Flightcrew Member Duty and Rest Requirements

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 117, 119, and 121

[Docket No. FAA-2009-1093; Amdt. Nos. 117-1, 119-16, 121-357]

RIN 2120-AJ58

Flightcrew Member Duty and Rest Requirements

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule amends the FAA's existing flight, duty and rest regulations applicable to certificate holders and their flightcrew members operating under the domestic, flag, and supplemental operations rules. The rule recognizes the universality of factors that lead to fatigue in most individuals and regulates these factors to ensure that flightcrew members in passenger operations do not accumulate dangerous amounts of fatigue. Fatigue threatens aviation safety because it increases the risk of pilot error that could lead to an accident. This risk is heightened in passenger operations because of the additional number of potentially impacted individuals. The new requirements eliminate the current distinctions between domestic, flag and supplemental passenger operations. The rule provides different requirements based on the time of day, whether an individual is acclimated to a new time zone, and the likelihood of being able to sleep under different circumstances.

DATES:

Effective January 14, 2014.

ADDRESSES:

For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the

SUPPLEMENTARY INFORMATION

section of this document.

FOR FURTHER INFORMATION CONTACT:

For technical issues: Dale E. Roberts, Air Transportation Division (AFS-200), Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-5749; email:

dale.e.roberts@faa.gov.

For legal issues: Rebecca MacPherson, Office of the Chief Counsel, Regulations Division (AGC-200), 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3073; email:

rebecca.macpherson@faa.gov.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. This rulemaking is promulgated under the authority described in 49 U.S.C. 44701(a)(5), which requires the Administrator to promulgate regulations and minimum safety standards for other practices, methods, and procedures necessary for safety in air commerce and national security. This rulemaking is also promulgated under the authority described in 49 U.S.C. 44701(a)(4), which requires the Administrator to promulgate regulations in the interest of safety for the maximum hours or periods of service of airmen and other employees of air carriers.

Table of Contents

I. Overview of Final Rule

II. Background

A. Statement of the Problem

B. National Transportation Safety Board (NTSB) Recommendations

C. Flight and Duty Time Limitations and Rest Requirements Aviation Rulemaking Committee

D. Congressional Mandate

E. Notice of Proposed Rulemaking

III. Discussion of Public Comments and Final Rule

A. Applicability

B. Definitions

C. Fitness for Duty

D. Fatigue Education and Training

E. Fatigue Risk Management System

F. Flight Duty Period—Unaugmented

G. Flight Time Limitations

H. Flight Duty Period—Augmented

I. Schedule Reliability

J. Extensions of Flight Duty Periods

K. Split Duty

L. Consecutive Nights

M. Reserve

N. Cumulative Limits

O. Rest

P. Deadhead Transportation

Q. Emergency and Government Sponsored Operations

R. Miscellaneous Issues

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

B. Final Regulatory Flexibility Analysis

C. International Trade Impact Assessment

D. Unfunded Mandates Assessment

E. Paperwork Reduction Act

F. International Compatibility

G. Environmental Analysis

V. Executive Order Determinations

A. Executive Order 12866

B. Executive Order 13132, Federalism

C. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

VI. How To Obtain Additional Information

A. Rulemaking Documents

B. Comments Submitted to the Docket

C. Small Business Regulatory Enforcement Fairness Act

I. Overview of Final Rule

The FAA is issuing this final rule to address the risk that fatigue poses to passenger operations conducted under 14 CFR part 121. Part 121 applies to the majority of flights flown by the American public. As such, changes to the existing flight, duty and rest rules in part 121 will directly affect the flying public. This rule applies to all part 121 passenger operations, including traditional scheduled service and large charter operations. The FAA has removed the existing distinctions between domestic, supplemental and flag passenger operations because the factors leading to fatigue are universal and addressing the risk to the flying public should be consistent across the different types of operations.

This final rule addresses fatigue risk in several ways. The underlying philosophy of the rule is that no single element of the rule mitigates the risk of fatigue to an acceptable level; rather, the FAA has adopted a system approach, whereby both the carrier and the pilot accept responsibility for mitigating fatigue. The carrier provides an environment that permits sufficient sleep and recovery periods, and the crewmembers take advantage of that environment. Both parties must meet their respective responsibilities in order to adequately protect the flying public.

The final rule recognizes the natural circadian rhythms experienced by most people that causes them to be naturally more tired at night than during the day. Under the final rule, flightcrew members will be able to work longer hours during the day than during the night. Significant changes in time zones, a situation unique to aviation, are accounted for to reduce the risk to the flying public posed by “jetlag”.

The FAA has decided against adopting various provisions proposed in the NPRM. The final rule does not apply to all-cargo operations, although those carriers have the ability to fly under the new rules if they so choose. The proposal that carriers meet certain schedule reliability requirements has been dropped, as has the proposed requirement that carriers evaluate flightcrew members for fatigue. The FAA has determined that these provisions were either overly costly or impractical to implement.

1. Fitness for Duty

This rule places a joint responsibility on the certificate holder and each flightcrew member. In order for the flightcrew member to report for an FDP properly rested, the certificate holder must provide the flightcrew member

with a meaningful rest opportunity that will allow the flightcrew member to get the proper amount of sleep. Likewise, the flightcrew member bears the responsibility of actually sleeping during the rest opportunity provided by the certificate holder instead of using that time to do other things. The consequence of a flightcrew member reporting for duty without being properly rested is that he or she is prohibited from beginning or continuing an FDP until he or she is properly rested.

2. Fatigue Education and Training

Part 121 air carriers are currently statutorily-required to annually provide, as part of their Fatigue Risk Management Plan, fatigue-related education and training to increase the trainees' awareness of: (1) Fatigue; (2) “the effects of fatigue on pilots;” and (3) “fatigue countermeasures.” Today's rule adopts the same standard of training as required by the statute. In addition, today's rule adopts a mandatory update of the carriers' education and training program every two years, as part of the update to their FRMP. Both of these regulatory provisions merely place the existing statutory requirements in the new flight and duty regulations for the ease and convenience of the regulated parties and the FAA.

3. Fatigue Risk Management System

The FAA proposed a Fatigue Risk Management System (FRMS) as an alternative regulatory approach to provide a means of monitoring and mitigating fatigue. Under an FRMS, a certificate holder develops processes that manage and mitigate fatigue and meet an equivalent level of safety. The FAA is adopting that proposal largely as proposed. The FAA has also decided to extend the voluntary FRMS program to all-cargo operations, which are not required to operate under part 117. Under the FRMS provisions that this rule adds to subparts Q, R, and S of part 121, an all-cargo operator that does not wish to operate under part 117 can nevertheless utilize an FRMS as long as it has the pertinent FAA approval.

4. Unaugmented Operations

One of the regulatory concepts that this rule introduces is the restriction on flightcrew members' maximum Flight Duty Period (FDP). In creating a maximum FDP limit, the FAA attempted to address three concerns. First, flightcrew members' circadian rhythms needed to be addressed because studies have shown that flightcrew members who fly during their window of circadian low (WOCL) can experience severe performance degradation. Second, the amount of time spent at work needed to be taken into consideration because longer shifts increase fatigue. Third, the number of flight segments in a duty period needed to be taken into account because flying more segments requires more takeoffs and landings, which are both the most task-intensive and the most safety-critical stages of flight. To address these concerns, the FAA is adopting as part of the regulatory text a table limiting maximum FDP based on the time of day and the number of segments flown during the FDP period. Under today's rule an FDP begins when a flightcrew member is required to report for duty that includes a flight and ends when the aircraft is parked after the last flight and there is no plan for further aircraft movement by the same flightcrew member. The maximum FDP limit is reduced during nighttime hours to account for being awake during the WOCL; when an FDP period consists of multiple flight segments in order to account for the additional time on task; and if a flightcrew member is unacclimated to account for the fact that the unacclimated flightcrew member's circadian rhythm is not in sync with the theater in which he or she is operating. Actual time at the controls (flight time) is limited to 8 or 9 hours, depending on the time of day that the FDP commences.

5. Augmented Operations

In order to accommodate common operational practices, the final rule allows longer duty periods in instances where the carrier provides additional crew and adequate on-board rest facilities. The extended FDPs are laid out in a table and provide maximum credit when an operator employs a 4-man crew and provides the highest quality on-board rest facility.

6. Extensions of Flight Duty Periods

This rule sets forth the limits on the number of FDPs that may be extended; implements reporting requirements for affected FDPs; and distinguishes extended FDPs due to unforeseen operational circumstances that occur prior to takeoff from those unforeseen operational circumstances that arise after takeoff. The FAA agrees that an extension must be based on exceeding the maximum FDP permitted in the regulatory tables rather than on the times that the air carrier had originally intended for an FDP, which may be considerably less than the tables allow. It is unreasonable to limit extensions on FDPs that are less than what the certificate holder can legally schedule. In addition, there is a 30-minute buffer attached to each FDP to provide certificate holders with the flexibility to deal with delays that are minimal.

7. Split Duty

Split duty rest breaks provide carriers with nighttime operations with additional flexibility. Typically split duty rest would benefit carriers who conduct late night and early morning operations where the flightcrew members would typically be afforded some opportunity to sleep, but would not receive a legal rest period. Under today's rule split duty rest must be at least 3 hours long and must be scheduled in advance. The actual split duty rest breaks may not be shorter than the scheduled split duty rest breaks. The rationale for this is that flightcrew members must, at the beginning of their FDP, evaluate their ability to safely complete their entire assigned FDP. In order to do so, they must not only know the length of the FDP, but any scheduled split duty rest breaks that they will receive during the FDP.

8. Consecutive Night Operations

In formulating this rule, the FAA was particularly concerned about cumulative fatigue caused by repeatedly flying at night. Modeling shows substantially deteriorating performance after the third consecutive nighttime FDP for flightcrew members who worked nightshifts during their WOCL and obtained sleep during the day. However, if a sleep opportunity is provided during each nighttime FDP, that sleep opportunity may sustain flightcrew member performance for five consecutive nights. Based on modeling results, the FAA has determined that a 2-hour nighttime sleep opportunity each night improves pilot performance sufficient to allow up to 5 nights of consecutive nighttime operations.

9. Reserve

The FAA has decided to rely on the expertise represented in the ARC to address the issue of reserve duty. The adopted regulatory provisions addressing reserve and unaugmented operations provide that the total number of hours a flightcrew member may spend in a flight duty period and reserve availability period may not exceed 16 hours or the maximum applicable flight duty period table plus four hours, whichever is less. This will allow most FDPs to be accommodated by a flightcrew member on short-call reserve. This rule adopts the proposal that limits the short-call reserve availability period, in which the

flightcrew member is not called to report to work, to 14 hours.

10. Cumulative Limits

The FAA is adopting cumulative limits for FDP and flight-time limits. The FAA has decided to retain both of these cumulative limits because (1) the FDP limits restrict the amount of cumulative fatigue that a flightcrew member accumulates before and during flights; and (2) the flight-time limits allow the FAA to provide air carriers with more scheduling flexibility by setting higher cumulative FDP limits in this rule. This additional scheduling flexibility justifies the added restrictions on cumulative flight time, which can easily be tracked by scheduling programs currently in use throughout the industry. The FAA has decided to eliminate the cumulative duty-period limits, which should greatly simplify compliance with this section.

11. Rest

Carriers will be required to provide their crew with a 10-hour rest opportunity prior to commencing a duty period that includes flying. While the 10-hour rest period may include the amount of time it takes to get to or from a flightcrew member's house or hotel room, the actual amount of time required for a sleep opportunity may not be reduced below 8 hours. In addition, the length of continuous time off during a 7-day period has been extended from 24 hours under the existing rules to 30 hours. Additional time off is required for individuals whose internal clock may be off because of flipping back and forth between different time zones.

12. Emergency and Government Sponsored Operations

This rulemaking also addresses operations that require flying into or out of hostile areas, and politically sensitive, remote areas that do not have rest facilities. These operations range from an emergency situation to moving armed troops for the U.S. military, conducting humanitarian relief, repatriation, Air Mobility Command (AMC), and State Department missions. The applicability provision of this section now specifically articulates the two categories of operations that are affected. This section applies to operations conducted pursuant to contracts with the U.S. Government department and agencies. This section also applies to operations conducted pursuant to a deviation issued by the Administrator under § 119.57 that authorizes an air carrier to deviate from the requirements of parts 121 and 135 to perform emergency operations. This authority is issued on a case-by-case basis during an emergency situation as determined by the Administrator. The FAA concludes that these two categories are the only types of operations that warrant separate consideration because of the unique operating circumstances that otherwise limit a certificate holder's flexibility to deal with unusual circumstances.

Costs and Benefits

We have analyzed the benefits and the costs associated with the requirements contained in this final rule. We provide a range of estimates for our quantitative benefits. Our base case estimate is $376 million ($247 million present value at 7% and $311 million at 3%) and our high case estimate is $716 million ($470 million present value at 7% and $593 million at 3%). The FAA believes there are also not-quantified benefits to the rule that, when added to the base case estimate, make the rule cost beneficial. The total estimated cost of the final rule is $390 million ($297 million present value at 7% and $338 million at 3%).

Summary Over a 10 Year Period

Total quantified benefits

Estimate

Nominal

(millions)

PV at 7%

(millions)

PV at 3%

(millions)

Base

$376

$247

$311

High

716

470

593

Total quantified costs

Component

Nominal

(millions)

PV at 7%

(millions)

PV at 3%

(millions)

Flight Operations

$236

$157

$191

Rest Facilities

138

129

134

Training

16

11

13

Total

390

297

338

The FAA has made significant changes to the final rule since the NPRM. The training requirement has been substantially reduced because the FAA has determined that pilots are already receiving the requisite training as part of the statutorily required Fatigue Risk Management Plans. The FAA also has removed all-cargo operations from the applicability section of the new part 117 because their compliance costs significantly exceed the quantified societal benefits.

1

All-cargo carriers may choose to comply with the new part 117 but are not required to do so. Since the carrier would decide voluntarily to comply with the new requirements, those costs are not attributed to the costs of this rule. The costs associated with the rest facilities occur in the two years after the rule is published. The other costs of the rule and the benefits are then estimated over the next ten years.

1

The projected cost for all-cargo operations is $306 million ($214 million present value at 7% and $252 million at 3%). The projected benefit of avoiding one fatal all-cargo accident ranges between $20.35 million and $32.55 million, depending on the number of crewmembers on board the aircraft.

II. Background

On September 14, 2010, the FAA published a Flightcrew Member Duty and Rest Requirements notice of proposed rulemaking (NPRM) setting out proposed flight, duty, and rest regulations intended to limit flightcrew member fatigue in part 121 operations. These proposed regulations applied to all operations conducted pursuant to part 121, and the regulations would

have imposed, among other things, the following limits/requirements: (1) A requirement that a flightcrew member must notify the certificate holder (air carrier) when he or she is not fit for duty and that a certificate holder must also independently evaluate its flightcrew members for fitness for duty; (2) a limit on daily flight duty period (FDP) and flight-time hours that varies depending on the time of day that the FDP begins; (3) cumulative limits on FDPs, flight times, and duty periods; (4) a schedule reliability requirement, which stated that a certificate holder's scheduled FDPs must be at least 95% consistent with actual FDPs; (5) a requirement that a flightcrew member be provided with at least 9 consecutive hours of rest between FDPs, as measured from the time the flightcrew member reaches a suitable accommodation; and (6) credit for employing fatigue-mitigating measures such as split-duty rest and augmentation.

