Flight Crewmember Duty Period Limitations, Flight Time Limitations and Rest Requirements

[[Page 65951]]

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 121, 135

[Docket No. 28081; Notice No. 95-18]

RIN 2120-AF63

Flight Crewmember Duty Period Limitations, Flight Time

Limitations and Rest Requirements

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to amend existing regulations to establish

one set of duty period limitations, flight time limitations, and rest

requirements for flight crewmembers engaged in air transportation. The

proposal results from public and congressional interest in regulating

flight crewmember rest requirements, NTSB Safety Recommendations,

petitions for rulemaking, and scientific data contained in recent

National Aeronautics and Space Administration (NASA) studies relating

to flight crewmember duty periods, flight times, and rest. The proposal

would update the regulations and replace certain out-dated regulations

with a simplified regulatory approach based upon scientific studies of

fatigue. The objective of the proposal is to contribute to an improved

aviation safety system by ensuring that flight crewmembers are provided

with the opportunity to obtain sufficient rest to perform their routine

and emergency safety duties.

DATES: Comments must be received on or before March 19, 1996.

ADDRESSES: Send or deliver comments on this notice in triplicate to:

Federal Aviation Administration, Office of the Chief Counsel,

Attention: Rules Docket (AGC-200), Room 915G, Docket No. 28081, 800

Independence Avenue, SW, Washington, DC 20591. Comments may also be

submitted to the Rules Docket by using the following Internet address:

[email protected]. Comments must be marked Docket No. 28081.

Comments may be examined in the Rules Docket in Room 915G on weekdays

between 8:30 a.m. and 5:00 p.m., except on Federal holidays.

FOR FURTHER INFORMATION CONTACT: Larry Youngblut, Project Development

Branch, AFS-240, Air Transportation Division, Flight Standards Service,

Room 829, Federal Aviation Administration, 800 Independence Avenue,

SW., Washington, DC 20591; telephone (202) 267-3755.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to participate in this rulemaking by

submitting written data, views, or arguments, and by commenting on the

possible environmental, economic, and federalism- or energy-related

impact of the adoption of this proposal. Comments concerning the

proposed implementation and effective date of the rule are also

specifically requested.

Comments should carry the regulatory docket or notice number and

should be submitted in triplicate to the Rules Docket address specified

above. All comments received and a report summarizing any substantive

public contact with FAA personnel on this rulemaking will be filed in

the docket. The docket is available for public inspection both before

and after the closing date for receiving comments.

Before taking any final action on this proposal, the Administrator

will consider the comments made on or before the closing date for

comments, and the proposal may be changed in light of the comments

received.

The FAA will acknowledge receipt of a comment if the commenter

includes a self-addressed, stamped postcard with the comment. The

postcard should be marked ``Comments to Docket No. 28081.'' When the

comment is received by the FAA, the postcard will be dated, time

stamped, and returned to the commenter.

Availability of the NPRM

Any person may obtain a copy of this NPRM by submitting a request

to the Federal Aviation Administration, Office of Public Affairs,

Attention: Public Inquiry Center, APA-430, 800 Independence Avenue SW.,

Washington, DC 20591, or by calling (202) 267-3484. Communications must

identify the notice number of this NPRM.

Persons interested in being placed on a mailing list for future FAA

NPRM's should request a copy of Advisory Circular No. 11-2A, Notice of

Proposed Rulemaking Distribution System, which describes application

procedures.

Background

The aviation industry requires 24-hour activities to meet

operational demands. Growth in global long-haul, regional, overnight

cargo, and short-haul domestic operations is likely to increase round-

the-clock requirements. Flight crews must be available to support 24-

hour a day operations to meet these industry demands. Both domestic and

international aviation frequently require crossing multiple time zones.

Therefore, shift work, night work, irregular work schedules,

unpredictable work schedules, and time zone changes will continue to be

commonplace components of the aviation industry. These factors affect

human physiology by causing performance-impairing fatigue that can

affect the level of safety. The FAA believes that it is critical,

whenever possible, to incorporate scientific information on fatigue and

human sleep physiology into regulations on flight crew scheduling. Such

scientific information can help to maintain the safety margin and

promote optimum crew performance and alertness during flight

operations.

Over the past 40 years, scientific knowledge about sleep, sleep

disorders, circadian physiology, fatigue, sleepiness/alertness, and

performance decrements has grown significantly. Some of this scientific

knowledge, gained through field and simulator studies, has confirmed

that aviators experience performance-impairing fatigue from sleep loss

resulting from current flight and duty practices. Incorporation of

scientific knowledge on fatigue into operations (e.g., regulatory

scheduling considerations, personal strategies, fatigue

countermeasures) would greatly benefit safety. A primary purpose of

this rulemaking is to incorporate as much as possible of the scientific

knowledge into the applicable regulations.

A second purpose of this proposed rulemaking is to establish

consistent and clear duty period limitations, flight time limitations,

and rest requirements for all types of operations. The current

regulations require revising because of their complexity and age. While

domestic flight time limitations and some commuter limitations were

updated in 1985, flag and supplemental operations were not. With

advancements in new aircraft, these operational distinctions are no

longer as meaningful as they once were. This proposal would establish

the same duty period limitations, flight time limitations, and rest

requirements for all types of operations in part 121 for domestic,

flag, and supplemental operations and in part 135 for commuter and on-

demand operations. The duty period limitations, flight time

limitations, and rest requirements would allow for differences based on

the length of flights and number of flight crewmembers on a flight.

[[Page 65952]]

General Discussion

Historical Review

The Civil Aeronautics Act of 1938 (52 Stat. 1007; as amended by 62

Stat. 1216, 49 U.S.C. 551) and subsequently, the Federal Aviation Act

of 1958 (now codified at 49 U.S.C. 40101 et seq.) addressed the issue

of regulating flight crewmember hours of service. The Federal Aviation

Act, as amended, empowers and directs the Secretary of Transportation

to promote the safety of civil air flight in air commerce by

prescribing and revising from time to time ``reasonable rules and

regulations governing, in the interest of safety, the maximum hours or

periods of service of airmen, and other employees.''

Despite many changes in the airline transportation industry over

the 30 years before 1983, the rules governing flight time limitations

and rest requirements remained virtually unchanged because no safety

reasons had been presented which necessitated changes to the

regulations. But the presumed level of safety established by these

rules did not necessarily mean that the rules were as effective as they

should have been when considered in light of changes that had occurred

in the industry in the previous 30 years.

In 1983, a significant rulemaking was initiated to clarify and

simplify the regulations and to make them more applicable to the air

transportation environment at that time. A significant driving force

for amending the flight time regulations in 1983 was that the

requirements under part 121 were so complicated that they had required

thousands of pages of interpretation and had sometimes been incorrectly

followed by air carriers.

A second significant factor justifying amendment of the rules in

1983 was their inflexibility. For example, although under the then

existing rule, air carriers were not considered in violation of the

rules if flight times were exceeded due to adverse weather conditions

or other circumstances beyond the control of the air carrier, an air

carrier did not have the flexibility to adjust scheduled rest periods

in the event of late arrivals or other factors. If a flight was late,

the subsequent flights often had to be delayed while substitute flight

crewmembers were brought in or while the flight crewmembers received

their scheduled rest periods.

A third factor affecting the pre-1983 rules was, under deregulation

of the air transportation industry, the number and variety of domestic

certificate holders dramatically increased. The complexity and variety

of the newer operations required that the FAA provide clear and simple

minimum safety criteria for all operators.

A fourth factor affecting the pre-1983 rules, and one related to

the changing character of the air transportation industry, was the

growth of commuter operations. Some commuter operations fall under part

121 domestic rules while others fall under part 135 rules. A question

existed as to whether either set of requirements effectively covered

these comparatively new and growing operations. Thus an additional aim

of the 1983-1985 rulemaking proceedings was to study the materials

submitted by the commuter industry group and incorporate the findings

into the applicable rules in order to provide, in this segment of the

industry, a level of safety equivalent to other air transportation

operations.

The 1983-1985 rulemaking proceeding was not the FAA's first attempt

to solve the previously described problems. For a number of years

before 1983 the FAA recognized that the flight time limits and rest

requirements needed to be clarified and substantively improved in those

areas where they were potentially inadequate. On several occasions the

FAA had attempted to correct the flight time limitation problems of

both parts 121 and 135 through rulemaking actions. But because of the

complexity of the flight time rules and the economic interests

affected, none of the previous proposals succeeded in resolving the

problems to the satisfaction of the affected parties. Given the

importance of the flight time rules in air transportation safety, the

FAA decided in 1983 to try an innovative approach that would bring the

affected parties together to negotiate a resolution.

1983-1985 Regulatory Negotiation

In 1983 regulatory negotiation was a new concept recommended by the

Administrative Conference of the United States. Basically, it was a

procedure by which representatives of all interests affected by a

rulemaking could be brought together to fully discuss the issues under

conditions conducive to narrowing or eliminating differences and to

negotiating a proposed rule acceptable to each interest. In accordance

with the recommended procedure, the FAA created an advisory committee

chartered under the Federal Advisory Committee Act. The committee was

comprised of persons representing the diverse interests affected by the

flight time rules, including persons representing flight crewmembers,

air carriers, air taxis, helicopter operators, and the public.

The committee met for 16 days in 1983 under the direction of a

convener/mediator and thoroughly discussed the major issues involved in

the regulation of flight time limits and rest requirements for domestic

operations under part 121 and for operations under part 135. Although

the committee did not reach consensus on any particular proposal, its

deliberations were successful in narrowing the differences among

parties and in reaching substantial agreement on some issues. In

addition, the committee identified major areas of concern and all

parties obtained significant, new information on a subject which had

been discussed, without resolution, for years. The committee

deliberations led to a notice of proposed rulemaking [49 FR 12136,

March 28, 1984] and then to a final rule [50 FR 29306, July 18, 1985].

The final rule reflected comments received from the organizations

represented on the Advisory Committee and from others. The final rule

accomplished the following major objectives:

(1) It resolved a series-of-flights problem in part 121, domestic

air carrier rules, thereby addressing many interpretation issues;

(2) It established a new rest period requirement in part 121,

domestic air carrier rules, for flight crewmembers scheduled to fly 8

hours or less in 24 consecutive hours and allowed greater scheduling

flexibility, including the introduction of a reduced rest period;

(3) It upgraded the requirements for all operations in part 135,

particularly scheduled operations; and

(4) It incorporated into the rules certain exemptions that had wide

applicability: The reduction of a 10-hour rest under part 135 under

certain conditions; the extension of flight time with augmented crews;

and the special limitations needed for helicopter medical emergency

services.

ARAC Flight/Duty Working Group

While the FAA's 1983-1985 flight time limitations rulemaking was a

step forward in dealing with rest and flight time issues, the

rulemaking was limited in its scope and did not address either flag or

supplemental operations under part 121. The FAA recognized at the time

that flag and supplemental rules would need to be updated because these

rules contained some of the same language and problems contained in the

domestic rules that were amended. Furthermore, though the 1985

rulemaking clarified some of the flight time and rest requirements, it

did not resolve the problems completely. Also, since the 1985

rulemaking, the complexity of the rules and

[[Page 65953]]

inconsistencies associated with various types of operations (domestic,

flag, and supplemental under part 121 and commuter and on-demand under

part 135) have continued to make application and interpretation

burdensome. A number of petitions to amend the various sections were

received (discussed in more detail later), as well as hundreds of

letters concerning the interpretation of rest requirements for flight

crewmembers assigned to a reserve status. Therefore, on June 15, 1992,

the FAA announced [57 FR 26685] the establishment of the Flight

Crewmember Flight/Duty Rest requirements working group (ARAC Flight/

Duty Working Group) of the Aviation Rulemaking Advisory Committee

(ARAC).

