Marc L. Antonecchia
  • Law Firm: Holland & Knight LLP - New York Office
  • The National Transportation Safety Board (NTSB) recently increased its efforts to prompt the FAA to act on the issue of the effects of fatigue on flight crews and maintenance personnel. Although the issue of fatigue has been on the NTSB’s “Most Wanted List of Transportation Safety Improvements” since 1990, the NTSB declared in February 2008 that the FAA “has taken little if any action directly related to revising existing regulations and work scheduling practices.”1

    The NTSB’s June 2008 Safety Recommendation

    In June 2008, the NTSB issued a new Safety Recommendation addressing fatigue in the aviation environment.2 Underlying this latest Recommendation are four incidents and accidents since 2004 that were attributed, at least in part, to pilot fatigue. In one of these incidents, the NTSB determined that the pilots were conducting their fifth landing at the conclusion of a 14-hour-long duty day.

    Noting that the NTSB’s Most Wanted List currently has four aviation fatigue-related recommendations concerning flight crews and maintenance personnel,3 the new Safety Recommendation provides that the FAA should:

    • Develop guidance, based on empirical and scientific evidence, for operators to establish fatigue management systems, including information about the content and implementation of these systems.
    • Develop and use a methodology that will continually assess the effectiveness of fatigue management systems implemented by operators, including their ability to improve sleep and alertness, mitigate performance errors, and prevent incidents and accidents.

    Recognizing that prior NTSB recommendations dealt primarily with flight and duty time regulations, the latest Recommendation provides that the FAA oversee the implementation of a “fatigue management system” that would address “the problems associated with fatigue in an operational environment” and “take a comprehensive, tailored approach to the problem of fatigue” within the industry. A fatigue management system encompasses much more than just setting guidelines or standards concerning duty, flight and rest periods. As envisioned by the NTSB, a fatigue management system incorporates various strategies to manage fatigue, such as scheduling practices, attendance policies, education, medical screening and treatment, rest environments, and commuting policies. The Recommendation cites several foreign civil aviation authorities, such as those of New Zealand, Australia and Canada, that have implemented regulations or practices that incorporate fatigue management systems utilizing similar strategies.3

    While stressing the importance of fatigue management systems, the Recommendation notes that flight and duty times remain primary concerns that cannot be replaced by fatigue management systems implemented by individual operators.4 The Recommendation states that current regulations permit continuous duty periods of 16 hours, while highlighting data showing that pilot error increases after continuous duty for more than 12 hours.

    NTSB Criticism of the FAA’s Past Response on Fatigue Issues

    The NTSB has been generally critical of what it views as the FAA’s inaction concerning fatigue. It has deemed the FAA’s response to several of the recommendations on the Most Wanted List concerning flight crews and maintenance personnel as “unacceptable.” The primary criticism appears to lie with the FAA’s failure to revise or implement duty and flight time limitations and rest requirements. In addition to the NTSB’s pressure to modify the regulations, the Air Line Pilots Association (ALPA) has called for the FAA to reduce “severely outdated” flight and duty time regulations.5

    Current Standards for Flight Crews

    The current rules relating to pilots operating Part 121 aircraft domestically provide that no flight crewmember may be scheduled or accept an assignment for flight time if that member’s total flight time in all commercial flying would exceed: “(1) 1,000 hours in any calendar year; (2) 100 hours in any calendar month; (3) 30 hours in any 7 consecutive days; [or] (4) 8 hours between required rest periods.” 14 C.F.R. 121.471(a). The minimum rest periods required are 9 consecutive hours for less than 8 hours of scheduled flight time; 10 consecutive hours for 8 to 9 hours of scheduled flight time; and 11 consecutive hours for 9 or more scheduled flight time hours. 14 C.F.R. 121.471(b)(1)-(3).

    The regulations, however, permit the airlines to reduce the minimum rest periods to 8 consecutive hours of rest in any 24-hour period provided that the next rest period is lengthened to provide for appropriate compensatory rest. 14 C.F.R. 121.471(c). For example, if the pilot’s rest period is reduced to the 8-hour minimum, then the next rest period must be lengthened to 10 hours of compensatory rest. This rest period must begin no later than 24 hours after the commencement of the reduced 8-hour rest period. Significantly, the calculation of flight time and rest is based on actual expected flight time and taxi-in time. Thus, if an airline has published a flight time of 3 hours, but knows that certain conditions such as weather or ground delays will cause the flight to take 4 hours, then it must use 4 hours for purposes of calculating time. Under no circumstances may a flight crew’s rest period be reduced below 8 hours.6

    Although there have been some efforts by the FAA in the past 15 years to update and simplify the flight and duty regulations for airline pilots, the rules have not changed. For example, in 1995, the FAA issued a notice of proposed rulemaking (NPRM) that, under the proposed rules, would have reduced the number of duty hours (the time that a crewmember is on the job and available to fly) from 16 hours to 14 hours for two-pilot crews, and increased rest time in the 24-hour period from 8 to 10 hours. However, the FAA encountered a number of technical and operational issues that prevented the proposed rules from becoming finalized.