The FAA received over 8,000 comments in response to the NPRM. In response to the comments, the FAA has made a number of changes to the regulatory provisions proposed in the NPRM. These changes include the following:

• The mandatory provisions of the NPRM do not apply to all-cargo operations. Instead, this rule permits all-cargo operations to voluntarily opt into the new flight, duty, and rest limitations imposed by this rule.

• Certificate holders are no longer required to independently verify whether flightcrew members are fit for duty.

• Most of the daily FDP limits have been increased to provide certificate holders with more scheduling flexibility. One of the daily flight-time limits has been decreased to address safety considerations.

• The cumulative duty-period limit has been removed from this rule.

• The schedule-reliability requirement has been largely removed from the final rule. The remaining parts of the schedule-reliability process have been changed to only apply to instances in which a flightcrew member exceeds the FDP and/or flight-time limits imposed by this rule.

• The flightcrew member must now be provided with 10 hours of rest between FDP periods, but that rest is measured from the time that the flightcrew member is released from duty. The rest must provide for an 8-hour sleep opportunity.

• The amount of credit provided for split-duty rest and augmentation has been increased, and changes to the final rule make these credits easier to obtain.

The changes listed above are just some of the amendments that were made to the NPRM in response to the comments. The Discussion of Public Comments and Final Rule section of this preamble contains a discussion of the changes that were made to the NPRM in response to issues raised by the commenters.

A. Statement of the Problem

Fatigue is characterized by a general lack of alertness and degradation in mental and physical performance. Fatigue manifests in the aviation context not only when pilots fall asleep in the cockpit in flight, but perhaps more importantly, when they are insufficiently alert during take-off and landing. Reported fatigue-related events have included procedural errors, unstable approaches, lining up with the wrong runway, and landing without clearances.

There are three types of fatigue: Transient, cumulative, and circadian. Transient fatigue is acute fatigue brought on by extreme sleep restriction or extended hours awake within 1 or 2 days. Cumulative fatigue is fatigue brought on by repeated mild sleep restriction or extended hours awake across a series of days. Circadian fatigue refers to the reduced performance during nighttime hours, particularly during an individual's WOCL (typically between 2 a.m. and 6 a.m.).

Common symptoms of fatigue include:

• Measurable reduction in speed and accuracy of performance,

• Lapses of attention and vigilance,

• Delayed reactions,

• Impaired logical reasoning and decision-making, including a reduced ability to assess risk or appreciate consequences of actions,

• Reduced situational awareness, and

• Low motivation to perform optional activities.

A variety of factors contribute to whether an individual experiences fatigue as well as the severity of that fatigue. The major factors affecting fatigue include:

•

Time of day.

Fatigue is, in part, a function of circadian rhythms. All other factors being equal, fatigue is most likely, and, when present, most severe, between the hours of 2 a.m. and 6 a.m.

•

Amount of recent sleep.

If a person has had significantly less than 8 hours of sleep in the past 24 hours, he or she is more likely to be fatigued.

•

Time awake.

A person who has been continually awake for a long period of time since his or her last major sleep period is more likely to be fatigued.

•

Cumulative sleep debt.

For the average person, cumulative sleep debt is the difference between the amount of sleep a person has received over the past several days, and the amount of sleep he or she would have received with 8 hours of sleep a night.

•

Time on task.

The longer a person has continuously been doing a job without a break, the more likely he or she is to be fatigued.

•

Individual variation.

Individuals respond to fatigue factors differently and may become fatigued at different times, and to different degrees of severity, under the same circumstances.

Scientific research and experimentation have consistently demonstrated that adequate sleep sustains performance. For most people, 8 hours of sleep in each 24-hour period sustains performance indefinitely. Sleep opportunities during the WOCL are preferable because sleep that occurs during the WOCL provides the most recuperative value. Within limits, shortened periods of nighttime sleep may be nearly as beneficial as a consolidated sleep period when augmented by additional sleep periods, such as naps before evening departures, during flights with augmented flightcrews, and during layovers. Sleep should not be fragmented with interruptions. In addition, environmental conditions, such as temperature, noise, and turbulence, impact how beneficial sleep is and how performance is restored.

When a person has accumulated a sleep debt, recovery sleep is necessary to fully restore the person's “sleep reservoir.” Recovery sleep should include at least one physiological night, that is, one sleep period during nighttime hours in the time zone in which the individual is acclimated. The average person requires in excess of 9 hours of sleep a night to recover from a sleep debt.

2

2

Recovery sleep does not require additional sleep equal to the cumulative sleep debt; that is, an 8-hour sleep debt does not require 8 additional hours of sleep.

Several aviation-specific work schedule factors

3

can affect sleep and subsequent alertness. These include early start times, extended work periods, insufficient time off between work periods, insufficient recovery time off between consecutive work periods, amount of work time within a shift or duty period, number of consecutive work periods, night work through one's window of circadian low, daytime sleep

periods, and day-to-night or night-to-day transitions.

3

Rosekind MR.

Managing work schedules: an alertness and safety perspective.

In: Kryger MH, Roth T, Dement WC, editors.

Principles and Practice of Sleep Medicine;

2005:682.

The FAA believes that its current regulations do not adequately address the risk of fatigue. The impact of this risk is greater in passenger operations due to the number of persons placed at risk. Presently, flightcrew members are effectively allowed to work up to 16 hours a day (regardless of the time of 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 regularly exceed the allowable duty periods by conducting flights under part 91 instead of part 121, where the applicable flight, duty and rest requirements are housed. As the National Transportation Safety Board repeatedly notes, the FAA's regulations do not account for the impact of circadian rhythms on alertness. The entire set of regulations is overly complicated, with a different set of regulations for domestic operations, flag operations, and supplemental operations. In addition, these regulations do not consider other factors that can lead to varying degrees of fatigue. Instead, each set of operational rules (

i.e.

those applicable to domestic, flag, or supplemental operations) sets forth a singular approach toward addressing fatigue, regardless of the operational circumstances that may be more or less fatiguing.

4

4

While several of the commenters have claimed that the NPRM proposed a “one-size-fits-all” regulatory structure, the FAA believes this suggestion is misleading. In the NPRM, and in the final rule with regard to passenger-carrying operations, the FAA has eliminated distinctions between domestic, flag, and supplemental operations, but in all of these operations, the rule imposes differing requirements based on the operating environment.

B. National Transportation Safety Board (NTSB) Recommendations

The NTSB has long been concerned about the effects of fatigue in the aviation industry. The first aviation safety recommendations, issued in 1972, involved human fatigue, and aviation safety investigations continue to identify serious concerns about the effects of fatigue, sleep, and circadian rhythm disruption. Currently, the NTSB's list of Most Wanted Transportation Safety Improvements includes safety recommendations regarding pilot fatigue. These recommendations are based on two accident investigations and an NTSB safety study on commuter airline safety.

5

5

On February 2, 2010, the NTSB released a press release summarizing the results of its investigation into the Colgan Air crash of February 12, 2009, which resulted in the death of 50 people. The NTSB did not state that fatigue was causal factor to the crash; however, it did recommend that the FAA take steps to address pilot fatigue.

In February 2006 the NTSB issued safety recommendations after a BAE-J3201 operated under part 121 by Corporate Airlines struck trees on final approach and crashed short of the runway at Kirksville Regional Airport, Kirksville, Missouri. The captain, first officer, and 11 of the 13 passengers died. The NTSB determined the probable cause of the October 19, 2004 accident was the pilots' failure to follow established procedures and properly conduct a non-precision instrument approach at night in instrument meteorological conditions. The NTSB concluded that fatigue likely contributed to the pilots' performance and decision-making ability. This conclusion was based on the less than optimal overnight rest time available to the pilots, the early report time for duty, the number of flight legs, and the demanding conditions encountered during the long duty day.

As a result of the accident, the NTSB issued the following safety recommendations related to flight and duty time limitations: (1) Modify and simplify the flightcrew hours-of-service regulations to consider factors such as length of duty day, starting time, workload, and other factors shown by recent research, scientific evidence, and current industry experience to affect crew alertness (recommendation No. A-06-10); and (2) require all part 121 and part 135 certificate holders to incorporate fatigue-related information similar to the information being developed by the DOT Operator Fatigue Management Program into initial and recurrent pilot training programs. The recommendation notes that this training should address the detrimental effects of fatigue and include strategies for avoiding fatigue and countering its effects (recommendation No. A-06-10).

The NTSB's list of Most Wanted Transportation Safety Improvements also includes a safety recommendation on pilot fatigue and ferry flights conducted under 14 CFR part 91. Three flightcrew members died after a Douglas DC-8-63 operated by Air Transport International was destroyed by ground impact and fire during an attempted three-engine takeoff at Kansas City International Airport in Kansas City, Missouri. The NTSB noted that the flightcrew conducted the flight as a maintenance ferry flight under part 91 after a shortened rest break following a demanding round trip flight to Europe that crossed multiple time zones. The NTSB further noted that the international flight, conducted under part 121, involved multiple legs flown at night following daytime rest periods that caused the flightcrew to experience circadian rhythm disruption. In addition, the NTSB found the captain's last rest period before the accident was repeatedly interrupted by the certificate holder.

In issuing its 1995 recommendations, the NTSB stated that the flight time limits and rest requirements under part 121 that applied to the flightcrew before the ferry flight did not apply to the ferry flight operated under part 91. As a result, the regulations permitted a substantially reduced flightcrew rest period for the nonrevenue ferry flight. As a result of the investigation, the NTSB reiterated earlier recommendations to (1) finalize the review of current flight and duty time limitations to ensure the limitations consider research findings in fatigue and sleep issues and (2) prohibit certificate holders from assigning a flightcrew to flights conducted under part 91 unless the flightcrew met the flight and duty time limits under part 121 or other applicable regulations (recommendation No. A-95-113).

In addition to recommending a comprehensive approach to fatigue with flight duty limits based on fatigue research, circadian rhythms, and sleep and rest requirements, the NTSB has also stated that a Fatigue Risk Management System (FRMS) may hold promise as an approach to dealing with fatigue in the aviation environment. However, the NTSB noted that it considers fatigue management plans to be a complement to, not a substitute for, regulations to address fatigue.

C. Flight and Duty Time Limitations and Rest Requirements Aviation Rulemaking Committee

As part of this rulemaking action, the FAA chartered an aviation rulemaking committee (ARC) on June 24, 2009. The FAA brought together pilots, airlines, and scientific experts to collaborate and develop options for an FAA-proposed rulemaking to help mitigate pilot fatigue. The ARC provided a forum for the U.S. aviation community to discuss current approaches to mitigate fatigue found in international standards (

e.g.,

the International Civil Aviation Organization (ICAO) standard, the United Kingdom Civil Aviation Publication (CAP) 371, and the European Aviation Safety Agency

Notice of Proposed Amendment). The ARC provided its report, a copy of which is in this rulemaking docket, to the agency on September 9, 2009.

D. Congressional Mandate

On August 1, 2010, the President signed the Airline Safety and Federal Aviation Administration Extension Act of 2010 (Pub. L. 111-216). Section 212 of Public Law 111-216 required “the FAA Administrator to issue regulations to limit the number of flight and duty time hours allowed for pilots to address pilot fatigue.” This section, in subsection 212(a)(3), set a deadline of 180 days for the FAA to publish an NPRM and 1 year for the FAA to issue a final rule.

E. Notice of Proposed Rulemaking

On September 14, 2010, the FAA published in the

Federal Register

the Flightcrew Member Duty and Rest Requirements NPRM.

6

The NPRM proposed to amend the FAA's existing flight, duty, and rest regulations applicable to certificate holders and their flightcrew members. The proposal recognized the factors that lead to fatigue in most individuals, and it proposed to regulate these factors to ensure that flightcrew members do not accumulate dangerous amounts of fatigue. Because the proposed rule addressed fatigue factors that apply universally, the proposed requirements eliminated the existing distinctions between domestic, flag and supplemental operations. The proposal also provided different requirements based on the time of day, whether an individual is acclimated to a new time zone, and the likelihood of being able to sleep under different circumstances.

6

75 FR 55852; September 14, 2010.

The NPRM provided for a 60-day comment period, which ended on November 15, 2010. Following publication of the NPRM, the FAA received a number of requests to extend the comment period and to clarify various sections of the preamble, regulatory text, and the Regulatory Impact Analysis (RIA). In response, the agency published two actions in the

Federal Register

.

The first action was a “Notice of procedures for submission of clarifying questions.”

7

Persons asking for clarifications were advised to file their questions to the rulemaking docket by October 15, 2010. The FAA said it would respond by October 22, 2010. On October 22, 2010, the agency filed two response documents to the rulemaking docket: “Response to Clarifying Questions to the RIA” and “Response to Clarifying Questions to the NPRM.”

7

75 FR 62486; October 12, 2010.

The second action was a “Response to requests for a comment period extension.”

8

The FAA provided notice that the comment period would not be extended. The agency's rationale for this decision is outlined in the October 15, 2010 action.

8

75 FR 63424; October 15, 2010.

The FAA received more than 8,000 comment submissions, containing multiple comments on various sections of the preamble and the rule. Many comment submissions also included specific recommendations for changes and clarifications.

III. Discussion of Public Comments and Final Rule

A. Applicability

In the NPRM, the FAA stated that fatigue factors are “universal.”

9

The FAA noted that sleep science, while still evolving, was clear in several important respects:

9

75 FR 55852, 55857 (Sep. 14, 2010).

Most people need eight hours of sleep to function effectively, most people find it more difficult to sleep during the day than during the night, resulting in greater fatigue if working at night; the longer one has been awake and the longer one spends on task, the greater the likelihood of fatigue; and fatigue leads to an increased risk of making a mistake.

Id.

In light of its determination concerning the universal applicability of factors underlying fatigue, the FAA proposed a single set of flight, duty, and rest regulations that would regulate these factors. The proposed regulations would have been applicable to all part 121 domestic, flag, and supplemental operations. The proposed regulations would also have applied to all part 91 flights conducted by part 121 certificate holders, including flights, such as ferry flights, that have historically been conducted under part 91. The NPRM also stated that “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 its rulemaking initiative.”

Id.

The comments received in response to the proposed applicability of this rule and the corresponding FAA responses are included below.

The National Air Carrier Association (NACA) and a number of air carriers operating non-scheduled flights objected to the proposed rule applying to supplemental operations. These industry commenters stated that non-scheduled operations require additional scheduling flexibility because they are fundamentally different from scheduled operations. The industry commenters stated that, unlike scheduled operations, non-scheduled operations provide on-demand operations on behalf of private and government consumers on a timetable that is determined by the consumer. According to the industry commenters, non-scheduled carriers do not have regularly-set schedules that they know months in advance, but are instead called to fly with little advance notice, making it more difficult to plan flightcrew member flight times and rest periods. The industry commenters emphasized that this difficulty is exacerbated by the fact that non-scheduled operations' flight times (especially departure times) are controlled largely by the consumer and not the air carrier.