The ARAC had been established by the FAA in January 1991 [46 FR

2190, January 22, 1991] as a vehicle for convening representatives of

interested groups to assist the FAA in addressing regulatory problems

in a forum that could use, in a less formal setting, many of the

regulatory negotiation techniques that had been used by the 1983-1985

flight time limitations advisory committee. The working group's task

was to determine whether regulations pertaining to air carrier flight

duty and rest requirements are consistently interpreted and understood

by the FAA, air carriers, and pilots; to evaluate industry compliance/

practice regarding scheduling of reserve duty and rest periods; and to

evaluate reports of excessive pilot fatigue as a result of such

scheduling. The working group was to develop recommendations for

advisory material and a regulatory revision as appropriate.

Between its creation on June 15, 1992, and June 30, 1994, the ARAC

Flight/Duty Working Group met on numerous occasions. The chairman of

this working group (Dr. Donald E. Hudson of the Aviation Medicine

Advisory Service) submitted a preliminary report on February 1, 1994,

and a final report on June 30, 1994. The report indicated that while

the working group did not reach a consensus on the specific issues, the

working group did agree on four major areas that the FAA should address

in future rulemaking actions: Absence of a duty time limitation;

reserve scheduling; back-side-of-the-clock operations; and scheduled

reduced rest. Each of the four areas is briefly described here. Three

areas are specifically addressed in this rulemaking and one, back-side-

of-the-clock operations, is partially, though indirectly, addressed.

Continuous or indefinite duty could occur under the current rules

if flight crewmembers complete their daily schedule when delays

encountered are beyond the control of the certificate holder, no matter

how long it extends their duty period. The reserve scheduling issue

concerns questions such as, do the same rest period requirements apply

to flight crewmembers assigned to reserve duty as the rest period

requirements that apply to flight crewmembers assigned to scheduled

flights? Back-side-of-the clock operations refers to the question

whether special duty limitations and rest requirements should be

developed for operations that are scheduled during a flight

crewmember's normal sleep cycle. The scheduled reduced rest issue

concerns whether certificate holders should be allowed to schedule

reduced rest in advance or whether reduced rest should only be allowed

to deal with unavoidable delays.

Because no consensus could be reached, Dr. Hudson's final report

included proposals submitted by several members of the working group.

It also stated that there is enough clear scientific guidance available

to assist the FAA in establishing a regulatory ``safety floor'' that

will both address the identified issues and not unfairly penalize

carriers economically. The report further stated that there is not any

physiological justification for having different work rules for part

121 and 135 operators.

NASA Research Program

In 1980, in response to a Congressional request, the National

Aeronautic and Space Administration (NASA) Ames Research Center created

a Fatigue/Jet Lag Program to examine whether there are safety problems

due to transmeridian flying and fatigue in association with various

factors found in air transport operations. Since its inception, the

program has pursued the following three goals: (1) to determine the

extent of fatigue, sleep loss, and circadian disruption in both

domestic and international flight operations; (2) to determine the

impact of these factors on flight crew performance; and (3) to develop

and evaluate countermeasures to reduce the adverse effects of these

factors and improve flight crew performance and alertness. In 1991, the

NASA Ames Program was renamed the NASA Ames Fatigue Countermeasures

Program to highlight the increased focus on the third goal. Since the

beginning of the program, NASA has worked in close cooperation with the

FAA and with the airline industry to collect data and to provide the

findings of its extensive research as quickly as possible. This

research is fundamental to this proposal.

NASA Technical Memoranda reveal general principles pertinent to

scheduling flight crewmembers. The memoranda include but are not

limited to the following:

1. Crew Factors in Flight Operations II: Psychophysiological

Responses to Shorthaul Air Transport Operations. (NASA Technical

Memorandum 108856, November 1994)

2. Crew Factors in Flight Operations: Factors Influencing Sleep

Timing and Subjective Sleep Quality in Commercial Long-Haul Operations.

(NASA Technical Memorandum 103852, December 1991)

3. Principles and Guidelines for Duty and Rest Scheduling in

Commercial Aviation. (NASA Technical Memorandum, 1995)

Copies of these memoranda have been placed in the public docket for

this rulemaking.

These memoranda state that sleep, awake time off, and recovery are

primary considerations for maintaining alertness and performance

levels. Adequate sleep is essential to maintain alertness and

performance, a positive mood, and overall health and well-being. Each

individual has a basic sleep requirement. The average sleep requirement

is for 8 hours in a 24-hour period. Losing as little as 2 hours of

sleep in a 24-hour time period can result in acute sleep loss, which

will promote fatigue and degrade subsequent performance and alertness.

Over days, sleep loss will accrue into a cumulative sleep debt which

can only be reversed by sleep. An individual who has obtained required

sleep performs better even after long hours awake or during altered

work schedules. An individual who is fatigued typically shows a decline

in performance by requiring more time to complete a given task. Two

nights of an individual's usual sleep requirement will typically

stabilize the sleep pattern and restore acceptable levels of waking

alertness and performance. More frequent recovery periods reduce

cumulative fatigue more effectively than less frequent ones. For

example, weekly recovery periods afford a higher likelihood of

relieving acute fatigue than monthly recovery periods. Consequently,

regulations that ensure minimum days off per week are critical for

minimizing the effects of cumulative fatigue over longer periods of

time.

The NASA findings and recommendations have been summarized in a

1995 NASA Technical Memorandum titled ``Principles and Guidelines for

Duty and Rest Scheduling in Commercial Aviation.''

[[Page 65954]]

This is the first document that NASA intends to publish. This first

document is intended to be concise, focused on operational

considerations and to provide specific scientific input to this complex

issue. The second document will provide the specific scientific

references that support the principles and guidelines outlined in the

first document. The second document will be longer and will focus on

the scientific considerations related to these issues. NASA has assured

the FAA that the Technical Reports presently in the docket contain the

data on which the results and conclusions in both the first and second

document are based. While not every NASA finding or recommendation is

specifically reflected in this proposal, the overall thrust of this

proposal is consistent with those findings and recommendations.

Specific findings of the 1995 NASA memorandum are discussed and where

relevant referenced by paragraph number in the discussion of specific

proposals in this document.

National Transportation Safety Board Recommendations (NTSB)

Issues of fatigue in transportation have been of special concern to

the NTSB in all modes of transportation. In 1989, the NTSB made three

recommendations to the Department of Transportation (DOT) to encourage

an aggressive Federal program to address the problems of fatigue and

sleep issues in transportation safety:

Expedite a coordinated research program on the effects of fatigue,

sleepiness, sleep disorders, and circadian factors on transportation

system safety. (I-89-1)

Develop and disseminate educational material for transportation

industry personnel and management regarding shift work; scheduled work

and rest; and proper regimens of health, diet, and rest. (I-89-2)

Review and upgrade regulations governing hours of service for all

modes to ensure that they are consistent and that they incorporate the

results of the latest research on fatigue and sleep issues. (I-89-3)

Further NTSB recommendations were issued as a result of the August

18, 1993, Douglas DC-8-61 freighter crash at the Leeward Point Airfield

at the U.S. Naval Air Station, Guantanamo Bay, Cuba after the captain

lost control of the airplane on approach. The airplane was destroyed by

impact forces and a post accident fire, and the three flight

crewmembers sustained serious injuries. NTSB determined that among the

probable causes of this accident were impaired judgment, impaired

decision-making, and impaired flying abilities of the captain and

flightcrew due to the effects of fatigue.

In the letter accompanying the NTSB Safety Recommendations issued

as a result of the accident, the NTSB cited the fact that FAA's flight

and duty rules applicable to part 121 and 135 certificate holders, as

interpreted, allow flight crewmembers to conduct flights under part 91,

e.g., ferry flights for their certificate holders following the

completion of flights conducted under part 121 or 135, without having

to count these flight hours or duty time toward the part 121 or 135

flight time duty time limitations and rest requirements. The NTSB

concluded that ``the accident trip was under the provisions of a

combination of separate regulations that allowed extended flight and

duty times to be scheduled, contrary to safe operating practices.'' The

NTSB went on to note that the United States and France are the only

countries in the world that base their aviation hours of service

regulations on flight time, while most other countries base them on

duty time or a combination of duty and flight time.

As a result of the Guantanamo Bay accident, the NTSB issued the

following Safety Recommendations that relate to flight and duty time

limits:

(1) Revise part 121 to require that flight time accumulated in

noncommercial ``tail end'' ferry flights conducted under part 91, as a

result of 14 CFR, part 121, revenue flights, be included in the flight

crewmember's total flight and duty time accrued during those revenue

operations. (A-94-105)

(2) Expedite the review and upgrade of flight/duty time limitations

of the Federal Aviation Regulations to ensure that they incorporate the

results of the latest research on fatigue and sleep issues. (A-94-106)

The NTSB also reiterated an earlier recommendation that the FAA

require U.S. air carriers operating under 14 CFR part 121, to include,

as part of pilot training, a program to educate pilots about the

detrimental effects of fatigue, and strategies for avoiding fatigue and

countering its effects. (A-94-5)

Aviation Safety Reporting System

The FAA has recently examined incident reports submitted by pilots

to NASA's Aviation Safety Reporting System. Since January 1, 1986, NASA

has received several reports of situations resulting from fatigue from

pilots engaged in part 121 operations and 200 reports from pilots

conducting part 135 operations. Although these incidents did not

actually result in accidents, they were of a sufficiently serious

nature that pilots took the trouble to file a report with NASA with the

hope of gaining the attention of the regulatory authorities.

Petitions for Rulemaking

The FAA has received several petitions for rulemaking on flight,

duty, and rest requirements:

On June 1, 1989, the Air Transport Association of America (ATA)

petitioned the FAA to amend part 121, Subpart R of the FAR (which

contains the flight time limitations for flag operations). This

petition primarily addressed the need for rulemaking to address the

industry wide technological airplane changes that have taken place

since these rules were promulgated, such as airplanes that require only

two pilots on long distance flights and significant improvements in

cockpit automation and noise reduction. Specifically, the petition

requested that two-pilot flight crews be allowed to fly 12 hours

between required rest periods.

On June 22, 1990, the Air Line Pilots Association (ALPA) petitioned

the FAA to amend Secs. 121.471 and 135.265 to delete the reduced rest

provisions and to increase the required minimum rest for flight

crewmembers who are scheduled to fly fewer than 8 hours in a 24-hour

period to 10 hours with at least 8 hours in a rest facility; propose

longer rest for flight crewmembers who are scheduled to fly more than 8

hours or who make more than eight landings in a 24-hour period; limit

duty period time to 14 consecutive hours in a 24-hour period; mandate 1

calendar day free of duty every 7 days, even when flight crewmembers

are assigned reserve and/or training duties; and restrict air carriers

from interrupting a flight crewmember's rest by communicating with him

or her during a required rest period.

On September 12, 1990, the Regional Airline Pilot Association

(RAPA) petitioned to amend Sec. 135.265 of the FAR to delete the

reduced rest provisions for flight crewmembers who are scheduled to fly

in pressurized aircraft during a 24-hour period and increase the

minimum rest period to 10 hours with at least 9 hours in a rest

facility. For those crewmembers scheduled to fly in unpressurized

aircraft, and those who make more than seven landings in a 24-hour

period, RAPA petitioned to require a 12-hour rest with at least 10

hours in a rest facility. RAPA petitioned also for an amendment to

Sec. 135.265(a) of the FAR which would reduce the total flight time

allowed per year to 1,000 hours and per month to 100 hours.