    In 1998, the FAA asked the Aviation Rulemaking Advisory Committee (ARAC) to work with the airlines and pilots to develop new rules. No consensus could be reached on one set of changes, and the outcome was five different proposals. In 2001, the FAA published a notice in the Federal Register, reiterating its long-standing interpretation of the rest regulations for Part 121 pilots (including the 8-hour minimum reduced rest period) and advising of its intention to enforce the rules in accordance with this interpretation.7 More recently, in 2006, the FAA issued a Safety Alert for Operators (SAFO), directing operators to fatigue-related information developed by the DOT’s Operator Fatigue Management Program. While the foregoing program resulted in a practical guide addressing fatigue management and work schedules, the FAA did not apply or incorporate any of the information into new regulations.

    Current Standards for Maintenance Personnel

    In 1997, the NTSB recommended that the FAA establish duty time limitations for maintenance personnel. The FAA has taken the position that maintenance crew fatigue and duty time are not appropriate for regulatory activity and that education and training in fatigue management are more appropriate. The NTSB has stated its disagreement with the FAA’s position that regulatory action is not appropriate and determined that the FAA has provided “little guidance” other than “general warnings that attention to fatigue is important.”8

    The FAA’s June 2008 Aviation Fatigue Management Symposium

    Shortly after the NTSB issued its June 2008 Recommendation, the FAA conducted a three-day fatigue management symposium. Although the symposium was not open to the public or media, the FAA reports that the participants considered fatigue as it relates to flight and cabin crews, air traffic controllers, technicians, mechanics, dispatchers and ramp workers.9 Although the FAA stopped short of stating its intention to amend regulations concerning flight, duty and rest time or that it would require the implementation of fatigue management systems, the FAA suggests that fatigue management systems should be the subject of further examination: “The FAA hopes the participating individuals and organizations will use the information and concepts shared during the symposium as a springboard to develop effective fatigue management strategies.”10

    Industry-Wide Attention to the Issue of Fatigue May Lead to Change

    As a result of the recent emphasis on the issue, fatigue in aviation operations is likely to be scrutinized extensively over the coming months. The FAA has now recognized that “incorporating fatigue risk management systems into everyday operations is the ultimate goal, but doing so will take innovation in addressing a myriad of regulatory issues.”11 Although the exact framework of change is still to be determined, the introduction of fatigue management systems will require consideration of extensive legal and business issues, especially given the interplay and possible divergence of views among regulatory, management and union interests.

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    1 NTSB Most Wanted Transportation Safety Improvements (Aviation), “Reduce Accidents and Incidents Caused by Human Fatigue,” (February 2008), available at: http://ntsb.gov/recs/mostwanted/aviation_reduce_acc_inc_humanfatig.htm

    2 NTSB Safety Recommendation, A-08-44 and -45 (June 12, 2008), available at : http://www.ntsb.gov/recs/letters/2008/a08_44_45.pdf

    3 The recommendations are: (1) revise Part 135 to require that pilot flight time accumulated in all company flying conducted after revenue operations (e.g. training and check flights) be included in the crewmember’s total flight time accrued during revenue operations; (2) review and revise current flight and duty time regulations to ensure that the limitations take into consideration research findings in fatigue and sleep issues; (3) review the issue of personnel fatigue in aviation maintenance and establish duty time limitations for maintenance; and (4) modify and simplify the flight crew hours-of-service regulations to take into consideration factors such as length of duty day, starting time, workload, and other factors shown to affect crew alertness.

    4 The Recommendation notes that New Zealand’s Civil Aviation Authority requires that operators establish a “scheme” that addresses factors relating to fatigue, including rest periods before flight, time zones, night operations, multi- and single-pilot operations, mixed duties, “dead-head” transportation, reserve or standby periods, in-flight relief, cumulative duty and flight times, circadian rhythms and record-keeping.

    5 Although the Recommendation is geared primarily to flight crews, it suggests that FAA guidance concerning fatigue management systems could be expanded to other aviation workers, such as maintenance personnel.

    6 “Airline Pilot Fatigue Still Front-and-Center Safety Risk,” ALPA News, April 16, 2008.

    7 Airlines also have contractual flight time and rest requirements as part of their collective bargaining agreements.

    8 66 Fed. Reg. 27548 (May 17, 2001). Although the ATA sought and obtained a stay of the enforcement notice, the U.S. Court of Appeals for the District of Columbia ruled in favor of the FAA’s enforcement plan. See Air Transport Ass’n of Am. v. FAA, 291 F.3d 49 (D.C. Cir. 2002).

    9 The NTSB cites Advisory Circular 120-72, “Maintenance Resource Management (MRM) Training” as the source of the FAA’s education and training initiatives related to maintenance personnel fatigue.

    10 FAA Statement on the Aviation Fatigue Management Symposium, (June 24, 2008). available at: http://www.faa.gov/news/press_releases/news_story.cfm?newsId=10246

    11 Id