The non-scheduled industry commenters also asserted that non-scheduled carriers serve remote, sometimes hostile locations, with no established crew bases. Thus, they do not have the same extensive infrastructure that scheduled operations have access to and must deadhead flightcrew members into remote locations in order to be able to swap out flightcrew members during an operation. These commenters emphasized that the certificate holders running non-scheduled operations are largely small businesses that will have difficulty adjusting to the burdens imposed by this rule.

Based on the differences between non-scheduled and scheduled operations, the industry commenters stated that a “one-size-fits-all” approach does not work for non-scheduled operations. The industry commenters stated that the existing regulations governing supplemental operations have existed for over 60 years, and that changing these regulations will adversely affect air security and national defense missions conducted through the use of non-scheduled operations. The commenters emphasized that the existing supplemental flight, duty, and rest regulations ensure aviation safety by containing additional rest requirements that are not a part of this rule. In conclusion, the industry commenters suggested that the FAA either: (1) Retain the existing flight, duty, and rest regulations governing supplemental operations, and/or (2) adopt the alternative proposal put forward by the industry commenters.

In addition to the concerns expressed by non-scheduled air carriers, the Cargo Airline Association (CAA) and a number of air carriers operating all-cargo flights have also objected to the

proposed rule applying to supplemental operations. These industry commenters asserted that, while a passenger-operation accident can result in numerous fatalities, an all-cargo accident would consist primarily of property damage.

The commenters also stated that the cargo industry is composed of both scheduled and on-demand operators, and that it specializes in express delivery services. To effectuate these express delivery services, some all-cargo carriers do not maintain U.S. domicile bases and regularly operate long-haul flights and point-to-point operations outside the United States, traveling across multiple time zones at all hours of the day and night. The industry commenters also stated that all-cargo carriers regularly operate around the world in all directions with extended overseas routings, not with quick overnight turns at foreign destinations. This results in a lower aircraft utilization rate than domestic passenger operations. According to the industry commenters, these types of nighttime and around-the-world operations are the norm for all-cargo carriers.

The all-cargo industry commenters added that, similar to non-scheduled operations, some all-cargo operations also fly to remote, undeveloped, and sometimes hostile locations. According to the industry commenters, these types of operations are driven by the same considerations as similar non-scheduled operations: (1) The schedule is determined primarily by the customer, and (2) there is a lack of infrastructure, which necessitates deadheading in flightcrew members. The industry commenters emphasized that many all-cargo carriers currently provide their flightcrew members with split duty rest while cargo is being sorted at sorting facilities, and that the carriers have invested millions of dollars in high-quality rest facilities. The industry commenters also stated that flightcrew members working in all-cargo operations fly fewer total hours than their passenger-transporting counterparts. The industry commenters concluded by asking the FAA to either: (1) Retain the existing flight, duty, and rest regulations that govern supplemental operations, or (2) adopt the alternative proposal that they have included in their comments.

Conversely, a number of labor groups submitted comments approving of a single flight, duty, and rest standard. These groups stated that they were “pleased that the FAA has acknowledged the current science and recognizes that pilot fatigue does not differ whether the pilot is operating domestically, internationally or in supplemental operations.” The NTSB also expressed support for a single flight, duty, and rest standard, commending the proposed rule for recognizing that “human fatigue factors are the same across [domestic, flag, and supplemental] operations and science cannot support the notion of allowing longer duty hours for certain subgroups.” Numerous individual commenters have also stated that the existing 16-hour duty periods utilized by supplemental operations result in an unsafe amount of fatigue.

In addition to the concerns expressed by the preceding comments, United Air Lines (United) objected to the applicability of this rule to flightcrew members who conduct only part 91 operations on behalf of part 121 certificate holders. United stated that the original reason for the applicability of this rule to part 91 operations on behalf of part 121 certificate holders was to ensure that flightcrew members operating under part 121 did not use part 91 to avoid their flight, duty, and rest requirements under part 121. Because flightcrew members who only conduct part 91 operations cannot conduct part 121 flights, United argued that these flightcrew members should not be subject to this rule.

The FAA also received a number of other questions and concerns about the applicability of this rule. The NetJets Association of Shared Aircraft Pilots (NJASAP) asked how this rule would apply to certificate holders who operate under several different parts of the regulation (

e.g.,

Part 121, Part 135, Subpart 91K). The Regional Airline Association (RAA) asked the FAA to amend this section in order to clarify that this rule applies to “operations directed by the certificate holder under part 91 of this chapter.” In addition, a number of part 135 certificate holders objected to having their operations included in the proposed flight, duty, and rest requirements. These commenters asserted that part 135 operations are fundamentally different from part 121 operations, and thus, these operations should not be subject to the same requirements.

In response to concerns expressed by part 135 certificate holders, the FAA emphasizes that this rule does not apply to part 135 operations. If, in the future, the FAA initiates a rulemaking to change the existing part 135 flight, duty, and rest regulations, the FAA will solicit comments from the affected stakeholders and respond to part-135-specific concerns at that time.

Turning to concerns expressed by United, this rule applies to some part 91 operations because many flightcrew members involved in part 121 operations have routinely used part 91 as a way of exceeding the limits imposed by the part 121 flight, duty, and rest requirements. However, the FAA agrees with United that there is no reason to require flightcrew members who do not fly any part 121 operations to comply with part 121 flight, duty, and rest requirements. Accordingly, the FAA has amended this rule so that it applies to flightcrew members operating under part 91 only if at least one their flight segments is operated under part 117. Flightcrew members operating under part 91 and who do not have any flight segments subject to part 117 (

e.g.

pilots flying only part 91 operations) are not subject to the provisions of this rule.

Turning to concerns expressed by air carriers conducting all-cargo operations, as discussed in the regulatory evaluation, the FAA has determined that this rule would create far smaller benefits for all-cargo operations than it does for passenger operations. Consequently, the FAA is unable to justify imposing the cost of this rule on all-cargo operations. The FAA notes that in the past it has excluded all-cargo operations from certain mandatory requirements due to the different cost-benefit comparison that applies to all-cargo operations. For example, in 2007, the FAA excluded all-cargo operations of airplanes with more than two engines from many of the requirements of the extended range operations (ETOPS) rule because the cost of these provisions for all-cargo operations relative to the potential societal benefit was simply too high.

10

10

72 FR 1808, 1816 (2007).

Based on the cost-benefit analysis of this rule and its past precedent, the FAA has amended this rule to make compliance with part 117 voluntary for all-cargo operations and to allow those operations to continue operating under the existing part 121 flight, duty, and rest regulations if they choose to do so. As such, this rule now allows all-cargo operations to voluntarily determine, as part of their collective bargaining and business decisions, whether they wish to operate under part 117.

In order to prevent manipulation of this voluntary provision, certificate holders who wish to operate their all-cargo operations under part 117 cannot pick and choose specific flights to operate under this rule. Instead, the certificate holders can only elect to operate under part 117: (1) All of their all-cargo operations conducted under contract to a U.S. government agency; and (2) all of their all-cargo operations

not conducted under contract to a U.S. Government agency.

Turning to the objections expressed by non-scheduled passenger operations, the FAA notes that existing regulations set out different flight, duty, and rest standards for part 121 domestic, flag, and supplemental operations. Under these regulations, supplemental operations consist of non-scheduled, all-cargo, and public-charter flights. The existing regulations provide supplemental operations with significant scheduling flexibility because they allow air carriers conducting supplemental operations to schedule unaugmented flightcrew members for 16-hour FDPs

11

and augmented flightcrew members for 30-hour FDPs

12

regardless of the time of day.

13

11

14 CFR 121.505(b). The existing regulations do not regulate FDPs, but instead, regulate the length of duty time. The FAA believes that duty time, as used in the existing regulations, is roughly equivalent to the concept of an FDP because flightcrew members typically begin and end their duty periods at about the same times as an FDP, as defined by this rule, would begin and end.

12

14 CFR 121.523(c).

13

An unaugmented flight contains the minimum number of flightcrew members necessary to safely pilot an aircraft. An augmented flight contains additional flightcrew members and at least one onboard rest facility, which allows flightcrew members to work in shifts and sleep during the flight.

The FAA acknowledges that this rule will significantly impact supplemental passenger operations because it reduces the existing 16- and 30-hour across-the-board limits. This section discusses these reductions and why they are justified in light of the flexibility concerns of non-scheduled passenger operations. The other changes made by this rule that affect supplemental operations are discussed in the other parts of this preamble.

The FAA has decided to impose the same FDP limits on supplemental passenger operations as other part 121 operations because it has determined that the 16-hour unaugmented FDP and the 30-hour augmented FDP permitted by existing supplemental flight, duty, and rest regulations are almost always unsafe for passenger operations.

14

As discussed in other parts of this preamble, a series of studies analyzing the national accident rate as a function of the amount of hours worked have shown that after a person works for about eight or nine hours, the risk of an accident increases exponentially for each additional hour worked.

15

According to these studies, the risk of an accident in the 12th hour of a work shift is “more than double” the risk of an accident in the 8th hour of a work shift.

16

Based on this exponential increase in the accident rate, the FAA has determined that the risk of an accident in the 16th hour of an unaugmented FDP rises to unacceptable levels for passenger operations, especially for shifts that take place during the WOCL. The FAA has also determined, based on the above data, that a 30-hour FDP likewise poses an unacceptably high risk of an accident for passenger operations even with the fatigue-mitigation benefits provided by augmentation.

14

The FAA notes that this rule technically allows an unaugmented flightcrew member to work on a 16-hour FDP if a 14-hour FDP is extended through the use of a 2-hour FDP extension. However, a 14-hour unaugmented FDP is only permitted during periods of peak circadian alertness, and the 2-hour FDP extension is subject to additional safeguards. A 30-hour FDP is never permitted, although a carrier could potentially develop an FRMS that allowed a 30-hour FDP in augmented operations.

15

See

Simon Folkard & Philip Tucker,

Shift work, safety and productivity,

Occupational Medicine, Feb. 1, 2003, at 98 (analyzing three studies that reported a trend in risk over successive hours on duty).

16

Id.

The FAA notes that the Federal Motor Carrier Safety Administration, another DOT agency, has examined studies comparing crash risk to hours worked in certain truck operations. Similar to the Folkard & Tucker study, these studies found a steady rise in crash risk with additional work hours; however, they did not show an increase as rapid as the results reported by Folkard and Tucker. (

See,

for example, Blanco, M., Hanowski, R., Olson, R., Morgan, J., Soccolich, S., Wu, S.C., and Guo, F., “The Impact of Driving, Non-Driving Work, and Rest Breaks on Driving Performance in Commercial Motor vehicle Operations,” FMCSA, April 2011).

In determining that a 16-hour unaugmented and a 30-hour augmented FDP is unsafe for passenger operations, the FAA has also taken into account the fact that aviation-specific data shows that FDPs of this length significantly increase the risk of an accident. A study published in 2003 analyzed the accident rate of pilots as a function of the amount of time that the pilots spent on duty.

17

The study found that:

17

Jeffrey H. Goode,

Are pilots at risk of accidents due to fatigue?,

Journal of Safety Research 34 (2003) 309-13.

[T]he proportion of accidents associated with pilots having longer duty periods is higher than the proportion of longer duty periods for all pilots. For 10-12 hours of duty time, the proportion of accident pilots with this length of duty period is 1.7 times as large as for all pilots. For pilots with 13 or more hours of duty, the proportion of accident pilot duty periods is over five and a half times as high.

18

18

Id.

at 311.

Because studies examining the national accident rate and aviation-specific accidents have both shown that working over 13 hours significantly increases the risk of an accident, the FAA has decided to disallow the 16-hour unaugmented and 30-hour augmented FDPs currently permitted in supplemental passenger operations by subjecting supplemental passenger operations to the same FDP limits as other part 121 passenger operations. The effect that other provisions of this rule will have on supplemental passenger operations and the reasons why the FAA has chosen to adopt these provisions are discussed in the corresponding portions of this preamble.

The FAA understands that including supplemental passenger operations in this rule will take away a portion of the scheduling flexibility currently enjoyed by non-scheduled passenger operations. However, this rule contains a number of provisions that ease the burden of current rules on non-scheduled operations in a way that does not decrease safety.

The most significant way in which this rule eases the burden of existing rules on supplemental passenger operations is the elimination of compensatory rest requirements. Under the existing rules, a pilot who flies an aircraft for over 8 hours in a supplemental operation must receive a compensatory rest period that is 16 hours or longer (depending on whether the flight was augmented) at the conclusion of his or her duty day. This compensatory rest requirement imposed a significant burden on supplemental passenger operations because pilots had to be provided with at least 16 hours of rest simply for flying for 9 hours. In addition, the FAA found that by focusing on flight time and not on FDP, the existing supplemental flight, duty, and rest regulations led to counterintuitive results in which long 16- and 30-hour FDPs were permitted with only a 9-hour required rest period, but a 9-hour flight time with a relatively-short FDP resulted in a 16- to 18-hour required rest period.

In order to address the concerns discussed in the preceding paragraph and because there was an absence of scientific data showing that rest periods providing for more than 8 hours of sleep were always necessary to combat transient fatigue, this rule eliminates the existing compensatory rest requirements for supplemental passenger operations. The removal of this additional rest requirement will allow certificate holders conducting non-scheduled passenger operations to fly augmented international operations, including those that are under contract with the United States Government, without having to provide flightcrew members with an additional 6 hours of rest at the end of the operation. In addition, to ensure that certificate holders

conducting supplemental operations are able to provide critical services in support of government operations, this rule also contains an Emergency and Government Sponsored Operations section that allows operations performed in accordance with a government contract to exceed this rule's flight, duty, and rest limits in certain situations.

Another example of a provision in this rule that benefits supplemental passenger operations is the increase of the flight-time limits for augmented and unaugmented flights. This increase will allow certificate holders conducting supplemental operations to schedule unaugmented flightcrew members for 9 hours of flight time during peak circadian times after providing them with only 10 hours of rest. The existing regulations would require certificate holders conducting supplemental operations to provide their flightcrew members with 18 hours of rest after an operation involving 9 hours of unaugmented flight time.

In addition to including provisions that ease the burden of the maximum-FDP-limit reduction on supplemental operations, the FAA has also made adjustments to this rulemaking in response to concerns raised by air carriers (certificate holders) conducting non-scheduled passenger operations. Thus, the FAA has: (1) Increased the unaugmented and augmented FDP limits in Tables B and C, (2) increased the amount of the split-duty credit and made that credit easier to obtain, and (3) largely eliminated the scheduling reliability requirements that were proposed in the NPRM. All of these adjustments were made, at least in part, in response to the concerns raised by certificate holders conducting non-scheduled operations, and they should significantly ease the burden of this rule on these types of operations. In making these adjustments, the FAA has, where possible, incorporated into this rule portions of the alternative proposal put forward by the industry commenters who conduct non-scheduled passenger operations.