[[Page 65955]]

On November 25, 1991, Mr. Thomas T. Gasta, a captain on turbo-jet

aircraft, petitioned the FAA to amend the definitions in part 1 of the

FAR to include a definition of rest that would ensure that a rest

period is free from restraint and free from responsibility for work.

Mr. Gasta's particular concern is to ensure that reserve time is not

considered rest.

The FAA has considered each of these petitions for rulemaking in

preparing this NPRM.

Commuter Rulemaking

The FAA has issued a proposed rulemaking that would affect commuter

operations, in general, including applicable flight time limitations

and rest requirements (Notice 95-5, 60 FR 16230; March 29, 1995).

The effect of Notice 95-5, if adopted, would be to apply the part

121 domestic flight time limitations and rest requirements to certain

commuter operations within the United States and the part 121 flag

flight time limitations and rest requirements to certain commuter

operations to or from the United States. Thus, that proposal would

eliminate the present differences between part 121 and part 135 flight

time limitations and rest requirements for affected commuter

operations. For all of the reasons discussed in this preamble, the FAA

has decided to propose one set of duty period limitations, flight time

limitations, and rest requirements for flight crewmembers engaged in

air transportation (domestic, flag, supplemental, commuter and on-

demand operations). Since, if adopted, this proposal would eliminate

all of the present differences between parts 121 and 135 in this

subject area, it overrides the related proposal and discussion in

Notice 95-5. Nonetheless, in any final rule action based on this

proposal, the FAA will consider, where relevant, any comments relating

to flight time limitations and rest requirements submitted in response

to Notice 95-5.

If the commuter rulemaking is issued as a final rule, the

compliance date for the flight time limitations and rest requirements

of that rule will be coordinated with the effective date of any final

rule that may be issued as a result of this NPRM, so that certificate

holders conducting commuter operations will have to change their

procedures for scheduling duty periods, flight time, and rest only

once.

The Proposal

General

This proposal is a preventive measure designed to address the

potential safety problems associated with fatigue-based performance

decrements. This proposal is not a response to specific accidents, but

rather to extensive data which shows a relationship between fatigue and

a decrement in performance. This proposed measure would place

limitations on flight crewmember hours of service by requiring certain

scheduling limitations and minimum rest periods.

The proposed rule would simplify existing flight crewmember flight

time limitations and rest requirements by replacing existing Subparts

Q, R, and S of part 121 with a new Subpart Q and revising most of

subpart F of part 135. Subpart Q of part 121 would not differentiate

between domestic, flag, and supplemental operations as current

regulations do, and subpart F of part 135 would not differentiate

between commuter and on-demand operations.

As stated previously, the proposed regulatory limitations for parts

121 and 135 are based in part on knowledge of effects of fatigue as

reflected in the scientific studies done by NASA. These proposed

amendments would be compatible with air carrier operations and would

provide reasonable, basic limitations that are conducive to safety.

The FAA considered a number of options prior to proposing those

outlined in this notice. The proposal in this notice takes a combined

approach based on duty period limitations, flight time scheduling

limitations, daily and weekly rest requirements, and requirements for

augmented flight crews. Since the studies concerning fatigue in flight

operations could not determine any fatigue based rationale for

differentiating between types of operations, a single proposed set of

scheduling limitations was selected for all types of operations. The

proposal is designed to provide science based parameters for duty

limitations and rest requirements and, at the same time, be

understandable to everyone involved in flight operations. The proposal

would establish a basic scheduling limitation for two pilot flight

crews of 14 hours of scheduled duty, 10 hours of scheduled flight time,

and 10 hours of scheduled rest. Certificate holders would have

additional flexibility under the proposal to increase the length of

scheduled duty periods, but only under certain conditions. The proposed

scheduled maximum 14 hour duty period, 10 hours of scheduled flight

time, and 10 hour rest period are consistent with the NASA ``Principles

and Guidelines'' (Specific Principles, Guidelines, and Recommendations

2.2.3 and 2.1.2, hereafter referred to as ``Recommendations'') for 2-

pilot crews.

Although not a proposal in this notice, the FAA also requests that

commenters provide scientific data concerning the amount of flight time

that two pilot flightcrews should be allowed to fly in a 14-hour duty

period, particularly on long range international flights that infringe

on the flight crewmember's window of circadian low (2 a.m. to 6 a.m. at

the crewmember's home base time).

Applicability

Proposed Secs. 121.471 and 135.261 state the applicability of these

amendments. Subpart Q in part 121 would provide duty period

limitations, flight time limitations, and rest requirements for flight

crewmembers in domestic, flag, and supplemental operations. Subpart F

in part 135 would provide duty period limitations, flight time

limitations, and rest requirements for commuter and on-demand

operations.

The proposed duty period limitations, flight time limitations, and

rest requirements would also be applicable to duty periods and flight

time performed for a certificate holder conducting part 91 operations,

as specified in proposed Secs. 121.1, 121.487, 135.1, and 135.275.

Terms and Definitions

Proposed Secs. 121.471 and 135.261 contain a list of terms and

definitions applicable to the proposed amendments.

The proposal defines ``approved sleeping quarters'' to mean an area

designated for the purpose of flight crewmembers obtaining sleep as

approved by the Administrator. See Advisory Circular 121-31,

``Flightcrew Sleeping Quarters and Rest Facilities'' for guidance on

methods obtaining FAA approval for aircraft used in part 121 and 135

operations. Sleeping quarters that are already in use that have been

determined to be adequate by the Administrator, such as bunks or other

horizontal surfaces, will not need to be reapproved because of this

proposed rule. The FAA recognizes that there is a difference between

the term ``adequate'' sleeping quarters and ``approved'' sleeping

quarters. Approved sleeping quarters could include additional

possibilities that were not part of ``adequate sleeping quarters'' as

previously interpreted. For example, formerly passenger seats were

never considered adequate for use as sleeping quarters. Recently,

however, a

[[Page 65956]]

new type of passenger seat has been developed that meets the guidelines

in AC 121-31 and therefore could be approved for use as sleeping

quarters by certificate holders operating under part 121 or part 135.

The proposed rule defines four kinds of time: assigned time, duty

involving flight time (referred to as ``duty period''), reserve time,

and rest (referred to as ``rest period''). Definitions of each of these

times, as well as other terms, as proposed in Secs. 121.471 and135.261,

are discussed below.

``Assigned time'' is time when the flight crewmember is assigned by

the certificate holder to activities other than flight duties. Assigned

time may include activities such as deadhead transportation, training,

loading baggage, taking tickets, administrative tasks and any other

assignments, excluding reserve time and required rest periods. Assigned

time may be performed as part of a duty period, in which case the

proposed duty period limitations and rest requirements in

Secs. 121.473, 121.475, and 135.263 would apply. Rest requirements

associated with assigned time that is not part of a duty period are

found in proposed Secs. 121.483(f) and 135.271(f).

The proposed rule defines ``duty period'' as the period of elapsed

time between reporting for an assignment involving flight time and

release from that assignment by the certificate holder. The time is

calculated using either Coordinated Universal Time or the local time of

the flight crewmember's home base.

The proposed rule defines two types of reserve: ``Reserve time''

and ``standby duty.'' ``Reserve time'' is defined as a period of time

when a flight crewmember must be available to report upon notice for a

duty period. The certificate holder must allow the flight crewmember a

minimum of 1 hour or more to report. Reserve time is not considered

part of a rest period and is not considered a duty period. Reserve time

does not include activities defined as assigned time. Reserve time ends

when the crewmember reports for a duty period, when the crewmember is

notified of a future flight assignment and released from all further

responsibilities until report time for that assignment, or when the

flight crewmember has been relieved for a rest period.

``Standby duty'' in the proposed rule must be treated just like any

other duty period associated with flight. Standby reserve duty is any

period of time when a flight crewmember is required to report for a

flight assignment in less than 1 hour from the time of notification. It

also includes time when a flight crewmember is required to report to

and remain at a specific facility (e.g., airport, crew lounge)

designated by a certificate holder.

The proposed rule defines ``rest period'' as the time period free

of all restraint or duty for a certificate holder and free of all

responsibility for work or duty should the occasion arise. Rest periods

are considered personal time. Rest periods are provided to give the

flight crewmember a predetermined opportunity for rest.

For example, if a flight crewmember is scheduled for a duty period

which ends on 1200 on Tuesday and requires 14 hours of rest and the

flight crewmember is not scheduled for another duty period until 1200

on Thursday, then the 48 hours between duty periods is considered a

rest period. The flight crewmember's minimum rest period requirements

would be satisfied after 14 hours from the time the duty period ended.

The air carrier may reschedule the flight crewmember, but must ensure

the minimum rest period requirements are satisfied. It should be noted

that the crewmember cannot be required by the air carrier to contact

the air carrier, answer the phone, carry a beeper, remain at a specific

location or in any other way be responsible to the air carrier during a

scheduled rest period. This does not prohibit the flight crewmember

from contacting the air carrier at his or her own discretion.

For clarification purposes, the proposal also defines a ``calendar

day'' as the period of elapsed time, using Coordinated Universal Time

or local time, that begins at midnight and ends 24 hours later at the

next midnight. The definition is needed because certificate holders

have been confused about the application of the term. ``Calendar day''

is defined in the proposed rule in a manner consistent with past

interpretations of the rule.

Also, for clarification purposes, the proposal defines

``operational delays'' as delays that are beyond the control of the

certificate holder such as those that would be caused by weather,

aircraft equipment malfunctions, and air traffic control delays. It

would not include late arriving passengers, late food service, late

fuel trucks, or delays in loading baggage, freight, or mail, or similar

events.

Flight Crewmember Duty, Flight, and Rest

Proposed Secs. 121.473, 121.475, and 135.263 would establish

maximum scheduled duty periods and a maximum scheduled amount of flight

time for flight crewmembers within the maximum scheduled duty period.

In addition, the proposal would establish minimum rest requirements for

flight crewmembers, including requirements that apply when flight crews

are augmented and when on board rest facilities are provided.

Current rules are primarily based on flight time. In addition, in

some cases the current rules are based on actual rather than scheduled

flight time. The major basis for the proposed rule is scheduled duty.

The reason for going to a scheduled duty rule is that it is more

consistent with current studies relating to fatigue.

For the purposes of assignments involving flight time, the duty

period includes the total elapsed time between when the flight

crewmember reports for a flight assignment, as required by the air

carrier, and when the flight crewmember is relieved from duty by the

air carrier. A typical duty period for a flight crewmember would

consist of pre-flight duties and post-flight duties assigned by the air

carrier. Pre-flight safety duties include aircraft emergency equipment

checks, flight planning/dispatch related duties, and complying with the

certificate holder's approved operations manual.

At least one industry study and information obtained from

crewmembers indicates that air carriers vary in how early they require

flight crewmembers to check in to begin their duty periods and pre-

flight duties. This check-in or report time varies depending on the

type of equipment flown and the flight destination. Carriers typically

require flight crewmembers to arrive 30 minutes to 1 hour before

scheduled departure. For international flights some carriers require

flight crewmembers to report for duty up to 2 hours before departure.