While air-carrier business models for passenger operations may differ, the factors that give rise to unsafe levels of fatigue are the same for each flightcrew member involved in these operations. A flightcrew member working a 16 or 30-hour FDP as part of a supplemental passenger operation will not be less tired simply because he or she is working in a supplemental type of operation instead of a domestic type operation. To account for this fact and ensure that fatigue is limited to safe levels, the FAA has decided to set a single flight, duty, and rest standard for all part 121 certificate holders conducting passenger operations. The FAA is sympathetic to the fact that supplemental passenger operations require additional flexibility that is not required by other business models and as a result, may bear a disproportionate cost of this rule. To ameliorate the cost of this rulemaking on supplemental operations, this rule contains supplemental-friendly provisions and adjustments that do not have an adverse effect on safety. However, the flexibility and cost-savings required by supplemental passenger operations can no longer be used to justify 16 and 30-hour FDPs for these operations because scientific studies have shown that FDPs of this length significantly increase the risk of an aviation accident that could injure passengers onboard an aircraft.

In response to NJASAP's question, the FAA notes that this rule applies to all part 121 certificate holder passenger operations and all part 121 and part 91 operations where an FDP includes at least one flight segment conducted under part 117. Thus, if a flightcrew member flies one or more segments of an FDP in passenger-carrying operations, but also flies a part 91 positioning flight as part of that FDP, the part 91 flight would have to be conducted under part 117. Parts 135 and 91K have their own set of flight, duty, and rest requirements that will continue to apply to those operations.

B. Definitions

The NPRM included definitions specific to this part. The definitions adopted in this rule are in addition to those in §§ 1.1 and 110.2. In the event that terms conflict, the definitions in part 117 control for purposes of the flight and duty regulations adopted in this rule. The section below provides a discussion of the specific definitions used in the final rule.

1. Acclimated

The FAA proposed to define “acclimated” as a condition in which a flightcrew member has been in a theater for 72 hours or has been given at least 36 consecutive hours free from duty.

The Airline Pilots Association (ALPA), the Allied Pilots Association (APA), the Coalition of Airline Pilots Associations (CAPA), and the Independent Pilots Association (IPA) stated that acclimated should mean a condition in which a flightcrew member has been in a new theater for the first 72 hours since arriving and has been given at least 36 consecutive hours free from duty during the 72 hour period. Also, the Flight Time Aviation Regulation Committee and Flightcrew Representatives (representing labor) (Flight Time ARC) supported the suggested, revised definition. These commenters noted that according to established science, three consecutive local nights' rest is required to become acclimated. They also noted that Cap 371 provides for three consecutive local nights rest to become acclimated.

NACA, North American Airlines (NAA), World Airways, and Atlas Air Worldwide Holdings, Inc. (Atlas) contended that the proposed definition should be revised to allow 30 consecutive hours free from duty instead of 36 hours.

NACA and NAA said that it is important in regulations controlling both schedules and operations that the extended rest periods be consistent across domestic and international operations. NACA, NAA, and World Airways said that the FAA's proposed acclimation time should be changed to reflect the agency's proposed 168-hour look-back rest period of 30 hours. (See § 117.25(b)). These commenters believed that 30 hours is appropriate because any further time to acclimate may preclude flightcrew members from returning to their home base as flightcrew members, which becomes important in commercial operations where flight hours are guaranteed.

World Airways said that its recommendation of 30 hours free from duty is within the range the ARC discussed as sufficient for acclimation to occur. Atlas said that there is no scientific justification for selecting 36 as the minimum number of consecutive hours. Atlas further commented that subsequent to publication of the NPRM, the FAA clarified its definition of acclimated, stating that the computation is based on actual, not scheduled, operations. Atlas believed that this clarification needs to be incorporated into the definition as follows: “Time in theater begins upon block in at an airport more than four time zones from the previous acclimated location.”

In response to the above comments, the FAA is not persuaded by the argument that acclimation only can occur when the flightcrew member is in a new theater for 72 hours and has been given 36 consecutive hours free from duty during that period. The Flight Time ARC did receive information from the sleep specialists that an individual attempting to acclimate to a new time zone will adjust his or her clock approximately one hour per day for each hour of time zone difference. 75 FR 55852, 55861 (Sep. 14, 2010). The ARC, however, concluded that, based on its collective experience, acclimation can

occur more quickly if the flightcrew member manages the sleep opportunity appropriately. The ARC also concluded that a flightcrew member can become acclimated by either receiving three consecutive physiological nights' rest or a layover rest period of 30 to 36 consecutive hours. The ARC universally rejected the premise that, because the United Kingdom is 5 time zones away from the eastern coast of the United States, it would take between five and nine days to acclimate to a European time zone. The commenters did not present new information that was not considered during the ARC. There is no compelling information or argument that refutes the body of experience represented in the ARC and the FAA declines to amend this definition as suggested.

The FAA also declines to accept the suggestion that a 30 hour rest period is adequate to acclimate compared to the 36 hour period proposed in the NPRM. The ARC recommended a 30 to 36 hour layover rest period. The FAA decided to propose the 36-hour rest period because it provides for one physiological night's rest and then opportunity for a shorter rest period. The agency finds that the more conservative approach is appropriate to provide the more meaningful opportunity for rest.

United Parcel Service Co. (UPS) commented that administrative duties should be exempted or removed from the scope of flight duty when determining flightcrew member acclimation. UPS further commented that if flightcrew members revised company manuals or navigation charts during a duty free period (layover) or prior to report time, it is possible that the flightcrew members would not satisfy the definition of being acclimated or could drive different FDP limits based on when they claim their duties started.

In response to UPS' concern, to acclimate a flightcrew member under this rule, the certificate holder must provide the required rest and cannot assign any duties during the rest period. Similarly, it is the flightcrew member's responsibility to take advantage of the period and rest accordingly. If a flightcrew member independently decides to perform administrative type duties during this time period, as described by the commenter, the flightcrew member is considered acclimated regardless of whether he or she actually rested during this time period.

2. Acclimated Local Time

While the FAA did not propose this term, ALPA, CAPA, Flight Time ARC, and the Southwest Airlines Pilots Association (SWAPA) suggested including this term. They suggested that acclimated local time means the local time at the location where the pilot last had greater than 36 hours free from duty in the first 72 hours in theater. IPA recommended the same definition, except it replaced the term “pilot” with “flightcrew member.” In support of their recommendation, ALPA, CAPA, and Flight Time ARC said this new definition would provide an unambiguous time for applying the definition of “nighttime duty period” and for entering the FDP and flight time limit tables. They further said that the wording in the NPRM concerning acclimated or home base time left many questions of interpretation. For example, a USA-based pilot who acclimates in Europe and then subsequently flies to Japan would, under the current NPRM wording, enter the tables at home-base time instead of Europe time. The commenters also stated that the exact location of acclimation must be known to determine future loss of acclimation. Under their proposal, the commenters contended that both the tables and the definition of nighttime flight duty period would use the new term, “acclimated local time.”

The FAA has accommodated these concerns by changing the heading of Tables A, B, and C to reflect acclimated time. In addition, the FAA clarifies that a flightcrew member is considered acclimated based on which rest he or she was given first. If the flightcrew member completes 36 consecutive hours of rest prior to being in theater for 72 hours, then the flightcrew member is acclimated at the time that the 36-hour period ends and he or she is acclimated at the location that the rest occurred.

3. Airport/Standby Reserve

According to the proposed definition, “Airport/standby reserve” means a defined duty period during which a flightcrew member is required by a certificate holder to be at, or in close proximity to, an airport for a possible assignment.

UPS said that the FAA's definition of airport/standby reserve is too vague and is open to interpretation. It recommended revising the definition to mean an assignment that requires a flightcrew member to be in a position to begin preflight activities following notification of an assignment without requiring additional travel time to arrive for the operation.

NACA and NAA did not believe that the definition is necessary because airport/standby reserve is an assignment within an FDP. If the term is adopted, NACA and NAA recommended that the term be defined as a duty period during which a flightcrew member is required by a certificate holder to be at, or in close proximity to, an airport for a possible assignment, and to show at the departure gate or aircraft within one hour.

Atlas contended that the FAA did not clarify the relationship of airport/standby reserve and short-call reserve in its clarification document published after the NPRM. This commenter noted that according to the FAA's clarification, airport/standby reserve and short-call reserve are mutually exclusive. Atlas said that the distinction was explained as whether or not the flightcrew member is “at the airport or in close proximity to the airport.” If at or in close proximity to the airport, a flightcrew member is deemed to be on airport/standby reserve, this suggests that a flightcrew member on short-call reserve in a hotel room near an airport could be deemed to be on airport/standby reserve. Atlas believed the distinction is important because it determines if the reserve is counted as part of the FDP. Atlas argued that airport/standby reserve means a defined duty period at an on-airport facility to which a flightcrew member has been required to report by a certificate holder immediately following assignment (usually within one hour) and at which no rest facilities are available or no rest is scheduled.

The FAA agrees that the proposed terminology could be confusing and has modified the term to mean a duty period during which a flightcrew member is required by a certificate holder to be at an airport for possible assignment.

4. Augmented Flightcrew

The NPRM defined “augmented flightcrew” as a flightcrew that has more than the minimum number of flightcrew members required by the airplane type certificate to operate the aircraft to allow a flightcrew member to be replaced by another qualified flightcrew member for in-flight rest.

A number of industry commenters objected to the fact that the proposed augmented flightcrew definition did not allow a flight engineer to augment a pilot. These commenters stated that adding a flight engineer to a flightcrew has a number of safety benefits. The commenters added that their inability to augment with a flight engineer would result in three-seat aircraft being retired prematurely, which would raise the costs of this rule.

This rule does not allow augmentation with a flight engineer for

safety reasons. As discussed more fully in other parts of this preamble, an augmented flight provides fatigue-mitigation benefits because it contains more than the minimum number of pilots, and the additional pilots allow the flightcrew to obtain in-flight rest by working in shifts and replacing each other at the aircraft controls. However, a flight engineer is not qualified to manipulate the flight controls and pilot an aircraft and is generally prohibited from occupying a pilot duty station. Because a flight engineer who is not qualified as a pilot cannot occupy a pilot duty station, an engineer cannot replace a pilot at the aircraft controls. As such, this rule does not allow a pilot to be augmented with a flight engineer.

With regard to three-seat aircraft, even though this rule does not give augmentation credit for a flight engineer to augment a pilot, it does not prohibit flight engineers from working on three-seat aircraft. All this rule states is that, without additional pilots, a flightcrew that has a flight engineer would not be considered augmented. Because a flight engineer could still work on a three-seat aircraft under the terms of this rule, the FAA does not believe that the above limitation on augmentation would lead to the premature retirement of three-seat aircraft.

5. Calendar Day

The NPRM proposed that a “calendar day” means a 24-hour period from 0000 through 2359.

Alaska Airlines said that while the FAA contends in its clarifying document that the calendar day for the flightcrew member's home base should be sufficient, calendar day as defined in the NPRM does not provide this clarification. Alaska Airlines instead recommended that a calendar day means a 24-hour period from 0000 through 2359 local time at the flightcrew member's home base.

Boeing Commercial Airplanes (Boeing) suggested a similar definition to address frequent transitions between time zones. Boeing further stated that rules such as the ones proposed in the NPRM are implemented in computerized optimization systems for crew scheduling, and as a result, ambiguities in the rules can lead to different interpretations.

The FAA has amended this term to include reference to Coordinated Universal Time or local time. This is consistent with the definition of calendar day in section 121.467(a) (Flight attendant duty period limitations and rest requirements: Domestic, flag, and supplemental operations).

6. Consecutive Night Duty Period

The FAA did not propose a definition for this term; ALPA, CAPA, SWAPA, Flight Time ARC, and Federal Express Air Line Pilots Association, International (FedEx ALPA) said that the proposed § 117.27 limits consecutive nighttime flight duty periods to three periods. To avoid confusion in applying § 117.27, the commenters believed that the term “consecutive night duty period” should be defined. They recommended that consecutive night duty period mean two or more night flight duty periods that are not separated by at least a part § 117.25 rest between the duty periods that encompasses a physiological night's sleep (1 a.m. to 7 a.m. at home base or acclimated local time). IPA suggested the adoption of a similar definition.

The FAA declines defining the term consecutive night flight duty period and instead includes a provision in § 117.27 to address the commenters' concerns. Section 117.27 now specifies that the consecutive-night provisions apply to consecutive flight duty periods that infringe on the WOCL. The WOCL is defined later in this section.

7. Deadhead Transportation

As proposed, “deadhead transportation” means transportation of a flightcrew member as a passenger, by air or surface transportation, as required by a certificate holder, excluding transportation to or from a suitable accommodation.

Air Transport Association of America, Inc. (ATA) suggested removing the word “passenger” from the definition because the FAA should not assume that deadhead transportation should be limited to flightcrew members characterized as passengers when not all carriers carry passengers. Similarly, UPS commented that the proposed definition fails to address deadhead transportation on aircraft not configured for passenger operations (

i.e.

, all-cargo aircraft). UPS suggested that the FAA revise the definition as follows: “Deadhead transportation means transportation of a flightcrew member as a passenger, non-assigned flight deck occupant, or other additional flightcrew member by air or surface transportation, as required by the certificate holder, excluding transportation to or from a suitable accommodation.”

The FAA agrees with the above commenters and has modified the term to apply to the transportation of a flightcrew member as a passenger or a non-operating flightcrew member. The FAA has also added two clarifying statements to the definition. The first is that all time spent in deadhead transportation is duty and is not rest. This provision was copied from proposed § 117.29 Deadhead transportation. Secondly, the FAA includes in this definition that deadhead transportation is not considered a segment for purposes of determining the maximum flight duty period in Table B.

8. Duty

The NPRM defines “duty” to mean any task, other than long-call reserve, that a flightcrew member performs on behalf of the certificate holder, including but not limited to airport/standby reserve, short-call reserve, flight duty, pre-and post-flight duties, administrative work, training, deadhead transportation, aircraft positioning on the ground, aircraft loading, and aircraft servicing.

Industry commenters largely rejected the proposition that short-call reserve be considered duty. They argued that this classification is inappropriate and unrelated to effective fatigue mitigation. They also stated that the only requirement or company task a pilot has on short call reserve is to be available to be contacted. Otherwise, the pilot is free to do what he or she wants and plans the day to take advantage of rest opportunities or any other activities as he or she desires, just as a lineholder would. Industry also largely objected to the classification of short-call reserve as duty. ALPA, CAPA, FedEx ALPA, SWAPA and APA all commented favorably on short call reserve being considered duty.

As stated in the NPRM, the FAA's rationale for this proposal was that while on short-call reserve, the flightcrew member can expect that he or she will not receive an opportunity to rest prior to commencing an FDP. Additionally, the flightcrew member is required to limit his or her action sufficiently so that he or she can report to the duty station within a fairly short timeframe. The FAA believed that this time should be accounted for under the cumulative limitations and therefore proposed that short-call reserve be considered duty.

However, the commenters argued that a flightcrew member on short-call reserve has the same predictable rest and sleep opportunities as a regularly-scheduled lineholder and that being on reserve cannot entail significant workload and thereby be fatiguing. The FAA accepts that while reserve cannot be categorized as “rest” it does not necessarily fit squarely with being considered duty either. As the commenters correctly pointed out, time

spent on short-call reserve is simply not as fatiguing as time spent on an FDP. Therefore, this rule no longer includes short-call reserve as duty.