Post-flight safety duties include the post-landing duties, safe

deplaning of passengers, duties related to securing the aircraft, and

administrative responsibilities such as reporting inoperative equipment

to maintenance personnel. Typically, flight crewmembers are required to

remain on duty after the aircraft arrives at the gate to accomplish

these post-flight duties before they are relieved from duty.

A duty period may also include activities defined as ``assigned

time,'' as discussed under ``Terms and Definitions,'' above.

Thus, a flight crewmember's duty period is not solely a function of

whether the aircraft is airborne. Flight crewmembers perform important

safety duties during boarding and deplaning. This proposal, therefore,

is based on duty periods that include flight time

[[Page 65957]]

rather than solely on flight time. The FAA expects certificate holders

to establish realistic report and release times to allow flight

crewmembers sufficient time to complete these essential pre-flight and

post-flight safety activities.

Proposed Secs. 121.473 and 135.263 would provide for different duty

period limits based on the number of pilots assigned. Each duty period

would have a scheduled flight time limit and would be followed by a

required rest period. NASA (Recommendation 2.3.6) recognizes that the

use of additional flight crewmembers justifies longer duty periods if

the flight crewmembers are provided on-duty sleep opportunities.

To allow flexibility a scheduled duty period could be extended two

hours if the extension is needed because of operational delays. Rest

periods may be reduced by up to one hour only if the reduction is

needed because of operational delays and then only if the pilot has not

exceeded the pilot's scheduled maximum duty-period limitations. If a

rest period is reduced, the next rest period would have to be extended.

Table 1 provides a summary of the proposed limitations on duty

periods and flight time and the proposed rest requirements for pilots.

For one- and two-pilot crews. In proposed Sec. 135.263(b), the

basic duty period scheduling limitation for a one-pilot crew would be

14 hours, including no more than 8 scheduled hours of flight time. In

proposed Secs. 121.473(b) and 135.263(c), the basic duty period

limitations for a two-pilot crew would be 14 hours, including no more

than 10 scheduled hours of flight time. The minimum rest period for

one- and two-pilot crews would be 10 hours. The proposed 10-hour limit

on scheduled flight time and the proposed 10-hour minimum rest are

consistent with NASA Recommendations 2.3.3 and 2.1.1, respectively.

These proposed duty periods for one- and two-pilot crews could be

extended to 16 hours due to operational delays. The rest periods may be

reduced to 9 hours if the actual duty period is not more than 14 hours

and if the reduction is needed due to operational delays. If the rest

period is reduced the next rest period would have to be a minimum of 11

hours. A duty period extended due to operational delays may involve

longer than scheduled flight time.

Table 1.--Pilot Duty Period, Flight Time and Rest Requirements

--------------------------------------------------------------------------------------------------------------------------------------------------------

Rest hours

Minimum following Extended duty period

No. of pilots Duty period hours Flight time hours rest Reduced rest hours reduced rest hours \2\

hours \1\ (compensatory)

--------------------------------------------------------------------------------------------------------------------------------------------------------

1 (part 135)...................... No more than 14...... No more than 8....... 10 9, May only be 11 Up to 16 only if due

reduced if duty to operational

period has not delays

exceeded 14.

2................................. No more than 14...... No more than 10...... 10 9, May only be 11 Up to 16 only if due

reduced if duty to operational

period has not delays

exceeded 14.

3................................. No more than 16...... No more than 12...... 14 12, May only be 16 Up to 18 only if due

reduced if duty to operational

period has not delays

exceeded 16.

3 Each pilot must have sleep More than 16, but no No more than 16...... 18 16, May only be 20 Up to 20 only if due

opportunity and approved sleeping more than 18. reduced if duty to operational

quarters must be available. period has not delays

exceeded 18.

4 Each pilot must have sleep More than 18 but no No more than 18...... 22 20, May only be 24 Up to 26 only if due

opportunity ad approved sleeping more than 24. reduced if duty to operational

quarters must be available \3\. period has not delays

exceeded 24.

--------------------------------------------------------------------------------------------------------------------------------------------------------

\1\ Rest periods may be reduced only when the actual duty period does not exceed the maximum scheduled duty period for that crew composition and if the

pilot is provided a compensatory rest period. This compensatory rest period must be scheduled to begin no later than 24 hours after the beginning of

the reduced rest period.

\2\ The flights to which the pilot is assigned must at block out time be expected to reach their destination within the extended duty period.

\3\ Applies only to duty periods with one or more flights that land or take off outside the 48 contiguous states and DC.

Longer Duty Period for a 3-Pilot Crew. Under proposed

Secs. 121.473(c) and 135.263(d), the certificate holder may schedule up

to a 16-hour duty period with up to 12 hours of flight time if 3 pilots

are assigned to the flight. The required rest would be 14 hours. This

duty period could be extended to 18 hours due to operational delays.

The required rest could be reduced to 12 hours if the actual duty

period is not more than 16 hours. If the rest is reduced the next rest

would have to be 16 hours.

Longer duty period for three-pilot flightcrews with approved

sleeping quarters. Under proposed Secs. 121.473(d) and 135.263(e), if

three pilots are assigned and if approved sleeping quarters are

provided, the scheduled duty period can be up to 18 hours with a

scheduled flight time limit of 16 hours. The required rest would be 18

scheduled hours. Each pilot must be given an opportunity to rest in

approved sleeping quarters. The duty period could be extended to 20

hours due to operational delays. The rest could be reduced to 16 hours

if the actual duty period is not more than 18 hours. If the rest is

reduced, the next rest would have to be 20 hours.

Longer duty period if outside the U.S., four pilots, and approved

sleeping quarters. Under proposed Secs. 121.473(e) and 135.263(f), if

the duty period involves one or more flights outside the 48 contiguous

states, if four pilots are assigned, and if approved sleeping quarters

are provided, the scheduled duty period can be up to 24 hours with 18

hours of scheduled flight time. Each

[[Page 65958]]

pilot must be given an opportunity to rest in flight in approved

sleeping quarters. The required scheduled rest following the duty

period would be 22 hours. The duty period could be extended to 26 hours

due to operational delays. The rest could be reduced to 20 hours if the

duty period is not greater than 24 hours. If the rest is reduced, the

next rest would have to be 24 hours.

Reporting for a duty period. The effect of the proposal is that if

a flight crewmember reports for duty, including standby duty, as

required and finds that the flight assignment was incorrectly scheduled

or that the flight is delayed or canceled, a duty period nevertheless

would have begun. For example, a flight crewmember may report for duty

as scheduled, only to find that the assigned report time is incorrect

and that duty actually begins 2 hours later. The carrier could either

keep the flight crewmember on duty or release the flight crewmember for

a complete rest period under the applicable section of this proposed

rule. While the rule language does not spell out in detail this kind of

example, or application, this is how the concept of duty period would

work.

Extension of duty periods. The intent of this proposed rule is to

ensure that flight crewmembers are provided adequate opportunity to

rest through properly scheduled duty periods, flight times, and rest.

Regular delays on certain routes or deviations from certain schedules

would indicate that the schedules need to be adjusted to comply with

the proposed limitations. The proposal acknowledges that certain

delays, such as adverse weather, cannot be anticipated. A flight

crewmember would not be considered to be scheduled for flight time or a

duty period in excess of flight time or duty period limitations if the

flights to which he is assigned are scheduled and normally terminate

within the limitations, but due to operational delays (such as adverse

weather conditions, equipment malfunctions, and air traffic control)

are not at block out time expected to reach their destination within

the scheduled time. Operational delays do not include late arriving

passengers, late food service, late fuel trucks, delays in handling

baggage, freight, or mail, or similar events. (See proposed

Secs. 121.473, 121.475, 121.479, 135.263, 135.267.)

The FAA is proposing limiting the extension of any scheduled duty

period due to operational delays to no more than 2 hours. If at any

time during a duty period it is determined that, due to operational

delays, a scheduled flight will not terminate within the scheduled

termination of that duty period plus 2 hours, then the flight

crewmembers must be relieved of duty before initiating that flight

segment. They may be scheduled for another flight as long as that

flight is scheduled to terminate within the original scheduled duty

period limitations plus two hours. The FAA believes that 2 hours

provides flexibility in the event of operational delays and also limits

the possibility of flight crewmembers being on a continuous duty period

even when the duty period is extended due to circumstances beyond the

control of the certificate holder. The limit on flight time hours is

discussed elsewhere in this preamble.

Certificate holders would be expected to recognize when certain

schedules need adjustment due to regularly experienced or seasonal

delays.

Augmented Flight Crews

The longer scheduled duty periods that would be allowed under

proposed Sec. 121.473 (c), (d), and (e) and Sec. 135.263 (c), (d), and

(e) are contingent upon the assignment of additional pilots in order to

maintain safety by distributing the workload and permitting more rest.

This will ensure that pilots are alert and can contribute to safe

operations. It is important to note that if a pilot is scheduled for a

duty period longer than 14 hours, the appropriate number of additional

pilots would have to be present on every flight segment within that

duty period. In practical terms, the FAA expects that this would occur

on larger aircraft and, generally, long-haul operations with relatively

few flight segments. This result would be consistent with the intent of

the proposal and consistent with current industry practice.

It should be noted, however, that if a flight crew with additional,

non-required pilots is assigned a duty period of 14 hours or less, the

certificate holder may follow Sec. 121.473(b) or Sec. 135.263(b),

(i.e., provide a rest period of 10 hours).

Proposed Secs. 121.473 (d) and (e) would require opportunities for

flightcrew members to rest and availability of approved sleeping

quarters for duty periods of more than 16 hours. The provision for

additional flight crewmembers and for on board sleeping quarters takes

into account the extended time flight crewmembers may be on duty to

complete long range flight segments. Existing rules, (Secs. 121.483,

121.485, 121.507, 121.509, 121.521, 121.523) require augmented

flightcrews for longer duty periods.

Existing rules in some cases, under present Sec. 121.523(c), allow

a scheduled duty period of 30 hours; however, the FAA believes that 24

hours should be the limit of any scheduled duty period.

This proposal does not provide for substituting flight engineers

for pilots. Rather the augmentation of pilots must take place

regardless of the number of flight engineers assigned.

Reduction of the rest period. In order to provide additional

flexibility, the FAA is proposing to allow the reduction of rest due to

operational delays. The rest period may be reduced only if the maximum

scheduled duty period limitation has not been exceeded or extended.

Table 1 provides information on reduced rest periods followed by

compensatory rest periods.

Flight Engineers

Proposed Sec. 121.475 would provide similar requirements for flight

engineers. Table 2 provides a summary of the proposed limitations on

duty periods and flight time and the proposed rest requirements for

pilots and flight engineers. Present part 121 rules for domestic

operations do not contain separate flight time limitation requirements

for flight engineers. The flag and supplemental operations rules

(Secs. 121.493 and 121.511) deal with flight engineers by referencing

other sections within the applicable subpart. To avoid any possible

confusion as to which flight time limitation rules apply to flight

engineers, the FAA proposes in Sec. 121.475 to address flight engineers

separately.

[[Page 65959]]

Table 2.--Flight Engineer Duty Period, Flight Time and Rest Requirements

--------------------------------------------------------------------------------------------------------------------------------------------------------

Rest hours

Minimum Reduced rest hours following Extended duty period

No. of flight engineers Duty period hours Flight time hours rest hours (\1\) reduced rest hours \2\

(compensatory)

--------------------------------------------------------------------------------------------------------------------------------------------------------

1................................. No more than 14...... No more than 10..... 10 9, May only be 11 Up to 16 only if due

reduced if duty to operational

period has not delays

exceeded 14.