ATA, NACA, UPS, United, Continental Airlines, Inc. (Continental), Alaska Airlines, NAA, Delta Air Lines (Delta), and World Airways stated that the proposed definition of duty is too broad, operationally unworkable, and not clear regarding accountability. They objected to the inclusion of the terms “any task,” “on behalf of the certificate holder,” and “administrative work” in the definition. ATA provided the example of a professional pilot who routinely performs tasks such as refreshing outdated publications, watching videos for recurrent training, and reading and responding to emails. Because a flightcrew member can perform these tasks at a time and place of his or her choosing, the commenters argued that a certificate holder has no way of knowing or controlling the pertinent flightcrew member conduct.

ATA asserted that the inclusion of administrative but not labor-related work in the definition does not make sense because no material distinction exists between administrative tasks performed on behalf of management and similar tasks performed on behalf of labor.

Alaska Airlines said that the FAA in its clarifying document noted that the term “administrative work” is readily understandable; however, the commenter noted that the term's role in fatigue and in the context of the regulation is vague. The commenter believed that the term needs further clarification and should only include work associated with flight operations.

Continental and United said that the definition of duty considers administrative work in the same way that it assesses flight duty. They contend that this is inappropriate when applied to the cumulative duty restrictions discussed in proposed § 117.23.

Alaska Airlines suggested that the FAA make clear in the final rule that duty only includes activities that the carrier can directly control. ATA recommended clarifying the definition by replacing the phrase “on behalf of the certificate holder” with “directed by a certificate holder on company property.” NACA, UPS, Delta, and World Airways suggested revising the definition of duty to mean “any task, other than long-call and short-call reserve, that is directed by the certificate holder * * *” NAA believed the term “on behalf of the certificate holder” should be replaced with “is assigned by the certificate holder.”

UPS contended that the FAA must address the issue of management pilot duty and suggested that management pilot duty include all time spent during company business-related meetings and other business-related activity conducted on company property. UPS argued that if this is not addressed, management pilots will effectively become non-flying pilots.

NACA, World Airways, and NAA recommend deleting the term “administrative work” because it is too vague and inclusive of issues that have nothing to do with direction by the certificate holder or FDP fatigue mitigation. Continental and United recommended that the FAA remove administrative activity from the definition and add a provision to the regulation that applies administrative duty to specific FDPs. ATA and Delta request that if the term is kept in the definition, the FAA should clarify that the definition treats management and labor-related administrative work in the same way.

In response to the above comments, the definition of duty has been further modified by replacing “on behalf” of the certificate holder with “as required” by the certificate holder. This addresses the certificate holders' concern that the administrative work accomplished by the flightcrew member is work that he or she is required to do, and appropriately included as duty. Lastly, the FAA agrees that performance of administrative management work is not distinguishable from any other type of administrative work, and therefore administrative management work is included in the term “administrative work” under this definition.

9. Duty Period

As proposed, “duty period” means a period that begins when a certificate holder requires a flightcrew member to report for duty and ends when that crew member is free from all duties.

UPS said that defining the end of the duty period as “* * * free from all duties” is too ambiguous and uncertain since a certificate holder cannot control voluntary duties that a flightcrew member may decide to accomplish at the end of his or her FDP. UPS suggested that the definition be changed so that the end of the duty period occurs when the flightcrew member is “* * * released from all company directed duties.” In light of the changes that have been made to this rule, the FAA has determined that it is no longer necessary to define this term, and therefore the proposed definition is withdrawn.

10. Early Start Duty

The NPRM did not propose a definition for this term, however, APA recommended including the term, which would mean an FDP that commences in the period 0500 to 0659 home base time or where acclimated. The FAA does not agree that adopting this term is necessary or useful.

11. Fatigue

Fatigue as proposed means physiological state of reduced mental or physical performance capability resulting from lack of sleep or increased physical activity that can reduce a flightcrew member's alertness and ability to safely operate an aircraft or perform safety-related duties.

ATA commented that the proposed definition of fatigue is inconsistent with ICAO's proposed definition. ATA noted that ICAO proposes to define fatigue as “a physiological state of reduced mental or physical performance capability resulting from sleep loss or extended wakefulness, circadian phase, or workload (mental and/or physical activity) that can impair a crew member's alertness and ability to safely operate an aircraft or perform safety related duties.” ATA recommended adopting the ICAO definition because it captures the fatigue-inducing effects of the interaction of sleep loss, circadian phase, and workload, and provides a scientific basis for fatigue risk management.

In response to ATA's comments, the FAA notes that ICAO has not finalized its definition of fatigue, and the proposed definition may be subject to change. At this point, it is not prudent for the FAA to include a term that ultimately may be changed or not even adopted. Therefore, the FAA is adopting the definition of fatigue that was proposed.

12. Fit for Duty

As proposed, the definition of “fit for duty” means physiologically and mentally prepared and capable of performing assigned duties in flight with the highest degree of safety.

UPS commented that including “* * * duties in flight with the highest degree of safety” in the definition of “fit for duty” is not practical and too subjective. UPS further stated that it is unrealistic for any human to be at their “highest” level of performance during every possible FDP and suggests replacing “* * * highest degree of safety” with “* * * capable of performing duties that assure flight safety.”

The FAA does not agree with UPS because every flightcrew member on

every flight should be prepared and capable of performing the assigned duties at the highest degree of safety. Accordingly, the FAA has adopted the proposed definition in the final rule.

13. Flight Duty Period

The NPRM defines “flight duty period” to mean 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 would include 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.

ATA, UPS, World Airways, NAA, NACA, Delta, and Alaska Airlines objected to including all flight training in a flight simulator or training device in the definition of FDP. ATA, Delta, and Alaska Airlines commented that there is no scientific basis for such inclusion, and all seven commenters said there is no inherent safety basis for this decision. Alaska Airlines and Delta added that with simulator time included in the FDP, pursuant to section 117.27, flightcrew members would be unable to participate in simulator training on more than three consecutive nights. ATA further commented that there is no basis for including travel to a training site in the FDP unless the travel occurs before flight time.

ATA, Delta, and Alaska Airlines recommended that the FAA revise the proposed definition to state that only training and flight simulator time conducted before a flight without an intervening rest period is counted as part of the FDP. UPS said that it supports counting time spent in a simulator or flight training device as part of an FDP only if this time immediately precedes flight duty without an intervening rest period. UPS believed that there is an unintended consequence of treating simulator and flight training device training as part of an FDP, regardless of when the training occurs. That is, the practice of providing additional training to a flightcrew member who requests that training will be discontinued; thereby, affecting flight safety.

NACA, NAA and World Airways commented that an FDP “must involve a flight, or at a minimum, movement of an aircraft where the public is at risk where an aircraft accident potential immediately exists.” They suggested revising the proposed definition to add the following phrases: “but not limited to” and “whenever these duties are performed in conjunction with duties involving flight without an intervening rest period.” This would result in a definition that reads: “* * * A flight duty period includes, but is not limited to, deadhead transportation * * * and airport/standby reserve whenever these duties are performed in conjunction with duties involving flight without an intervening rest period.”

The FAA clarifies that an FDP begins when the flightcrew member reports for duty and will include the duties performed by the flightcrew member on behalf of the certificate holder that occur before a flight segment or between flight segments without a required intervening rest period. The FDP ends when the aircraft is parked after the last flight and there is no intention for further aircraft movement by the same flightcrew member. Included in the FDP are any of the following actions if they occur before a flight segment or between flight segments without an intervening rest period: deadhead transportation, training conducted in an aircraft or flight simulator, and airport/standby reserve. Time spent in a flight training device that takes place after the aircraft has been parked after the last flight has been eliminated from this definition. For purposes of calculating the pertinent part 121 flight, duty, and rest limits, the FAA considers time spent on an FDP to be duty.

14. Flight Time

The NPRM did not propose a definition for this term; however, APA, ALPA, CAPA, FedEx ALPA, SWAPA, and Flight Time ARC recommended adding a definition for flight time to begin when the aircraft first moves with the intention of flight. These commenters argued that this term in § 1.1 is defined as the moment the aircraft first moves under its own power. However, the pilot in command (PIC) and required flight deck flightcrew members are always responsible and must perform their duties when the aircraft is moved by a tug or sits on a hardstand and that time should count, according to the commenters, as flight time if the movement is with the intention for flight. They also state that this definition would be consistent with Annex II, Subpart Q to the Commission of the European Communities Regulation No. 3922/91, as Amended (EU OPS subpart Q) which defines flight time as the time between an airplane first moving from its parking place for the purpose of taking off until it comes to rest on the designated parking position and all engines or propellers are stopped.

IPA suggested that the proposed definition be revised as follows: “Flight time means when the aircraft first moves with the intention of flight until it comes to rest on the designated parking position.”

The FAA declines the commenters' recommendations. Numerous other regulations are based on the definition of flight time that is set out in § 1.1. Changing this term solely in the context of the flight and duty regulations would make this rule more complicated than necessary and create confusion between this rule and other regulations.

15. Late Finish Duty

The NPRM did not propose a definition for this term; however, APA said a definition of “late finish duty” is needed to provide for fatigue mitigation caused by consecutive early starts and late finishes. APA suggested that the term be defined as an FDP that ends during the period of 0000-0159, home base time or where acclimated. The FAA does not find that it is necessary or useful to adopt this term.

16. Night and Nighttime

The FAA did not propose definitions for either of these terms; however, NACA and NAA said that the FAA's intent for using the term “night” in the NPRM should be defined. If it is not defined, the commenters said that the FAA should always use the term “physiological night” in all text in the preamble and in the final rule. They recommended defining night to mean “the period between 0100 and 0700 at the flightcrew member's designated home base or acclimated location.” The commenters noted that this would make the term compatible with the definition of “physiological night's rest.”

Atlas said that the final rule should contain a definition of the terms “night” and “nighttime,” so as to make the meanings comparable to references in proposed § 117.27, as well as to the definition of “physiological night's rest.” It noted that while “physiological night's rest” refers to the hours of 0100 and 0700, the term “nighttime” referenced in proposed § 117.27 is interpreted to refer to operations that commence between 2200 and 0500, according to page 22 of the FAA's clarification document. Both definitions, the commenter said, differ from the definition of “night” in 14 CFR. § 1.1, which is the time between the end of evening civil twilight and the beginning of morning civil twilight, as published in the American Air Almanac, converted to local time.

The FAA declines to adopt these terms. The FAA uses the word “physiological night's rest” when it is appropriate. In addition, please refer to the FAA's response to the term “Consecutive Night Duty Period.”

17. Nighttime Flight Duty Period

The FAA did not propose a definition for this term; however, APA, ALPA, CAPA, FedEx ALPA, SWAPA, and Flight Time ARC said that to avoid confusion when conducting consecutive nighttime operations under § 117.27, the FAA should define “nighttime flight duty.” They suggested that this term be defined to mean a duty period during which any part of the duty period falls within the home base or acclimated local time period of 0200 to 0459.

IPA suggested a definition of “nighttime flight duty” as follows: “a duty period during which any part of the duty period falls within the home base or acclimated local time period of 0200 to 0459.”

Please see response to “6. Consecutive Night Duty Period.” The FAA does not find it necessary to define the term as suggested.

18. Nighttime Operations

ATA said that the FAA should add a new definition of nighttime operations for purposes of part 117 to be consistent with the agency's document that responds to clarifying questions to the NPRM. The commenter believed that the definition should include operations that commence between 10 p.m. and 5 a.m. The FAA has clarified the pertinent provisions of section 117.27, and as such, it finds that a separate definition for nighttime operations is unnecessary.

19. Report Time

The NPRM defined “report time” as the time that the certificate holder requires a flightcrew member to report for a duty period. The FAA did not receive any comments with regard to this definition, and as such, this rule adopts the proposed definition.

20. Reserve Availability Period

The NPRM defined “reserve availability period” to mean a duty period during which a certificate holder requires a reserve flightcrew member on short call reserve to be available to receive an assignment for a flight duty period.

NACA objected to the premise that short call reserve is duty. It noted that ARC discussions were clear that short call reserve, which is a period of time when the only responsibility the crew member has is to answer the phone, is not a fatiguing event, and thus, it should not constitute duty for cumulative-duty purposes. NACA suggested revising the proposed definition so that it reads “reserve availability period means a period of time during which a certificate holder requires a reserve flightcrew member on short call reserve to be available to receive an assignment for a flight duty period.”

As discussed in other portions of this preamble, cumulative-duty-period limits have been removed from this rule. This removal addresses the concern expressed in NACA's comment as short-call reserve is no longer subject to the cumulative-duty-period limits.

21. Reserve Duty Period

The NPRM defined “reserve duty period” as the time, applicable only to short call reserve, from the beginning of the reserve availability period to the end of an assigned flight duty period. In light of the changes that were made to the reserve status section, this definition is no longer necessary, and it has been removed from the final rule.

22. Reserve Flightcrew Member

The NPRM defined “reserve flightcrew member” as a flightcrew member who a certificate holder requires to be available to receive an assignment for duty. The FAA did not receive any comments with regard to this definition, and as such, this rule adopts the proposed definition.

23. Rest Facility

The NPRM defines “rest facility” as a bunk, seat, room or other accommodation that provides a flightcrew member with a sleep opportunity. In determining what constitutes each specific type of rest facility, the FAA took note of a comprehensive evaluation of available onboard rest facilities, which was conducted by the Dutch government in 2007. Simons M, Spencer M.,

Extension of Flying Duty Period By In-Flight Relief.

Report TNO-DV2007C362. TNO, Soesterberg, Netherlands, 2007 (TNO Report). The TNO Report was created in order to provide science-based advice on the maximum permissible extension of the FDP related to the quality of the available onboard rest facility and the augmentation of the flightcrew with one or two pilots.

As defined in the NPRM, “Class 1 rest facility” means a bunk or other surface that allows for a flat sleeping position and is located separate from both the flight deck and passenger cabin in an area that is temperature-controlled, allows the flightcrew member to control light, and provides isolation from noise and disturbance. “Class 2 rest facility” means a seat in an aircraft cabin that allows for a flat or near flat sleeping position; is separated from passengers by a minimum of a curtain to provide darkness and some sound mitigation; and is reasonably free from disturbance by passengers or flightcrew members. “Class 3 rest facility” means a seat in an aircraft cabin or flight deck that reclines at least 40 degrees and provides leg and foot support.

ATA stated that the proposed rule was overly restrictive with respect to the facilities it deemed sufficient for conferring credit for in-flight rest on augmented flights. ATA, NACA, and UPS criticized the proposal for over-relying on the TNO Report. ATA and UPS emphasized that the TNO Report is only a single study that has not been adopted by any regulatory body. NACA asserted that “the TNO report is more than 10 years old and was proposed by a limited number of scientists and based upon limited studies.” NACA added that “[i]n the ARC discussions, Dr. Hursh stated that his [SAFTE/FAST] models value sleep on a bunk at approximately 66 to 80 percent of normal sleep.” APA stated that the TNO Report has not been validated in the aviation context.

ATA stated that the proposed rule's adoption of the TNO report would have substantial adverse impacts on U.S. carriers because it would deviate from the less-restrictive criteria for rest facilities that the FAA set out in Advisory Circular (AC) 121-31. This is because, ATA asserted, many air carriers have invested a substantial amount of money developing rest facilities that comply with the guidelines set out in AC 121-31, and these facilities would not satisfy the more stringent criteria for rest facilities set out in the TNO Report. ATA noted that although it supports the concept of credit for in-flight rest, it does not support rest facility criteria derived from the TNO Report. It further noted that “the FAA should continue to accept AC 121-31 standards for all aircraft built prior to the imposition of the new rule, the use of current business class seats as Class 2 facilities and for credit being afforded to all-cargo aircraft that provide a `horizontal sleep opportunity' to flightcrew members. Rest facilities in use today built to AC 121-31 standards are operationally validated as a means of fatigue mitigation that FAA has accepted and there is no evidence that such facilities should not be used in the future.” To minimize costs, ATA recommended that “[a]t a minimum, the guidance in AC 121-31 should remain in effect for all aircraft built prior to the implementation date of the NPRM and

a significant period allowed for newer aircraft to conform to any new standards.”

UPS added that most air-cargo carriers would be unable to install rest facilities needed for the augmentation credit because air-cargo aircraft do not have passenger cabins. UPS asserted that it would be unable to install the rest facilities required by this rule in approximately 18% of its total fleet.

The existing advisory circular that provides guidance for onboard rest facilities (AC 121-31) was written in 1994 based on the science that existed at that time. The TNO Report, on the other hand, was written in 2007, and it provides the most comprehensive evaluation available to date of onboard rest facilities. This report may not yet have been adopted by other regulatory bodies because it is only four years old, and significant regulatory changes usually take place over a longer period of time. When drafting this rule, the FAA found the TNO Report to be more persuasive than AC 121-31 because the TNO Report performed a comprehensive evaluation of rest facilities, and because it was based on more recent scientific data than AC 121-31.

The FAA understands that the TNO Report provides more conservative conclusions than the pertinent SAFTE/FAST data concerning onboard rest facilities. However, in response to comments discussed above, the FAA has increased the augmented FDP limits in Table C. This increase should more accurately reflect the results of the SAFTE/FAST modeling for augmented operations.

The FAA has considered the fact that basing the definition of rest facilities on the TNO Report may pose hardships for air carriers who currently rely on AC 121-31 for guidance about onboard rest facilities. To mitigate this hardship, as well as for a number of other considerations, the FAA has decided to make the effective date of this rule two years from publication. This two-year window will provide air carriers with time to phase out their current onboard rest facilities and install/upgrade onboard rest facilities that comply with the provisions of this rule.

APA, FedEx ALPA, SWAPA, CAPA, and Flight Time ARC said that the definition of “rest facility” should include the following clarification: “A rest facility on an aircraft shall only be used for in-flight rest opportunities.” The commenters said this statement will eliminate any temptation to have crews obtaining their part § 117.25 or part § 117.17 rest on the aircraft when it is on the ramp. Several of these commenters noted that a bunk or seat on an aircraft is not a suitable rest facility on the ground. APA further recommended that the FAA separate the definitions of an “in-flight, onboard rest facility” and a “ground-based rest facility” and clearly differentiate between a ground-based rest facility and a suitable accommodation.

The FAA agrees with the above commenters that rest in a rest facility should take place while an aircraft is in-flight. That is why the augmented FDP section, section 117.17, to which the rest-facilities definition applies, mandates that the required minimum augmentation rest take place in-flight. Because section 117.17 already requires that the minimum augmentation rest take place in-flight, there is no need to further amend the pertinent regulatory text.

Turning to APA's request for clarification concerning the distinction between onboard and ground-based rest facilities, the FAA notes that a rest facility is a facility that is installed in an aircraft. A suitable accommodation, on the other hand, is a ground-based facility. The FAA has amended the pertinent definitions to clarify this distinction between a suitable accommodation and a rest facility.

APA also stated that detailed minimum standards should be spelled out in regulatory requirements. At a minimum, the language in the Class 1 facility definition should be improved to indicate that other surfaces that allow for a flat sleeping position should be suitably padded and reasonably comfortable and suitable for sleeping. APA noted that the ARC's discussions described ground-based facilities primarily as bunkrooms and the like used by cargo carriers to provide rest during a package sort operation. APA urged the FAA to adopt the detailed recommendations regarding onboard rest facility requirements set out in the appendix included in its comment submission. APA added that it remains concerned that if such specifications are left to Advisory Circulars, and if important details are not followed, in-flight rest could be seriously compromised. Additionally, it noted that several studies have commented on sleep problems caused by low humidity or an improper temperature, but the FAA did not mention these factors nor list any requirement for them. APA suggested that a Class 1 rest facility should account for low humidity and improper temperatures.

Delta expressed concern with the following description of a Class 2 facility that, it said, is contained both in the preface and in Advisory Circular 121-31A: A Class 2 rest facility is “a seat in an aircraft cabin that allows for a flat or near flat sleeping position (around 80 degrees from the seat's vertical centerline).” Delta said that many U.S. carriers currently providing on board rest facilities on routes for which Class 2 seats would be used are using a passenger business class type seat, some of which have been slightly modified or enhanced. The commenter further noted that these types of facilities have been in use for many years mostly on flights governed by 14 CFR 121.483. According to Delta, the ARC discussed this issue and acknowledged that these existing seats have worked very well. Delta asserted that most of these seats do not recline to the 80 degree range nor is it known yet if it is feasible to modify them for this capability. Delta believed that business class type seats currently being used are more than adequate to allow for in-flight rest.

UPS and NACA said that the definition of a Class 2 rest facility fails to address rest facilities on aircraft configured without a passenger cabin (

i.e.,

all-cargo aircraft). UPS suggested that the definition should read: “In an aircraft configured with a passenger cabin, Class 2 rest facility means a seat that allows for a flat or near flat sleeping position and is separated from passengers by a minimum of a curtain to provide darkness and some sound mitigation, and is reasonably free from disturbance by passengers or in-flight flightcrew members. In an aircraft not configured with a passenger cabin, Class 2 rest facility means a seat that allows for a flat or near flat sleeping position.”

In response to these comments, the FAA notes that, as discussed above, the specific requirements for rest facilities were derived from the TNO Report, which analyzed how much rest would be obtained from each rest facility that complied with those requirements. Because various air carriers currently utilize different types of rest facilities, the FAA has determined that adding to the TNO Report's minimum rest-facility requirements would require more air carriers to replace their existing rest facilities without a demonstrated safety benefit to justify this cost. Accordingly, the FAA declines to add additional requirements to the rest-facility requirements set out in the NPRM.

The FAA has also decided not to expand the definition of a Class 2 rest facility beyond the recommendations of the TNO Report. The FAA is open to the possibility of expanding the definition of a Class 2 rest facility if additional data is provided as part of an FRMS, and if expanding this definition would not adversely affect safety. In response

to UPS and NACA's concerns, the FAA has changed the phrase “passenger cabin” to “aircraft cabin” in the rest-facility definition in order to include rest facilities on aircraft without a passenger cabin.

A number of industry groups and air carriers also objected to the fact that the NPRM did not consider economy-class seats to be a rest facility. These commenters stated that, in their operational experience, economy-class seats provided flightcrew members with significant amounts of restful sleep. The commenters cited a number of studies that, they claimed, indicate that an economy-class seat can provide restful sleep.

The decision to not consider an economy-class seat to be a rest facility was based on the TNO Report, which determined that “the probability of obtaining recuperative sleep in such a seat would be minimal.”

19

The TNO Report's determination was based on the following considerations: (1) An economy-class seat does not recline more than 40 degrees “and has no opportunities for adequate foot and leg rest, which diminishes the probability of recuperative sleep;” (2) “space around the seat is not sufficient to create an adequate separation from the passengers (jostle in economy class), or guarantee any privacy;” and (3) “a majority of passengers are unable to sleep at all in an economy seat. With the help of sleeping aids or alcohol, some passengers succeed in obtaining some sleep, but they often feel a general malaise after sleeping in a cramped position.”

20

The FAA agrees with the TNO Report's analysis of economy-class seats, and based on this analysis, which states that economy-class seats provide minimal amounts of recuperative sleep, the FAA has determined that economy-class seats should not be considered a rest facility in this rule.

19

TNO Report at 17.

20

Id.

at 18.

Delta stated that it is unclear why the FAA is concerned with keeping crew rest facilities out of the coach or economy section of the aircraft. Delta believes that if the seat meets the NPRM definition requirements and the specifications provided in AC 121-3A (now AC 117-1), the geographical location of the rest facility on the aircraft should be immaterial. Delta further noted that it attempted to locate a scientific or an operational basis for the exclusionary requirement and has been unable to find any; therefore, Delta believes this is an unjustified constraint and should be removed.

As discussed in the preceding response, one of the reasons why an economy-class seat does not provide restful sleep is that space around the seat is not sufficient to create an adequate separation from the passengers (economy jostling). Because there are substantially more passengers in the economy section of an aircraft, that section is generally noisier and has more densely-packed people than the other sections of the aircraft. In addition, the FAA notes that economy cabins are generally located behind the aircraft engines, and thus, have to deal with louder engine noise. Due to all of these considerations, locating a rest facility in the economy section would reduce the restfulness of the sleep obtained by a flightcrew member.

Boeing stated it has concerns about the use of the phrase “sleep opportunity” in the definition. It noted that it considers a “sleep opportunity” to be a period of time during which sleep or rest can feasibly occur. Boeing suggested that the definition be revised to read: “Rest facility means a bunk, seat, room, or other accommodation that provides a flightcrew member with comfort and quiet so as to maximize sleep and rest within a sleep opportunity period.”

Boeing's suggested definition of rest facilities has already been largely incorporated into the definitions for the Class 1 and 2 rest facilities. The FAA declines to incorporate the suggested definition for a Class 3 rest facility because there is no recommendation in the TNO Report that a Class 3 facility provide sound mitigation.

Boeing also said that it finds the new crew rest definitions to be overly prescriptive, and may drive design and configuration decisions that would run counter to the intent of the proposed rule. For example, all three classes of rest facility are defined by their location: Class 1 must be located “separate from both the flight deck and passenger cabin;” Class 2 must be in the passenger cabin; and Class 3 must be in the cabin or flight deck. Boeing notes that while these definitions may encompass most or many of the current airplane configurations, they preclude new and novel designs that might better match the intent of the rule. The commenter recommended that the FAA consider including a provision in the rule that would allow new or alternative designs to be qualified as “equivalent” to Class 1, 2, or 3, based on scientific data, such as: “Rest facilities may be qualified to a higher Class if the quantity of sleep achieved in the facility can be demonstrated to be equal to or greater than the level achieved by that Class.”

Boeing's recommendation for recognizing new rest facilities that provide a sleep opportunity that is equivalent to the rest facilities defined by this rule is addressed by the FRMS and exemption processes. If an air carrier can show that its rest facility provides the same benefits as a Class 1, 2, or 3 rest facility, the FAA may approve an FRMS or an exemption recognizing the rest facility in question as providing the same fatigue mitigation as the rest facilities regulated by this rule.

Atlas said that the proposed rule's definition of rest facility is unworkably vague and leaves a number of uncertainties, which the FAA declined to clarify in response to questions. In particular, NACA and Atlas stated that the definition of Class 1 rest facility needs to be revised, as it is impossible to provide complete “isolation from noise and disturbance” on an aircraft. Atlas said that it supports changing the definition of a Class 3 rest facility to include a common coach class seat or non-crew seat on the flight deck of an all-cargo aircraft.

The definition for a Class 1 rest facility does not require that the isolation from noise and disturbance be complete. The FAA will accept a Class 1 rest facility that minimizes noise and disturbance without eliminating it completely, as complete elimination of noise and disturbance onboard an aircraft is virtually impossible. As discussed above, the FAA has declined to accept an economy-class seat as a rest facility because the TNO Report has determined that these types of seat provide a minimal amount of restful sleep.

24. Rest Period

The NPRM defined “rest period” as a continuous period determined prospectively during which the flightcrew member is free from all restraint by the certificate holder, including freedom from present responsibility for work should the occasion arise. None of the comments raised any significant issues with regard to this definition, and as such, this rule adopts the proposed definition.

25. Scheduled

The NPRM stated that “scheduled” means times assigned by a certificate holder when a flightcrew member is required to report for duty.

UPS commented that the definition does not address reschedules that occur during an FDP but only schedules assigned when the flightcrew member

reported for duty. UPS suggested revising the definition as follows: “Scheduled means times assigned by a certificate holder when a flightcrew member is required to report for duty or has been given a re-schedule during the FDP that fully complies with the requirements of this part.”

The FAA agrees with UPS that the proposed definition was ambiguous. The pertinent definition has been amended for clarification purposes.

26. Schedule Reliability

The NPRM defines “schedule reliability” to mean the accuracy of the length of a scheduled flight duty period as compared to the actual flight duty period.

FedEx ALPA, ALPA, CAPA, SWAPA, IPA, and Flight Time ARC proposed the following revised definition for schedule reliability: “Schedule reliability means the accuracy of the length of both a scheduled flight duty period and a scheduled flight segment as compared to the actual flight duty period and segment.” SWAPA offered the following rationale for the revised definition: “To achieve schedule reliability, the individual flight segments must be considered. If a given segment within a pairing causes the pairing to exceed the limits, the certificate holder can merely leave the offending segment and change the pairing mix to bring it within limits. The segment would never be corrected. We believe that a scheduling metric must be included in § 117.9. Certificate holders now provide on-time reports to the DOT on an individual flight segment so this should not be a burdensome requirement.”

UPS said that defining schedule reliability as a comparison of an actual FDP to a scheduled FDP has no fatigue or safety implications. It recommended revising the definition as follows to match the preamble description: “Schedule reliability means the accuracy of the length of a scheduled flight duty period as compared to the maximum FDP listed in either Tables B or C (as applicable).”

As discussed in other parts of this preamble, the FAA has largely removed the proposed schedule-reliability requirements from the final rule. As such, there is no longer a need to define schedule reliability, and that definition has been removed from this rule.

27. Short-Call Reserve

The NPRM stated that “short-call reserve” means a period of time in which a flightcrew member does not receive a required rest period following notification by the certificate holder to report for a flight duty period.

NACA said that the only task assigned during short-call reserve is answering the phone. Otherwise, flightcrew members are free to conduct their lives as if they were in a rest period. NACA recommended clarifying the definition by specifying that short-call reserve is not duty.

NACA, Atlas, and NAA asked the FAA to more clearly distinguish short-call reserve from airport/standby reserve. Atlas recommended revising the definition of short-call reserve to mean “a short, designated period of time (usually three hours or less), either at home or in a hotel, during which a flightcrew member is on reserve call-up for an assignment. Because the flightcrew member has not reported for assignment and rest is available, the time on short-call reserve is not to be considered part of FDP or duty.” NAA recommended the following revision to the definition to address its concerns: “Short-call reserve means a period of duty time in which a flightcrew member does not receive a required rest period following notification by the certificate holder to report for a flight duty period, but is provided more than one hour notice of the required reporting time.”