1................................. No more than 16...... No more than 12..... 14 12, May only be 16 Up to 18 only if due

reduced if duty to operational

period has not delays

exceeded 16.

2 Each flight engineer must have More than 16, but no No more than 16..... 18 16, May only be 20 Up to 20 only if due

sleep opportunity and approved more than 20. reduced if duty to operational

sleeping quarters must be period has not delays

available. exceeded 18.

2 Each flight engineer must have More than 18 but no No more than 18..... 22 20, May only be 24 Up to 26 only if due

sleep opportunity and approved more than 24 \3\. reduced if duty to operational

sleeping quarters must be period has not delays

available. exceeded 24.

--------------------------------------------------------------------------------------------------------------------------------------------------------

\1\ Rest periods may be reduced only when the actual duty period does not exceed the maximum scheduled duty period for that crew composition and if the

flight engineer is provided a compensatory rest period. This compensatory rest period must be scheduled to begin no later than 24 hours after the

beginning of the reduced rest period.

\2\ The flights to which the flight engineer is assigned must at block out time be expected to reach their destination within the extended duty period.

\3\ Applies only to duty periods with one or more flights that land or take off outside the 48 contiguous States and DC.

Reserve and Standby Assignments

Current regulations do not specifically cover the issue of reserve

time and standby duty. Within the air transportation industry two types

of generic reserve assignments have developed. One type, usually

referred to as ``standby reserve,'' is essentially the same as a duty

period, and as discussed below would be treated as duty for duty period

limitation and rest requirement purposes. The other type, here called

``reserve time'' is not considered part of a rest period and is not

considered part of a duty period and therefore would be dealt with

separately under this proposal. Proposed Secs. 121.477 and 135.265

provide reserve assignment requirements.

Under the proposal a standby duty period must be scheduled in

accordance with proposed Secs. 121.473, 121.475, or 135.263. A standby

duty ends when the duty period associated with a subsequent flight

assignment ends or the flight crewmember is relieved from standby duty

for a scheduled rest period.

Standby duty periods are assigned because the air carrier believes

that some time within that period the flight crewmember will be needed

for a flight assignment and must report for flight assignment within

less than 1 hour of being notified. Standby duty also includes time

when a flight crewmember is required to report to and remain at a

specific facility (e.g., airport, crew lounge) designated by a

certificate holder. Usually flight crewmembers are assigned to standby

duty at the airport. In addition, since the industry has indicated that

they treat standby as duty, this proposed definition should not impose

any additional burdens on certificate holders. It is because of the

momentary anticipation of a flight assignment, which prevents a pilot

from planning for adequate rest, that standby assignments are treated

as duty periods.

The proposed standby duty period would be treated as a duty period

that is associated with flight, regardless of whether the flight

crewmember is ever assigned to flight time during that standby duty

period or not. Standby duty periods would be scheduled in accordance

with proposed duty period limitations, flight time limitations, and

rest requirements. A standby duty period commences when the flight

crewmember is placed on standby duty and ends when the flight

crewmember is relieved of duty, whether that duty is standby or flight.

Following standby duty, the flight crewmember must be scheduled for and

must receive the same amount of rest as he or she would receive if he

or she accumulated flight time, even if there is no actual flight time.

Reserve time is a period of time when a flight crewmember is not on

duty but nonetheless must be available to report upon notice for a duty

period. During reserve time a flight crewmember typically goes about

his or her off duty routine, obtaining rest as needed during each 24

hour period. Reserve time is not considered part of a rest period, is

not considered part of a duty period, and is not considered assigned

time. Reserve time ends when the crewmember is released, the crewmember

is notified of a future duty period assignment and released from all

further responsibility until the report time for that assignment, or

the crewmember reports for a duty period. The certificate holder must

allow the flight crewmember a minimum of 1 hour to report.

Often flight crewmembers are on reserve for days at a time and are

given 10 or more hours notification prior to a duty period assignment.

However, there are times when a flight crewmember is given fewer than

10 hours notification and may not be completely rested. Some flight

crewmembers arise early in the morning and may have been awake for many

hours at the time they receive notification of an evening flight. These

flight crewmembers may not have an opportunity for a complete rest

period before the flight assignment. The same may be true of a flight

crewmember who does not awaken until the middle of the afternoon and

receives fewer than 10 hours notification of a duty period which starts

after midnight.

Since it is difficult to predict when an individual flight

crewmember sleeps and when he or she awakens, no attempt has been made

in the proposal to correlate the amount of notice a flight crewmember

should receive with the time of day. Rather, the emphasis is placed on

the flight crewmember's receiving enough notice to provide an

[[Page 65960]]

opportunity for rest before the duty period assignment. If a flight

crewmember receives at least 10 hours notice there would be enough time

for the flight crewmember to be fully rested before reporting for a

duty period of 14 hours. However, under proposed Secs. 121.477(b) and

135.265(b), when flight crewmembers receive fewer than 10 hours notice

for a duty period assignment, there is a reduction in the length of

that duty period. While it could be possible for a flight crewmember to

receive 10 hours rest before being placed on reserve and then given 10

hours of notification in order to serve a 14-hour duty period, the FAA

believes that efficient crew scheduling will minimize the possibility

of this happening. Table 3 shows for each proposed amount of

notification time the proposed corresponding duty period limitation.

Proposed Secs. 121.477(b)(2) and 135.265(b)(2) would provide

another option under which a flight crewmember could be given a minimum

6-hour period of protected time for each 24 hours of reserve time.

During this 6-hour period of protected time the certificate holder

would not be able to contact the flight crewmember or assign the flight

crewmember to any duty. The 6-hour period must be assigned before the

flight crewmember begins the reserve time assignment and must occur at

the same time during each 24-hour period during a reserve time

assignment. Any duty period assignment must be scheduled to be

completed within the 18-hour reserve time, exclusive of the 6 hours of

protected time. The length of the duty period and the subsequent rest

period must be in accordance with Secs. 121.473, 121.475, or 135.263.

The FAA believes that this option would allow flexibility for the

certificate holder while giving the flight crewmember sufficient

certainty to plan for and obtain adequate rest. While the 6 hours of

protected time must be the same 6 hours for any reserve assignment, it

could be a different 6 hours for subsequent reserve assignments (e.g.,

a subsequent reserve assignment following duty or assigned time).

Under either reserve time assignment option, the flight crewmember

must be notified of which option has been selected before the beginning

of the reserve time assignment.

Although NASA recommends a predictable and protected 8-hour sleep

opportunity (2.6.2), the FAA believes that the above described options

are practical and in most instances will provide at least an 8-hour

rest opportunity. Either the flight crewmember is provided an

opportunity for a full 10-hour rest period or, in the case of a short

notice, the flight crewmember's duty period is limited, or the flight

crewmember is able to plan each day with the certain knowledge there

will be a minimum 6-hour period for undisturbed rest. Thus, these

options would protect against excess fatigue without eliminating the

objective of the reserve system and without placing a significant

economic burden on the industry.

There have been a number of complaints stating that in some cases

pilots were unable to obtain enough rest because they were given a

reserve assignment immediately following a duty period and then were

called for duty before they had received an adequate rest. While under

these proposed rules such a practice would be a violation because of

the requirement for a minimum rest period between duty periods, the FAA

has included in proposed Secs. 121.477(b) and 135.265(b) a requirement

that a flight crewmember must be given a 10-hour rest period before

beginning a reserve time assignment. Sections 121.483(c) and 135.271(c)

state that required rest periods can occur concurrently so this

proposed requirement may not require an additional rest period.

The FAA believes that both of these methods of handling reserve

time assignments would provide more flexibility, would be less costly

for certificate holders, and would be more likely to ensure adequate

rest than the current rules. Under the lookback provision in the

current rules, for instance, a flight crewmember on reserve could not

take a flight assignment unless he or she had a scheduled rest period

in the previous 24 hours. There have been situations in which

certificate holders have professed experiencing difficulties in

implementing rest requirements for flight crewmembers on reserve.

Recognizing this, the FAA has developed this proposal. However, if this

proposal on reserve time assignments is not issued as a final rule, the

FAA intends to ensure that the current rule, as interpreted, is being

correctly implemented.

Other Proposals on Reserve Time Presented During ARAC Discussions

Southwest Airlines proposed a system under which the total of

reserve time and ``time engaged in scheduled air transportation'' could

not exceed 18 hours (16 hours if this period included any time during

the hours between 0300 and 0459). In addition, Southwest proposed that

reserve time between 0001 and 1000 not be included if the air carrier

did not contact the crewmember during that period. One option presented

by the Air Line Pilots Association is similar to Southwest's proposal.

ALPA would not allow reserve time and duty time to exceed 16 hours. A

14-hour maximum would apply when the duty time is not contained with

the period between 0500 and 0259.

The FAA has several concerns about this approach. First, we believe

it will be difficult to understand and to apply consistently. More

importantly, although it appears to provide for some reductions in duty

time, depending on the time of day a crewmember is notified of a flight

assignment, it does not expressly provide for any dedicated rest

opportunity. Moreover, it is not clear exactly what would be

encompassed by Southwest's term ``time engaged in scheduled air

transportation.'' The FAA requests that commenters supporting this

approach provide additional details about this alternative and

operational scenarios on how it would be applied. Commenters should

provide information on how this alternative does or does not provide

the flexibility of the options proposed in this NPRM, and how this

alternative provides an equivalent level of safety to the options

proposed here.

The International Brotherhood of Teamsters proposed two

alternatives for reserve duty. The first alternative proposes that a

crewmember could be assigned a reserve period of 24 consecutive hours

if the crewmember is given 11 hours or more advance notification for a

flight assignment. The second alternative would allow a crewmember to

be assigned a reserve period of up to 12 consecutive hours if the

crewmember is given less than 11 hours of advance notification. In this

case, the total flight time and duty time could not exceed 17 hours.

The FAA believes that both of these options unnecessarily limit the

scheduling flexibility of the operator and that both would greatly

increase operators' costs while providing no increase in safety when

compared with the reserve options proposed in this NPRM.

The Air Transport Association would give the operator five

alternatives for dealing with reserve time. (1) The carrier could give

the employee at least eight consecutive hours of rest during any 24

hour period on reserve; (2) The carrier could give the crewember at

least 10 hours of advance notice of any assignment, at which point the

crewmember would be released on rest until the time to report; (3) The

carrier could not assign the crewmember on

[[Page 65961]]

reserve to flights between midnight and 5 a.m.; (4) The carrier could

assign the crewmember on reserve to no more than two flight segments;

or (5) The carrier could establish alternative policies and procedures

to ensure that a crewmember will not be assigned to a flight unless

that crewmember is ``adequately rested for that flight assignment.''

The first three ATA proposals are generally similar to this NPRM.

The NPRM contains the option of blocking out a protected period of at

least six hours during which the crewmember could not be disturbed by

the employer. This is less restrictive than ATA's proposal (1),

although it involves a slightly longer period than would be provided by

proposal (3). Like ATA's proposal (2), the NPRM would provide for

advance notice of assgnments. However, the NPRM is not limited to a

single cut-off of 10 hours' notice. Carriers would be permitted to

assign crewmembers to duty periods that vary with the amount of advance

notice, down to as little as 4 hours' notice. Since ATA's proposal

number (4) does not address rest at all, it is not included in the

NPRM. Proposal number (5) sets no minimum standards for rest, and it,

too, is therefore not part of this NPRM.