In response to the above comments, the FAA notes that the distinctive feature of short-call reserve is that the flightcrew member on short-call reserve is assigned a reserve availability period. Accordingly, the definition of short-call reserve has been amended to clarify that this definition only applies to a flightcrew member who is assigned to a reserve availability period. As discussed in the pertinent portions of this preamble, the FAA has removed the cumulative-duty-period limits from this rule, in part, in response to concerns raised by commenters about the way that this cumulative limit impacted short-call reserve.

28. Split Duty

The NPRM defines “split duty” as a flight duty period that has a scheduled break in duty that is less than a required rest period.

NACA said that the definition of split duty should make clear that the term “scheduled” is used only where it is clearly applicable to the situation intended. For non-scheduled operations, NACA believed that a schedule begins when the flightcrew member shows up for an FDP. As such, NACA argued that split-duty credit should be provided for a break in nonscheduled operations that was not foreseen. Additionally, according to NACA, a scheduled split duty break should not be strictly enforced because it may be intended in a nonscheduled FDP at the time the flightcrew member shows up for the FDP but not used for real-time operational reasons.

NACA further said that the fatigue-mitigating rest must be provided in the FDP in which the split-duty credit is actually used. According to NACA, the split-duty rest can only be used if the split duty rest opportunity is actually provided. NACA recommended that the definition be revised as follows, to include the phrase “an actual” to address its concerns: “split duty means a flight duty period that has an actual scheduled break in duty that is less than a required rest period.” Atlas added that, for clarity and to strengthen split duty as a fatigue mitigation vehicle, the phrase “a scheduled break” in the split duty definition should be changed to “an actual break.”

RAA said that the definition should be revised as follows: “split duty means a flight duty period that has a scheduled break in duty in a suitable accommodation that is less than a required rest period.”

The FAA agrees with the above commenters that split duty should be based on actual and not just scheduled rest. In light of the commenters' concerns, the split duty section has been amended to clarify that actual split-duty rest may not be less than the amount of split-duty rest that was scheduled. With regard to NACA's concerns about the term “scheduled,” as discussed in the split-duty section of this preamble, air carriers are required to schedule split-duty before the beginning of a split-duty FDP so that flightcrew members can accurately self-assess their ability to safely complete the FDP before the FDP begins.

29. Suitable Accommodation

The NPRM defines “suitable accommodation” to mean a temperature-controlled facility with sound mitigation that provides a flightcrew member with the ability to sleep in a bed and to control light.

APA, ALPA, CAPA, SWAPA, FedEx ALPA, and Flight Time ARC said that operational experience has demonstrated that a single-occupancy room is required. Otherwise, disruptions such as the other person's reading, watching television, snoring,

etc.,

will disrupt the roommate's rest. To address these concerns, the commenters recommend revising the definition as follows so that it only applies to single occupancy: “Suitable accommodation means single occupancy facility with sound mitigation that provides a flightcrew member with the ability to

sleep in a bed and to control light.” APA recommended the following revised definition: “suitable accommodation means a single-occupancy hotel room or equivalent with a bed, sound mitigation and light and temperature controls that is reasonably free from disturbances.”

In response to the above commenters, the FAA notes that it is unaware of any scientific data showing that single-occupancy rooms are essential for split-duty rest. Until there is more data showing the safety benefits of single-occupancy rooms, the FAA will not impose the cost of obtaining these types of rooms on air carriers. In addition, upon reevaluation of the definition of suitable accommodation, the FAA has determined that a chair that allows for a flat or near flat sleeping position would also provide significant recuperative split-duty rest. Therefore, the definition of suitable accommodation has been amended accordingly.

In addition, as discussed further in the definition of “rest facilities,” a suitable accommodation only applies to ground facilities and does not apply to rest facilities onboard aircraft because the use of onboard rest facilities as a suitable accommodation raises concerns regarding flightcrew member safety. The use of onboard rest facilities requires that the aircraft's environmental systems be turned on and that someone monitor the continuing operation of these systems. However, if an onboard rest facility is used as a suitable accommodation while the aircraft is on the ground, there would be no one awake to monitor the continuing safe operation of these environmental systems. Consequently, the use of onboard rest facilities for ground-based sleep poses a safety risk, which is also discussed in the aircraft flight manual, and as such, this rule does not consider onboard rest facilities to be a suitable accommodation.

30. Theater

The NPRM states that “theater” means a geographical area where local time at the flightcrew member's flight duty period departure point and arrival point differ by no more than 4 hours.

Flight Time ARC, ALPA, CAPA, IPA, and FedEx ALPA said that the definition should provide for instances where countries such as China have just one time zone. These commenters recommended amending the definition as follows to address such instances: “Theater means a geographical area where local time at the flightcrew member's flight duty period departure point and arrival point differ by no more than 4 time zones or 60 degrees of longitude.” APA and SWAPA commented similarly, except they recommended referencing three time zones instead of four so that the definition reads: “Theater means a geographical area where local time at the flightcrew member's flight duty period departure point and arrival point differ by no more than three time zones or sixty (60) degrees of longitude whichever is most restrictive.”

In support of its recommendation, APA and SWAPA said that they believe the intent of the NPRM is to define a theater as an area four time zones in width. Thus, this would be a difference of three time zones from the flightcrew member's point of origin. APA further commented that it recommended three time zones because while the United States is four time zones wide, the difference between the east and west coast is three hours or three time zones. APA believed that specifying more than this amount would be contrary to most scientific recommendations about theater and acclimation. APA also believed that its revised definition addresses the irregularities of daylight savings time.

Theater is now defined as “a geographical area where the flightcrew member's flight duty period departure point and arrival point differ by more than 60 degrees longitude.” The FAA has chosen to eliminate the reference to time zones in this definition because, as the commenters correctly pointed out, time zones do not provide a uniform method of measurement, as they tend to vary in different geographic regions.

31. Unacclimated

The FAA did not propose a definition for this term; however, several commenters recommended that such a definition be included in the final rule.

Flight Time ARC, ALPA, CAPA, SWAPA, IPA, APA and FedEx ALPA said that the FAA should define this term because it is used throughout the NPRM. Each of these commenters (except APA and SWAPA) defined the term as follows: “A pilot becomes unacclimated if he has traveled to a location more than 4 time zones or more than 60 degrees of longitude from the location at which he was last acclimated.” APA suggested the same definition except it referenced three time zones instead of four. SWAPA defined the term as follows: “A pilot becomes unacclimated if he has a legal rest period less than 36 consecutive hours within a 72 hour period at a location more than 60 degrees of longitude from the location at which he last acclimated and has not spent 72 consecutive hours in that theater.”

The commenters believed that defining acclimated in terms of time zones is subject to the whim of government policy. For example, China has one time zone but spans five normal time zones in width. Also, 60 degrees of longitude is equivalent to four normal time zones and should be included as a supplement to the time zone metric. APA added that a location more than three time zones away is in fact in the fourth time zone or further.

In response to the above comments, the FAA notes that this rule defines “acclimated,” and under that definition, it lists the conditions that are necessary for a flightcrew member to be considered acclimated. If a flightcrew member does not meet those conditions, it logically follows that the flightcrew member is unacclimated. Accordingly, it is unnecessary to provide a separate definition for “unacclimated.”

32. Unforeseen Operational Circumstance

The NPRM defines “unforeseen operational circumstance” as an unplanned event beyond the control of a certificate holder of insufficient duration to allow for adjustments to schedules, including unforeseen weather, equipment malfunction, or air traffic delay.

Alaska Airlines commented that it disagrees with the following explanation from the FAA's Response to Clarifying Questions document:

To the extent the NPRM uses the term “unforeseen circumstances,” the agency intended the term to have the same meaning as “unforeseen operational circumstances.” This term does not differ significantly from the current application of “beyond the control of the certificate holder” in § 121.471(g) except that in the NPRM the FAA is clear that even if a situation is beyond the certificate holder's control, it may not extend beyond the general limits if the circumstances were reasonably foreseeable.

The commenter said that it disagrees with the FAA's clarification because there is a major difference between the proposed definition and the current authorization in section 121.471(g). Alaska Airlines stated that the proposed definition was extremely vague because it did not definitively state whether situations such as bad weather would always constitute unforeseen circumstances.

UPS expressed concern that the definition is not used consistently. It notes that in proposed §§ 117.15 and 117.19, the term “unforeseen circumstance” is used, but the related wording does not match what is used in

the defined term. To address its concern, UPS suggested maintaining the current definition of “beyond the control of the certificate holder.”

The FAA agrees with the above commenters that the proposed definition of “unforeseen operational circumstances” is unclear. To make the definition more definitive, “beyond the control of the certificate holder” was removed from the definition. As such, under the provisions of the final rule, an event constitutes an unforeseen operational circumstance as long as it was unplanned and long enough in duration that the issues associated with that event could not be resolved through minor schedule adjustments. The “beyond the control of the certificate holder” safeguard was moved into the reporting requirement for various FDP extensions where it is easier to understand, and it is discussed in more detail in the pertinent portions of this preamble.

Atlas, World Airways, NAA, and NACA said that while the FAA's definition works well for scheduled service, it does not work for nonscheduled service. These commenters noted that nonscheduled service includes significant unforeseen circumstances where customers determine departure airports, arrival airports, and departure times. They also included instances where ground service providers typically give low priority to low frequency ad hoc or non-scheduled operations even though service contracts are assured before aircraft arrival. NAA and NACA added that the proposed definition also does not include other operational irregularities like Minimum Equipment List issues.

To address their concerns, Atlas, World Airways, NAA, and NACA recommended the following revised definition: “Unforeseen operational circumstance means an unplanned event beyond the control of a certificate holder of insufficient duration to allow for adjustments to schedules, including, but not limited to, un-forecast weather, equipment malfunction, or air traffic delay, charter customers' failure to present passengers and/or cargo at the scheduled time and place; and ground service providers that fail to provide services at the scheduled time.”

In response to the concerns expressed above, the FAA emphasizes that the examples provided in the definition of “unforeseen operational circumstances” are not intended to be exclusive. As discussed in the preceding response, an event constitutes an unforeseen operational circumstance as long as it was unplanned and long enough that the issues associated with that event could not be resolved through minor schedule adjustments. This definition includes unplanned events that are specific to supplemental operations.

Alaska Airlines stated that the impact of all weather is unforeseeable, and the duration is always unknown and beyond the control of the certificate holder. It also stated that while many weather events are foreseeable, all are beyond the carriers' control. The commenter suggested eliminating the phrase “insufficient duration to allow for adjustments to schedules,” and revising the definition as follows: “Unforeseen operational circumstance means an event beyond the control of a certificate holder, including unforecast weather, equipment malfunction, or air traffic delay.”

In response to Alaska Airlines, the FAA notes that the phrase “insufficient duration to allow for adjustments to schedules” is intended to exclude unplanned events of relatively short duration. For example, the FAA would not consider a five-minute air traffic delay as an unforeseen operational circumstance that justifies the need for a two-hour FDP extension. Because relatively short unplanned events should not be used as a basis for extending an FDP, the FAA has decided to retain “insufficient duration to allow for adjustments to schedules” in the definition of unforeseen operational circumstances.

33. Window of Circadian Low

The NPRM defined window of circadian low as a period of maximum sleepiness that occurs between 0200 and 0559 during a physiological night. The FAA did not receive any comments with regard to this definition, and as such, this rule adopts the proposed definition.

C. Fitness for Duty

The goal of proposed section 117.5 was to address situations in which a flightcrew member complies with the other provisions of this proposal, but still shows up for an FDP too fatigued to safely perform his or her assigned flight duties. The proposed section 117.5 would have made fatigue mitigation the “joint responsibility of the certificate holder and the flightcrew member.” 75 FR 5587. This section sought to discourage certificate holders from pushing the envelope with fatigue-inducing practices such as “scheduling right up to the maximum duty limits, assigning flightcrew members who have reached their flight time limits additional flight duties under part 91, and exceeding the maximum flight and duty limits by claiming reasonably foreseeable circumstances are beyond their control.”

Id.

The proposed section 117.5 also sought to discourage flightcrew-member practices such as “pick[ing] up extra hours, moonlight[ing], report[ing] to work when sick, commut[ing] irresponsibly, or simply not tak[ing] advantage of the required rest periods.”

Id.

To discourage the above practices, the proposed section 117.5 contained a number of restrictions. First, this section would have prohibited flightcrew members from accepting an assignment that would consist of an FDP if they were too tired to fly safely. Second, this section would have prohibited flightcrew members from continuing subsequent flight segments if they were too fatigued to fly safely. Third, the proposed section would have required the certificate holder to assess a flightcrew member's state when he or she reported for work, and, if the flightcrew member was showing signs of fatigue, this section prohibited the certificate holder from allowing that flightcrew member to fly. Fourth, this section would have required flightcrew members to report to management about other flightcrew members who they believed were too tired to fly, and in those instances, it required management to perform an evaluation to determine whether the flightcrew member in question was indeed too tired to fly safely. Fifth, this section would have required certificate holders to develop and implement an internal evaluation and audit program to monitor whether flightcrew members were reporting to work fatigued.

The FAA received numerous comments regarding the proposed section 117.5. For the sake of clarity, the FAA will analyze the substantive issues raised by the comments as those issues pertain to each of the proposed provisions of 117.5.

Proposed § 117.5(a)

Each flightcrew member must report for any flight duty period rested and prepared to perform his or her assigned duties.

Two commenters stressed the importance of pilots being fit for duty. IPA, ALPA, Flight Time ARC, and one other commenter supported the proposed provision, and emphasized that this provision does not create a policing environment in which certificate holders track or monitor flightcrew members' off-duty activities. Fifteen pilots requested the removal of the above provision, arguing that this provision unfairly places the burden of showing up fit for duty solely on the flightcrew member. Multiple commenters also emphasized that

tracking fitness for duty must be the joint responsibility of the certificate holder and the flightcrew member.

Several commenters included suggestions and requests for clarification. NJASAP sought clarification regarding the repercussions of a flightcrew member reporting for duty without being properly rested. NAA and UPS recommended including the statement that flightcrew members need to be prepared to work “up to the prescribed FDP limits in Tables B or C” when they begin an FDP.

Section 117.5(a) does not place the burden of showing up fit for duty solely on the flightcrew member. Section 117.5(a), in conjunction with the other provisions of this rule, places a joint responsibility on the certificate holder and each flightcrew member. In order for the flightcrew member to report for an FDP properly rested as required by this section, the certificate holder must provide the flightcrew member with a meaningful rest opportunity that will allow the flightcrew member to get the proper amount of sleep. Likewise, the flightcrew member bears the responsibility of actually sleeping during the rest opportunity provided by the certificate holder instead of using that time to do other things. The consequences of a flightcrew member reporting for duty without being properly rested are addressed by subsections (b) and/or (c) of this section, which prohibit the flightcrew member from beginning or continuing an FDP until he or she is properly rested.