The Air Line Pilots Association, in addition to the alternative

described above, offered a proposal somewhat similar to that of ATA.

ALPA's proposal appears intended to provide more stability for pilot

rest periods; it would not permit carriers to move the eight hour rest

period more than three hours in any 24-hour period. Similarly, ALPA

proposed a six-hour protected period, comparable to the five-hour

period proposed by ATA. Our comments on ATA's proposal apply to ALPA's

as well, i.e., we believe we have accomodated much of their objectives.

Another proposal advanced during the ARAC discussions came from a

labor/pilot group consisting mainly of Part 135 pilots. This proposal

would limit any combination of reserve time and duty periods to no more

than 18 hours or any duty assignment to no more than 14 hours. After

being on reserve for 18 hours, a crewmember would have to receive a 10-

hour rest period before accepting another reserve assignment. This

proposal is not included in the NPRM because it unnecessarily limits

the air carrier's reserve scheduling flexibility and provides no

increase in safety when compared with the options proposed in the NPRM.

Table 3.--Advance Notification

--------------------------------------------------------------------------------------------------------------------------------------------------------

No. of hours notification prior to 8 or more hours but 6 or more hours but 4 or more hours but

report time 10 hours or more less than 10 less than 8 less than 6 Less than 4 hours

--------------------------------------------------------------------------------------------------------------------------------------------------------

Maximum scheduled duty period...... Maximum scheduled duty No more than 12 hours. No more than 10 hours No more than 8 hours. No more than 6 hours.

period \1\.

--------------------------------------------------------------------------------------------------------------------------------------------------------

\1\ Maximum scheduled duty period could be 14, 16, 18, or 24 hours.

Additional Duty Period Limitations and Reduced Rest

Current Secs. 121.471(g) and 135.263(d) state that a flight

crewmember is not considered to be scheduled for flight time in excess

of the flight time limitations if the flights to which he or she is

assigned normally terminate within the limitations, but due to

circumstances beyond the control of the certificate holder (such as

adverse weather conditions) are not at block out time expected to reach

their destination within the scheduled time. These requirements do not

specify a limit to the flight time extensions under these

circumstances.

In theory, under the current rule language, duty periods could be

extended for unlimited periods of time as long as the extension was due

to operational causes beyond the control of the air carrier such as

weather, mechanical problems, and Air Traffic Control situations. This

could result in flight crewmembers who, after the first flight of a

flight schedule in a duty period, would be as much as 6 hours late, but

would still continue with the flight schedule. The NASA Scientific

Working Group determined that extended duty periods with no limit on

the amount of time which the duty period could be extended was one of

the major fatigue related problems with current flight crewmember

assignments (Recommendations 1.4, 2.1.2, and 2.3.3). Therefore, the FAA

has proposed to place a limit on the amount of time that a duty period

may be extended regardless of the nature of the delay.

Proposed Secs. 121.473, 121.475, and 135.263 would allow

certificate holders an extension of a duty period of not more than 2

hours beyond the maximum scheduled duty period if the extension is due

to operational delays not under the control of the certificate holder.

The proposed requirements would also allow the reduction of the

required rest if the flight crewmember has not exceeded the required

duty period (without the extension), if the flight crewmember is

provided with a longer subsequent rest period as specified, and if the

reduction in rest is due to operational delays. Reduced rest periods

may not be scheduled in advance.

Proposed Secs. 121.479 (a) and (b) and 135.267 (a) and (b) would

state that a flight crewmember is not considered to be scheduled for a

duty period or flight time in excess of the duty period or flight time

limitations if the duty period or flight times to which the flight

crewmember is assigned are scheduled and normally terminate within the

limitations, but due to operational delays are not at block out time

expected to reach their destination within the scheduled duty period or

flight time.

In addition, proposed Secs. 121.479(a) and 135.267(a) state that a

flight crewmember may not serve as a crewmember in an aircraft if, at

block out time for the purpose of flight, that flight crewmember's

actual elapsed duty time plus duty time scheduled for the next flight

will cause the flight crewmember to exceed the applicable duty period

limitations by more than two hours. However, there is no limit on

actual flight time accrued during a duty period, if the additional

flight time is due to operational delays, but in any event the duty

time limit may not be extended by more than 2 hours.

The proposal would allow a certificate holder the flexibility to

schedule the same crew on a flight even when that flight is going to be

late; however, it would not allow flight crewmembers to be scheduled

indefinitely even when the circumstances which caused them to be late

are beyond the control of the certificate holder. During a scheduled

flight assignment, if the combination of scheduled times for the

remaining flights would mean that the maximum scheduled duty period

would be exceeded by more than two hours, the flight crewmember would

have to be

[[Page 65962]]

rescheduled so that the remaining duty period to which he or she is

assigned will not exceed the maximum scheduled duty period by more than

two hours. This can be done by assigning a flight crewmember to a new

flight schedule or by reassigning the original scheduled flights so the

flight crewmember is relieved of duty before commencing the flight

which would extend beyond the maximum scheduled duty period plus two

hours.

Weekly and Monthly Flight Time Limitations

Proposed Secs. 121.481 and 135.269 would provide limits on the

amount of actual flight time which a flight crewmember can accrue in a

calendar month and in any 7 consecutive calendar days. These proposed

rules would replace current Secs. 121.471(a), 121.481 (d), (e), and

(f), 121.503 (d) and (e), 135.265(a) and 135.267(a). Although NASA

states that there is insufficient scientific information to provide

guidance in this area, these limits are proposed to counter any harmful

effects of any possible cumulative fatigue.

In addition to the scheduled flight time limits which are

integrated into the scheduled duty periods, weekly and monthly flight

time limits are proposed as follows:

Proposed Secs. 121.481(a) and 135.269(a) would limit a

flight crewmember to 32 flight hours in any 7 consecutive calendar

days.

Proposed Secs. 121.481(b) and 135.269(b) would limit a

flight crewmember to 100 flight hours in any calendar month.

In practice, this means that, before beginning to fly on any

particular day, a flight crewmember's actual accrued flight time for

the previous six days must be added to the flight time scheduled to be

flown that day. If the result is fewer than 32 hours, the flight

crewmember may begin and complete the day's scheduled flying even if

delays (which are beyond the carrier's control) encountered during the

day eventually cause the total time to exceed 32 hours. The same

principle applies for the calendar month flight time limitation.

Current regulations place varying limits on the amount of time that

a flight crewmember can serve. The variance is based on the type of

operation. Flight crewmembers given flight assignments under part 121

for domestic operations (Sec. 121.471(a)) are limited to 30 flight

hours in any 7 consecutive days. The 7 consecutive day limit for flag

operations is 32 flight hours (Sec. 121.481(d)) and there is no 7

consecutive day limit for supplemental operations. Under

Sec. 135.265(a) in scheduled operations the amount of flight time which

may be accrued in any 7 consecutive days is 34 hours and there is no 7

consecutive day limit for unscheduled operations. Sections 121.471(a)

and 121.481(e) restrict flight crewmembers serving in domestic or flag

operations conducted under part 121 to 100 hours in any calendar month

and Sec. 121.503(d) restricts flight crewmembers serving in

supplemental operations to 100 flight hours in any 30 consecutive days.

Section 121.521(c) allows certain flight crewmembers to accrue 120

hours in any 30 consecutive days. Section 135.265 allows flight

crewmembers serving in part 135 scheduled operations to accumulate 120

flight hours in any calendar month.

In addition, Sec. 121.471(a) restricts flight crewmembers engaged

in domestic operations conducted under part 121 to 1000 hours in any

calendar year. Section 135.265 allows flight crewmembers serving in

part 135 scheduled operations to serve as crewmembers during flight for

1200 hours in any calendar year, while Sec. 135.267 allows 1,400 flight

hours in a calendar year for unscheduled operations. Sections 121.503,

121.521, 135.267, and 135.269 also provide other calendar quarter and

90 consecutive day limitations.

The proposed rule would establish a common 32 hour limitation in

any 7 consecutive days, a 100 hour limitation in any calendar month,

and would eliminate quarterly, 90 consecutive day and calendar year

limitations.

The proposed rule does not provide a yearly flight time limitation

because the monthly limit would effectively restrict flight time to

1200 hours in a calendar year. Although the NASA document recommends

the annual flight time limitations be decreased a percentage of the

monthly requirement, it also states that there is not enough scientific

data to provide specific guidance in this area. The FAA believes that

this proposal contains sufficient additional rest provisions (i.e. 36

hours in 7 days, 10 hour rest periods, and 48 hours for crossing

multiple time zones). Because of the increase in rest requirements, the

FAA believes that safety would not be adversely affected because of a

lack of a yearly flight time limit which is less than the sum of all

the monthly flight time limits. At the same time the lack of annual

flight time limits will provide flexibility and the opportunity for

increased productivity. In view of the fact that there is no scientific

data to suggest a discrete yearly limit and the fact that the

requirement for rest has been increased, the FAA believes the proposed

rule will provide the appropriate level of safety.

The FAA believes that there is no longer justification for the

different weekly, monthly, and annual flight time limitations for

different types of operations and that proposing a single limitation

standard provides adequate safeguard against the effects of cumulative

fatigue, eliminates rules that do not have an adequate scientific

rationale, and also simplifies the overall limitations. The FAA asks

for comments from the public about the maximum number of hours a flight

crewmember should be allowed to fly under this chapter. Further, the

FAA asks for comments regarding the impact of this rule on seasonal

flying.

Additional Rest Requirements

The proposed rule would continue some of the rest requirements

which are contained in the existing regulations. Proposed

Secs. 121.483(a) and 135.271(a) would state that no certificate holder

may assign any flight crewmember and no flight crewmember may accept

any duty period or flight time with the certificate holder unless the

flight crewmember has had at least the minimum rest period required.

Proposed Secs. 121.483(b) and 135.271(b) would state that no duty could

be assigned during any required rest period. This proposed requirement

would preclude any carrier from assigning any type of duty, including

nonflight assignments (such as training, assigned time, reserve time,

standby duty, or ground duties), to any flightcrew member during a

required rest period. These proposed requirements are the same as those

in current Sec. 121.471(c)(4) and (e) and Sec. 135.263(a) and (b).

Proposed Secs. 121.483(c) and 135.271(c) would be a new requirement

to clarify that rest periods required under the subpart can occur

concurrently with any other required rest period. For instance a

required 10-hour rest could occur concurrently with the 36-hour rest

required under proposed Secs. 121.483(e) and 135.271(e). Further, under

the proposal, if a flight crewmember is not serving in assigned time,

reserve time, standby duty or a duty period, that crewmember would be

in a rest period.

Proposed Secs. 121.483(d) and 135.271(d) would be a new requirement

stating that a rest period required in Secs. 121.473, 121.475, or

135.263 may be reduced only because of operational delays. The

reductions may not be scheduled in advance.

Current Secs. 121.471 and 135.265 require each domestic air carrier

operating under part 121 and each

[[Page 65963]]

certificate holder in scheduled operations under part 135 to relieve

each flight crewmember engaged in scheduled air transportation from all

further duty for at least 24 consecutive hours during any 7 consecutive

days. Proposed Secs. 121.483(e) and 135.271(e) would require that each

flight crewmember who is assigned to one or more duty periods, standby

duty, or reserve time shall be provided a rest period of at least 36

consecutive hours during any 7 consecutive calendar days. The proposed

36-hour rest could be taken during a layover. Thirty-six hours of rest

is the amount of time recommended by the NASA Scientific Working Group

(2.1.3); further the FAA believes that flight crewmembers should be

provided at least 36 consecutive hours rest during any 7 consecutive

calendar days any time they are assigned to reserve regardless of the

nature of the reserve. This allows flight crewmembers the time to plan

for and obtain a thorough rest so that they are not fatigued if they

receive a duty period assignment.

The Air Transport Association proposed, during the ARAC

discussions, that this provision be applied over a period of 168

consecutive hours rather than 7 consecutive calendar days. We believe

that it would be more difficult for crewmembers and carriers to

maintain records in this fashion. However, commenters are invited to

address this issue more fully in their comments. If adequate

justification is shown for using 168 hours rather than 7 calendar days,

the final rule may incorporate that proposal. Commenters should note

that any change in this provision would likely require corresponding

changes in the flight time limitations proposed in Secs. 121.481 and

135.269.

Proposed Secs. 121.483(f) and 135.271(f) would require certificate

holders to provide each flight crewmember assigned to assigned time, as

defined in proposed Secs. 121.471 and 135.261, a minimum rest period of

10 hours before the commencement of a subsequent duty period. This rest

period may occur concurrently with another required rest period. This

proposed rest requirement is needed to address situations in which a

flight crewmember is assigned to one of a group of activities that are

neither rest nor part of an assignment involving flight time, but which

could contribute to crewmember fatigue (e.g. training, deadhead

transportation, etc.). The intent of this proposed rule is for flight

crewmembers to have the opportunity to obtain sufficient rest in order

to be able to perform assigned flight duties, regardless of whether the

fatigue was caused by flight duties or by other activities for the

certificate holder. However, certificate holders have the option of

counting assigned time as part of a duty period and scheduling the

appropriate rest period for that duty period or of counting assigned

time exclusively as assigned time and ensuring that the flight

crewmember is given 10 hours of rest before commencing a duty period.

The 10 hours is consistent with the other required rest periods.

For example, a flight crewmember could be deadheaded to a new

location at the beginning of a duty period and then begin a schedule

flight assignment. In this case the deadhead transportation would be

counted as part of the duty period. Alternatively, after completing a

duty period, a flight crewmember could be deadheaded back to his or her

home base before beginning the required rest period. In this case the

deadhead transportation could be considered assigned time. Performing

assigned time after the completion of a duty period would be permitted

as long as the flight crewmember received the minimum rest required for

that duty period or 10 hours, whichever is greater, before the next

duty period.

Proposed Secs. 121.483(g) and 135.271(g) would establish a

requirement for a certificate holder to provide each flight crewmember

at least 48 consecutive hours of rest upon return to the flight

crewmember's home base after completion of one or more duty periods

that terminate in a time zone or zones that differs from the time zone

of the flight crewmember's home base by 6 or more hours and the flight

crewmember remains in that time zone or zones for at least 48

consecutive hours. The accumulation of the 48 hours may be in one or

more time zones but each of these time zones must be 6 or more hours

from the flight crewmember's home base. The flight crewmember must

receive this rest before beginning a subsequent duty period. The home

base is determined by the certificate holder and is where that

crewmember is based and receives schedules. The present rules make no

provisions for rest periods based on time zones. The NASA Scientific

Working Group data and subjective comments from crewmembers indicate

there is a need to recognize the additional fatigue effects of crossing

time zones (2.1.4). The literature indicates that some flight

crewmembers experience, at times, additional fatigue from crossing as

few as two time zones; while others do not report the same fatigue

until they have crossed many more time zones. The FAA recognizes the

complicated problem of addressing each individual flight crewmembers

circadian rhythm; nevertheless by establishing a minimum rest

requirement at the home base for flight crewmembers who cross 6 or more

time zones the FAA believes these flight crewmembers will be given an

opportunity to once again establish what is for that flight crewmember

the normal sleep awake cycle. The proposed rest requirement is a

minimum requirement and is provided to give the flight crewmember an

opportunity for rest. The flight crewmember should use this time to

obtain the needed rest so that he or she will be rested when called

upon for the next duty period. The FAA will issue advisory material

based on scientific studies to assist air carriers and flight

crewmembers in dealing with fatigue related issues.

Deadhead Transportation

Current Secs. 121.471(f) and 135.263(c) specify that time spent in

transportation, not local in character, that a certificate holder

requires of a flight crewmember and provides to transport the

crewmember to an airport to which he or she is to serve on a flight as

a crewmember, or from an airport at which the flight crewmember was

relieved from duty to return to his or her home base is not considered

part of a rest period. This type of transportation is commonly called

``deadhead'' transportation. Proposed Secs. 121.485 and 135.273 would

be the same as the current requirement except that in addition it would

specify that for duty period limitation purposes the certificate holder

and flight crewmember must consider deadhead time as assigned time or

as part of a duty period associated with flight.

Other Flying for a Certificate Holder

Proposed Secs. 121.487 and 135.275 establish duty period and flight

time limitations for other flying for a certificate holder, including

flying under part 91. Flight crewmembers and certificate holders must

ensure that any duty periods and flight assignments assigned by the

certificate holder are scheduled, assigned, and performed under the

applicable requirements of parts 121 and 135 (14 CFR 121.473, 121.477,

121.479,121.481, 121.483, and 14 CFR 135.263, 135.265, 135.267,

135.269, and 135.271) even if the flight is not conducted under part

121 or 135. In addition, any flight crewmember who is employed by two

or more air carriers or commercial operators must ensure that any duty

periods and flight assignments are scheduled, assigned and performed

under the applicable rules of parts 121 and 135. In other

[[Page 65964]]

words, when certificate holders assign flight crewmembers to conduct

ferry flights, or other flights under part 91, this flight assignment

is treated just as any other duty period involving flight.

This proposal is based on NTSB recommendation A-94-105, which was

issued as a result of the Guantanamo Bay accident, discussed above

under ``NTSB Recommendations'' and the FAA's belief that other flying

for a certificate holder such as training flights for a 121 or 135

certificate holder may cause both short term and cumulative fatigue

which may adversely effect that flight crewmember's flight duties

performed under parts 121 and/or 135. This would include flying for

more than one part 121 and/or 135 certificate holder.

Proposed Effective Date for Final Rule

The FAA is proposing an effective date of 60 days after these

proposals are published as a final rule. By that date all certificate

holders operating under part 121 or part 135 would have to begin

scheduling all flight time duty periods and rest periods in accordance

with the new requirements. However, as mentioned above under ``Commuter

Rulemaking,'' the FAA intends to coordinate the effective date of this

rulemaking with the compliance date of the commuter rulemaking, so that

certificate holders conducting commuter operations will have to change

their procedures for scheduling flight time, duty periods, and rest

periods only once.

The FAA requests comments on the length of time needed between the

issuance of the final rule and its effective date.

Regulatory Impact Analysis Summary

Proposed changes to Federal regulations must undergo several

economic analyses. First, Executive Order 12866 directs that each

Federal agency shall propose or adopt a regulation only upon a reasoned

interpretation that the benefits of the intended regulation justify its

costs. Second, the Regulatory Flexibility Act of 1980 requires agencies

to analyze the economic effect of regulatory changes on small entities.

Third, the Office of Management and Budget directs agencies to assess

the effect of regulatory changes on international trade. In conducting

these analyses, the FAA has determined that this Notice of Proposed

Rulemaking (NPRM) would probably generate benefits and cost savings

that are greater than its costs and is ``a significant regulatory

action'' as defined in the Executive Order. The FAA also estimates that

the NPRM would have a significant economic impact on a substantial

number of small entities. No part of the proposed rule is expected to

constitute a barrier to international trade. These analyses, available

in the docket, are summarized below.

This proposal would amend existing regulations to establish one set

of duty period limitations, flight time limitations, and rest

requirements for flight crewmembers engaged in air transportation.

Currently, these limitations and requirements differ across the various

sectors of the industry (e.g., part 121, part 135). In addition, the

FAA is required to consider alternatives to the proposed rule when the

following circumstances are met:

--The regulatory action is designated as a ``significant regulatory

action'' (as defined by Executive Order 12866), and

--The regulatory action is designated as having a significant impact on

a substantial number of small businesses, nonprofit groups, or airports

operated by small governmental jurisdictions.

The FAA has determined that the potential economic impacts of the

proposed rule are sufficiently large that both of these criteria are

satisfied. Accordingly, two alternatives will be discussed in the

section entitled ``Analysis of Alternatives'' below.

Cost-Benefit Analysis

Proposal

As mentioned above, the main thrust of the proposal is to amend

existing regulations to establish one set of duty period limitations,

flight time limitations, and rest requirements for flight crewmembers

engaged in air transportation. The proposal would establish a basic

scheduling limitation for 2 pilot crews of 14 hours of scheduled duty

and 10 hours of scheduled rest. The maximum length of duty periods

permitted would increase as the number of pilots increases. The

proposal would also revise limits on the amount of flight time which a

flight crewmember can accrue in a duty period, in any 7 consecutive

calendar days, and in a calendar month. The maximum duty period limits

would be decreased in most cases for part 121 and part 135 operators,

and the required length of rest periods would be increased. These

changes are expected to impose unquantifiable costs on unscheduled part

135 operators.

Although the maximum length of duty periods would generally

decrease under the proposal, the maximum allowable flight times for

pilots operating 2-pilot aircraft (no flight engineer) would increase

from 8 to 10 hours. This provision should create the potential for

substantial cost savings for both part 121 and 135 operators.

The FAA determined that 2 provisions of the proposed rule could

impose substantial quantifiable costs. Another provision could impose

substantial costs on the commuter operators, but could not be

quantified. The potential economic impacts on the air taxi operators of

these provisions could not be quantified at this time. The most costly

provision applies to the scheduling and duty assignments of reserve

pilots. A reserve pilot must be available to report upon notice for a

duty period with one hour or longer of notice. The proposal would

require that the maximum length of a duty period be reduced in those

cases when less than 10 hours of notice for a duty period assignment is

received. The proposal would also provide another option under which a

flight crewmember could be given a regularly scheduled minimum 6 hour

protected time within each 24 hours of reserve time.

The other provision which would impose substantial quantifiable

costs would require that ``ferry'' flight time used to reposition

aircraft be counted the same as time accrued in part 121/135 revenue

operations for the purpose of determining compliance with FAA

limitations on duty periods and flight time limitations. Another

provision that would increase the minimum required rest periods between

flight duty periods might impose substantial costs on the commuter

operators, but they cannot be quantified without additional data. The

provisions pertaining to reserve pilot scheduling might also impose

substantial costs on air taxi operators, but these costs could not be

quantified.

Cost Analysis

As described in more detail in the Regulatory Impact Analysis, the

FAA has relied heavily on surveys of a limited number of operators to

develop its analysis. The FAA is interested in comments on the

representativeness of the data used for extrapolation to the entire

affected population. Where commenters believe these survey data do not

reflect the circumstances/responses for operators generally, the FAA

welcomes any and all relevant data supporting such claims.

The FAA also seeks comments on its methodology, assumptions, and/or

data used to estimate the following:

(1) The efficiency gains from the increase in allowable flight time

from 8 to 10 hours.

[[Page 65965]]

(2) The likely operator response to the reserve pilot requirements

(i.e., the likelihood of operators choosing between canceling flights

and adding pilots),

(3) The cost to operators and passengers of flight cancellations

and of adding pilots, and

(4) The potential safety benefits from reduced fatigue.

Part 121 Air Carriers

The FAA estimated the economic impact of each provision of this

proposed rule. Some of the provisions by themselves were estimated to

entail substantial compliance costs, whereas others have the potential

for affording substantial cost savings to operators.