Turning to NAA and UPS' suggestion, the FAA has declined to add the proposed language to subsection 117.5(a). The adopted language of subsection 117.5(a) requires each flightcrew member to report for an FDP “rested and prepared to perform his or her assigned duties.” These assigned duties will not always extend to the outer limits prescribed in tables B and C of this rule. Indeed, a certificate holder will find it difficult to comply with the cumulative limits specified in section 117.23 if it always assigns duties at the outer limits of tables B and C. Therefore, the text of this subsection reflects the fact that a flightcrew member needs to be rested and prepared to safely perform the duties that are actually assigned to him or her.

Proposed § 117.5(b)

No certificate holder may assign and no flightcrew member may accept assignment to a flight duty period if the flightcrew member has reported for a flight duty period too fatigued to safely perform his or her assigned duties or if the certificate holder believes that the flightcrew member is too fatigued to safely perform his or her assigned duties.

Peninsula Airways, Pinnacle Airlines, and Southern Air stated that the flightcrew is the best source of determining fatigue, and as such, an air carrier should not be responsible for monitoring fatigue symptoms and assessing fatigue. ATA, CAA, NACA, and a number of other commenters stated that the proposed subsection would be impossible to implement because it places the burden of determining flightcrew member fatigue on air carriers without providing the air carriers with an objective scientific standard for measuring fatigue. ATA and Delta added that when a flightcrew member reports for duty at the beginning of an FDP, it is impossible for an airline to determine whether that flightcrew member will be fatigued toward the end of the FDP.

The NTSB supported enabling flightcrew members to self-report fatigue. NJASAP and Boeing stated that flightcrew members cannot subjectively self-assess whether they are too fatigued to safely carry out their assigned FDPs. NJASAP based its assertion on NASA fatigue research showing that when a person is fatigued, he or she suffers from impaired judgment, and may lack the ability to self-assess his or her level of alertness. Boeing asked the FAA to include non-subjective factors in the fatigue determination requirement, such as time of day and the amount of sleep received in a 24-hour period. Alaska Airlines asked that the phrase “too fatigued” be defined more clearly. Boeing was also concerned about flightcrew members who self-assess at the beginning of an FDP improperly assessing their competency to actually complete the FDP.

CAPA, SWAPA, and APA recommended that the FAA add a non-retaliation provision to the proposed subsection in order to prevent disciplinary action against flightcrew members who self-report fatigue. One commenter stated that fatigue reporting should be voluntary. Two commenters argued that the entire crew should be assessed to determine fitness for duty.

The FAA agrees with the commenters who stated that at this time sleep science cannot support a general regulatory standard under which air carriers would be required to monitor the exact level of flightcrew member fatigue. As these commenters correctly pointed out, there does not currently exist an objective standard for determining fatigue levels. As such, requiring air carriers to suspend flightcrew members who they “believe” are too fatigued would create a vague and difficult-to-apply regulatory standard. To address this concern, the FAA has eliminated the following provision from the proposed subsection: “or if the certificate holder believes that the flightcrew member is too fatigued to safely perform his or her assigned duties.” The remaining language in this subsection places a limited burden on the certificate holder—it prohibits the certificate holder from assigning an FDP to a flightcrew member who has informed the certificate holder that he or she is too fatigued to safely perform his or her assigned duties.

The discussion in the preceding paragraph should not be construed to imply that air carriers cannot identify flightcrew member fatigue. As the proposed AC 120-FIT (finalized as AC 117-3) pointed out, there are objective signs that could be used to identify flightcrew member fatigue. The FAA has simply chosen not to impose a mandatory regulatory requirement because the signs used to identify fatigue cannot be synthesized into a general objective standard. However, the FAA encourages air carriers to voluntarily evaluate flightcrew members who are showing signs of fatigue.

NJASAP and Boeing's concerns about the subjective nature of flightcrew member self-assessment and self-reporting are mitigated by the fact that, pursuant to statutorily-mandated Fatigue Risk Management Plans (FRMP), flightcrew members will undergo fatigue education and training. The information that the flightcrew members learn during this training will increase each flightcrew member's ability to self-assess his or her fatigue levels.

In response to the comment that fatigue reporting should be made voluntary, the FAA has decided to make fatigue reporting mandatory because allowing a flightcrew member to accept an assignment to an FDP when that flightcrew member knows that he or she is too tired to fly safely poses an unacceptable safety risk. However, the FAA cannot, at this time, impose an objective requirement on self-reporting fatigue because, as the other commenters pointed out, there is no objective science-based standard that could be used to measure fatigue levels. The FAA also cannot further define the phrase “too fatigued” because defining this phrase requires the creation of an objective fatigue-measurement standard, which does not exist at this time. Instead of creating a single objective fatigue-measurement standard, the above subsection requires each flightcrew member to utilize the information provided during his or her statutorily-mandated fatigue training to self-assess whether he or she feels well-rested enough to safely complete his or

her assigned FDP. The FAA also emphasizes that flightcrew members who feel alert at the beginning of an FDP can immediately terminate the FDP, under subsection (c) of section 117.5, if they feel themselves becoming too fatigued to safely continue their assigned duties.

The FAA also considered the possibility of adding a non-retaliation provision to the above text, but ultimately decided against adding such a provision. As the NPRM pointed out, “[c]arriers are entitled to investigate the causes for an employee's fatigue.” 75 FR 55858. “If a carrier determines that the flightcrew member was responsible for becoming fatigued, it has every right to take steps to address that behavior.”

Id.

However, if the flightcrew member's fatigue is a result of the carrier not following the regulatory requirements of this rule, the FAA may initiate enforcement action against the carrier.

Turning to concerns about fatigue affecting other air carrier employees, as discussed in the NPRM, the FAA “has decided to take incremental steps in addressing fatigue.” 75 FR 55857. In accordance with this decision, the NPRM proposed a flight, duty, and rest rule that was only applicable to flightcrew members. Because the proposed rule was not applicable to other flight crewmembers, such as flight attendants, expanding the rule to those flight crewmembers at this point in time would exceed the scope of this rulemaking. However, the FAA emphasizes that its incremental approach contemplates “future rulemaking initiatives [that] may address fatigue concerns related to flight attendants, maintenance personnel, and dispatchers.”

Id.

Proposed § 117.5(c)

No certificate holder may permit a flightcrew member to continue a flight duty period if the flightcrew member has reported himself too fatigued to continue the assigned flight duty period.

The FAA did not receive any comments that were specific to this subsection. To the extent any of the comments discussed in the preceding subsection are applicable to this subsection, the FAA's response to those comments can be found above.

Proposed § 117.5(d)

Any person who suspects a flightcrew member of being too fatigued to perform his or her duties during flight must immediately report that information to the certificate holder.

ATA, NACA, Delta, Alaska Airlines, and UPS stated that requiring persons to report other people who they believe to be fatigued could result in persons with no training or with ill will making erroneous reports. Multiple commenters emphasized that there is no objective scientific standard to guide personnel about when they need to make a report about another flightcrew member's fatigue. ATA stated that the proposed subsection will shift liability to airlines and impose significant costs in the form of training and retraining tens of thousands of employees.

The FAA agrees with the commenters who stated that, because there is no objective scientific standard to guide personnel about when they need to report other flightcrew members' fatigue, having a mandatory reporting requirement could lead to a multitude of erroneous reports. To address this concern, the FAA has eliminated the above subsection from the final rule. However, even though the FAA has decided not to impose a mandatory reporting requirement, each flightcrew member and covered employee is encouraged to voluntarily inform their employer when they observe a fatigued flightcrew member.

Proposed § 117.5(e)

Once notified of possible flightcrew member fatigue, the certificate holder must evaluate the flightcrew member for fitness for duty. The evaluation must be conducted by a person trained in accordance with § 117.11 and must be completed before the flightcrew member begins or continues an FDP.

Numerous commenters stated that there is no objective scientific standard under which a certificate holder could evaluate a flightcrew member's fitness for duty. The commenters also emphasized that the proposed subsection would create difficulties at remote airports where the certificate holder lacks personnel qualified to conduct a fitness-for-duty evaluation.

The FAA agrees with the commenters that there is no objective scientific standard that an air carrier could use to evaluate a flightcrew member's continued fitness for duty. Accordingly, the FAA has eliminated the above subsection from the final rule.

Proposed § 117.5(f)

As part of the dispatch or flight release, as applicable, each flightcrew member must affirmatively state he or she is fit for duty prior to commencing flight.

RAA stated that there was no benefit to requiring each flightcrew member to sign a document stating that he or she is fit for duty. Instead, RAA suggested that the PIC sign the fitness for duty affirmation on behalf of the entire crew. NJASAP asked (1) how the flightcrew members would affirm fitness for duty via the flight release, and (2) whether this requirement would apply to each flight segment.

As the FAA and other commenters pointed out elsewhere, there is no objective scientific test that the PIC could use to measure the fatigue levels of other flightcrew members. Because the PIC has no way to objectively measure other flightcrew members' fatigue, the FAA has determined that each flightcrew member should be required to monitor his or her own fatigue level. As such, each flightcrew member must either make a written affirmation that he/she is fit for duty or terminate the assigned FDP pursuant to subsection 117.5(c).

The requirement that flightcrew members make a written affirmation about their continued fitness for duty applies to each flight segment of the assigned FDP. This is because a flightcrew member who is alert at the beginning of an FDP may become dangerously fatigued once the FDP is underway. Requiring a written fitness for duty affirmation before each flight segment will help ensure that flightcrew members continuously monitor their fatigue levels during the course of an FDP. If, during the course of this monitoring, flightcrew members determine that they cannot safely continue their assigned duties, section 117.5(c) would require them to terminate their assigned FDP prior to the beginning of the next flight segment.

The affirmation on the dispatch or flight release simply needs to state that the undersigned flightcrew members affirm that they are fit for duty. The dispatch or flight release containing the affirmation must be signed by each flightcrew member. This requirement applies to each flight segment and each air carrier should inform its flightcrew members about the significance of signing a fitness-for-duty affirmation.

Proposed § 117.5(g)

Each certificate holder must develop and implement an internal evaluation and audit program approved by the Administrator that will monitor whether flightcrew members are reporting for FDPs fit for duty and correct any deficiencies.

Alaska Airlines stated that the audit requirement is duplicative of the current FRMP process. Delta added that the audit requirement is unclear about how a carrier is supposed to monitor which flightcrew members are showing up fit for duty. ATA asserted that the evaluation and audit requirement is unworkable and impossible to implement because there are no objective scientific standards that a certificate holder could apply to “monitor” which flightcrew members

are reporting for an FDP fit for duty. ATA added that the proposed subsection is unclear about what constitutes a “deficiency” and how a certificate holder is supposed to correct a “deficiency.”

The FAA agrees with Delta and ATA that the proposed subsection does not provide a workable standard for the internal evaluation and audit program. Therefore, the FAA has removed the above subsection from the final rule.

D. Fatigue Education and Training

As part of the NPRM, the FAA proposed a fatigue education and training program. Studies have shown that fatigue degrades all aspects of human performance and impedes the exercise of sound judgment.

21

Studies have also shown that, depending on the operating environment, it can be difficult for an individual to recognize that he or she is fatigued and that his or her judgment may be compromised.

22

Given the impact that fatigue has on the performance of flight-related duties, the FAA was concerned that the existing regulatory structure did not properly educate air carrier personnel about fatigue and its impact flight safety.

23

21

See, e.g.,

NASA,

Crew Factors in Flight Operations X: Alertness Management in Flight Operations,

at 16 (Apr. 1999), http://human-factors.arc.nasa.gov/zteam/PDF_pubs/ETM.TM8_99rev.pdf

(“Sleepiness can degrade essentially every aspect of human performance”).

22

The NASA fatigue report stated that:

The level of underlying physiological sleepiness can be concealed by an environment in which an individual is physically active, has consumed caffeine, or is engaged in a lively conversation. Whereas these factors may affect the self-reported rating of sleepiness (usually individuals will report greater alertness than is warranted), they do not affect the underlying sleep need expressed by the level of physiological sleepiness.

Id.

at 17.

23

The National Institute for Occupational Safety and Health (NIOSH) provides one example of the unacceptable effects that the current lack of fatigue education has on flight safety. In its comment, NIOSH points out that “[i]n a survey of pilots working for large operators in Alaska, 22% responded that they made a decision to fly fatigued either weekly or monthly.” NIOSH Comments to DOT at 2.

In order to raise awareness of fatigue-related issues and provide training on fatigue mitigation strategies, the FAA proposed that certain air carrier personnel be required to undergo a fatigue education and training program. First, the proposed fatigue education and training provisions would have required fatigue education and training for each person involved with scheduling aircraft and crews, as well as all flightcrew members and individuals who conduct management oversight over covered personnel. Second, the proposed section would have required an initial 5-hour-long training session for all newly-hired covered employees and a 2-hour-long annual recurrent training session for all other covered employees. Third, this section set out a training curriculum that would have informed covered personnel about fatigue and fatigue countermeasures. Fourth, the proposed fatigue education and training section would have required certificate holders to make changes to their fatigue education and training programs after being notified of the need to do so by the Administrator.

Alaska Airlines suggested that the FAA eliminate the proposed fatigue education and training section and instead rely on the FRMP to provide the necessary fatigue-related information to airline personnel. The FAA agrees with Alaska Airlines that the fatigue education and training program proposed in the NPRM was unnecessarily cumulative.

Part 121 air carriers are currently statutorily-required to annually provide, as part of their FRMP, fatigue-related education and training to increase the trainees' awareness of: (1) Fatigue; (2) “the effects of fatigue on pilots;” and (3) “fatigue countermeasures.”

See

Public Law 111-216 sec. 212(b)(2)(B). Today's rule adopts the same standard of training as required by the statute. In addition, today's rule adopts a mandatory update of the carriers' education and training program every two years, as part of the update to their FRMP. See Public Law 111-216 sec. 212(b)(4)(A) and (B). Both of these regulatory provisions merely place the existing statutory requirements in the new flight and duty regulations for the ease and convenience of the regulated parties and the FAA.

The statute does not limit the required training to flightcrew members; however, the FRMPs developed by carriers and accepted by the FAA have generally been so limited. Today's rule would require an expansion of the training portion of the FRMPs to all employees responsible for administering the provisions of the new rule, including flightcrew members, dispatchers, individuals directly involved in the scheduling of flightcrew members, individuals directly involved in operational control, and any employee providing direct management oversight of those areas.

24

As discussed below, the FAA continues to believe that personnel responsible for crew scheduling and who play a role in assuring the carrier has operational control need to understand the causes of fatigue as well as the risk that pilot fatigue poses to safe operations.

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Because the statute requires FRMPs to be updated every two years, the FAA anticipates that carriers will simply expand the group of employees subject to training in their next update, scheduled for the summer of 2013.

In response to comments from ATA, Atlas Air and NAA, among others, the FAA has amended the regulatory text to clarify that the fatigue education and training requirement only applies to individuals who are directly involved in flightcrew scheduling and/or operational control and their direct supervisors. The reason for designating such a broad category of covered personnel is to ensure that each individual who has the power to alter a flightcrew member's schedule and/or change the manner in which operational control is exercised is fully aware of how his or her actions will affect flightcrew fatigue and flight safety. Direct management personnel were ultimately included in this category because a manager could order his or her immediate subordinate(s) to change flightcrew member schedules and/or change the manner in which operational control is exercised.

The FAA has de

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