The proposed rule is estimated to impose discounted costs of

$842.03 million on part 121 operators over the next 15 years, but these

costs are expected to be offset by the cost savings. The total

potential discounted cost savings from increased productivity were

estimated at $1.72 billion over this period. The net discounted

compliance cost savings of the proposed rule would therefore amount to

$877.90 million over this period. The cost savings would result if

operators take advantage of opportunities afforded by the proposal to

more efficiently schedule their existing workforce, which could enable

them to reduce their plans for hiring new pilots by 3,348 pilots over

the next 15 years.

Costs

The FAA determined that the primary cost of implementing the

reserve pilot scheduling and duty time regulations would consist of the

cost of reassigning some scheduled airline pilots or hiring new pilots

to assure adequate coverage of flights that would otherwise have to be

canceled or delayed. Other provisions of the proposal, however, may

allow operators to use on-line pilots more intensively; therefore, the

need for additional reserve pilots is likely to be satisfied by

reassigning on-line pilots that would become available because of

enhanced productivity. In addition, a relatively small number of

flights might be canceled.

These cost estimates were based on the least cost combination of

reserve pilot scheduling options for each operator based on the nature

of its flight operations, such as the amount of advance notification

provided reserve pilots and duty period durations. The FAA estimates

that the part 121 scheduled operators would have to hire an additional

500 pilots, representing a 1% increase in their current pilot staffing

level, thereby increasing their recurring annual salary costs by $41.29

million. In addition, the FAA estimated that the flight cancellations

resulting from decreased flexibility in scheduling reserve pilots would

impose societal costs (the value of delayed passenger time) amounting

to $8.12 million per year. The total potential cost of the reserve

pilot regulation was therefore estimated at $49.40 million annually

after the first year the proposed rule were in effect for part 121

scheduled carriers. In the first year, this annual cost would be

increased by $9.26 million to $58.66 million to capture initial

training costs.

The FAA determined that the reserve pilot regulation would also

impose substantial costs on part 121 unscheduled or ``supplemental''

air carriers. The economic impact on these air carriers is expected to

be greater than for the scheduled part 121 carriers because of the less

predictable nature of their operations, which doesn't allow them to

give as much advance notification of flight assignments to their

reserve pilots. The FAA estimated that approximately 330 additional

pilots, representing about 4% of their present pilot staffing level,

would need to be hired by these air carriers at a recurring annual cost

of $24.02 million.

The FAA determined that the proposed restriction on ``ferry''

flights would have very little, if any, impact on scheduled part 121

operators. These proposed restrictions, however, could have a

substantial economic impact on part 121 unscheduled operators, which

are more likely than the scheduled operators to conduct these

operations because of the greater distance between crew bases and

destination points of their revenue flights. The FAA estimated that

these operators would have to hire an additional 235 pilots (3%

increase in current pilot staff) to avoid major disruptions in their

flight schedules, entailing recurring annual costs amounting to $17.04

million.

The total recurring annual potential compliance costs (reserve

pilot and ``ferry flight'' restrictions) for unscheduled or

supplemental operators were therefore estimated at $41.06 million. The

first year initial training costs for these unscheduled air carriers

were estimated to add $10.10 million to annual costs in the first year.

In summary, the total first year annual compliance costs for all

part 121 air carriers of the reserve pilot regulation and restriction

on ferry flights were estimated at $110.28 million. Societal costs

resulting from canceled flights were estimated to comprise $8.12

million of this total. These costs were estimated based on the time

that passengers on canceled flight would be delayed, which the analysis

assumes would be two hours. Total discounted costs were estimated at

$842.46 million over the period from 1996-2010.

Cost Savings

The FAA expects that these costs would be more than offset by cost

savings afforded the scheduled part 121 operators by the opportunity to

more effectively utilize their flight crewmembers. The potential cost

savings for the unscheduled part 121 air carriers, however, are not

expected to be of a sufficient magnitude to outweigh the proportionally

higher potential costs that were estimated for this sector of the

industry. Under the proposal, both scheduled and unscheduled air

carriers could increase the maximum permitted flight times within

individual duty periods from 8 to 10 hours for 2-pilot crews.

The potential productivity gains from this provision should enable

scheduled part 121 air carriers to maintain their current schedules

with fewer pilots and transfer some pilots from active or nonreserve to

reserve status. The decrease in the anticipated need for pilots among

the scheduled air carriers is expected to substantially outweigh any

potential increased need for pilots among the unscheduled air carriers.

In other words, the overall need for pilots in future years should

decrease because the positive economic effects resulting from increased

productivity are expected to outweigh the negative economic impacts of

the need for more reserve pilots.

Data collected by the FAA indicate that domestic air carriers do

not fly their crewmembers close to the maximum permitted current limit

of 100 hours per month. The average monthly flying time for the

scheduled air carriers is 60 hours. The part 121 unscheduled operators

tended to fly their crewmembers from 40-60 hours per month. In fact,

most unionized air carriers are prevented by labor contracts from

flying their crewmembers more than 75-80 hours per month.

If this proposed rule is adopted as an amendment, most air carriers

would likely attempt to take advantage of the opportunity to utilize

their crewmembers more effectively. The increase from 8 to 10 hours in

the maximum permitted flight hours 2-pilot crews could fly within

individual duty periods should provide an incentive for air carriers to

increase the daily flight hours and hence monthly flight hours of their

crews and decrease the amount of duty time which is not flight time.

The FAA determined that air carriers would

[[Page 65966]]

most likely be able to increase utilization of their pilots by 4% on

average (which would amount to an additional 2 flight hours per month

per pilot in most cases).

Air carriers would realize these productivity gains only to the

extent that their pilot salary costs would not increase. Such an

assumption appears warranted for the following reasons. The FAA

estimated that about 10% of the pilot salary cost of the major air

carriers is for nonproductive time (i.e., time within a duty period

that is not devoted to actually flying the airplane). Air carriers

frequently pay pilots for this nonproductive time at a reduced hourly

rate, as established by formulas in their contracts. The proposal would

allow them to significantly reduce this nonproductive time by

permitting an increase in maximum flight hours from 8 to 10 hours

within a shorter duty period.

Many unionized part 121 air carriers would probably have to

renegotiate their contracts in order to reduce the amount of

nonproductive time for which they are currently paying. Renegotiation

would not be required, however, in order to add about 2 hours on

average to monthly pilot flying hours because actual flying hours are

currently considerably lower than the maximum range of 75-80 hours

under most contracts. In addition, the nonunionized air carriers would

in theory have a greater potential for increasing flight hours flown by

their crewmembers because their maximum limits on flight hours tend to

be closer to the current regulatory maximums of 1,000 hours per year.

Under the proposal, the maximum monthly flight time of 100 hours per

month would effectively allow 1,200 hours of flight time per year,

thereby affording them the potential of a 20% increase in productivity

(nonunionized air carriers account for 16% of the operations flown by

all part 121 air carriers). This analysis, however, only assumes a 4%

increase in productivity.

The FAA estimated that a 4% overall productivity enhancement would

afford part 121 carriers overall total cost savings amounting to $3.07

billion (present value, $1.72 billion) over the next 15 years. These

estimates are based on an expected decrease of 3,348 new pilots hired

over this period and an average loaded salary of $82,572 for part 121

scheduled and $72,600 for part 121 supplemental. In addition, initial

training costs of $18,516 for part 121 scheduled pilot and $17,908 for

part 121 supplemental pilot were used in this analysis as in the cost

analysis.

This estimate should be regarded as an lower bound for potential

cost savings arising from the increase in pilot productivity.

Productivity cost savings above 4% are theoretically possible; however,

due to any salary increases that unions may negotiate, the air carriers

may not be able to achieve all of these savings. In any event, air

carriers would have a greater opportunity to limit pay for

nonproductive time under the proposal, as noted above, which currently

amounts to a significant part of their total salary costs. The FAA does

not have sufficient information to assess the interplay of these

factors in determining pilot salaries and requests comments from the

public on this issue.

Longer proposed flying hours would also allow air carriers to

reduce the number of 3-pilot crews in favor of 2-pilot crews. The FAA

estimates an additional savings of 200 pilots, with annual net cost

savings which could amount to $20.40 million in the first year and

$16.54 million in subsequent years. These potential cost savings were

estimated at $119.62 million (discounted) over a 15-year period.

Consequently, total cost savings of the proposed rule for part 121 air

carriers is expected to amount to $3.32 billion (present value, $1.87

billion) over the next 15 years.

Part 135 Scheduled Air Carriers

The proposed rule is estimated to impose discounted quantifiable

costs of $56.75 million on part 135 carriers over the next 15 years,

but these costs could be offset by cost savings. The total potential

cost savings of the proposed rule are expected to amount to $94.04

million over the next 15 years. The net cost savings, which would

result from an expected net reduction of 353 new pilots hired over the

next 15 years, could therefore amount to $50.68 million over this

period. This conclusion is contingent on the assumption that these

operators would be able to modify their flight schedules so as to avoid

expenses associated with longer minimum rest periods without

significantly affecting revenues.

Costs

The FAA estimated that the reserve pilot provisions of the proposal

would result in the hiring of 152 additional pilots in order to avoid

having to cancel flights because of inadequate reserve pilot resources.

The increased annual cost for the industry was estimated at $6.12

million. In addition, these operators are expected to incur incremental

initial training costs amounting to $1.06 million in the first year the

proposed rule is in effect, increasing annual compliance costs to $7.18

million in that year. These costs would amount to a discounted $56.75

million over a 15-year period.

Cost Savings

Part 135 scheduled airlines would reap potential cost savings

amounting to $145.04 million (present value, $84.76 million) over the

next 15 years. Although these operators currently tend to utilize their

pilots more intensively than the part 121 operators (i.e., 74-89

hours), they still utilize them well under the proposed regulatory

maximum of 100 hours a month. The potential for a 4% increase in

productivity would still remain. The fact that a considerably smaller

portion of the part 135 pilot workforce is unionized would remove that

possible constraint to increased productivity.

These potential cost savings are based on a projection that these

operators would need 353 fewer pilots at an average annual loaded

salary of $40,280 that was used in the analysis of costs. In addition,

initial training costs of $6,948 per pilot would be saved.

Benefits

The FAA has promulgated flight time limitation rules that contain

rest requirements for certain operations and weekly and monthly limits

on the number of hours of flight time in an effort to protect flight

crewmembers from work-related fatigue. The issue did not receive much

publicity until May 1994, when the NTSB cited pilot fatigue as a

probable cause in an accident when the captain lost control of a DC-8

freighter while approaching the U.S. Naval Station Airbase at

Guantanomo Bay, Cuba in August 18, 1993. Prior to that time, this

factor had never been cited by the NTSB as a probable cause in an

accident involving part 135 or 121 operations.

In its investigation, the NTSB noted that the flight crew had been

on duty about 18 hours and had flown about 9 hours at the time of the

accident. Under the proposed rule, this flight would have been illegal

because the maximum length of a duty period for a 3-person flight crew

on an airplane lacking appropriate sleeping quarters is 16 hours. In

addition, the company had intended to further extend this flight by

having the crew ferry the airplane back to Atlanta after the plane had

landed at Guantanamo Bay, which would have resulted in a total duty

time of 24 hours. The NTSB report specifically noted that the flight

crewmembers had experienced a disruption of circadian rhythms and sleep

loss, which resulted in fatigue that had adversely affected

[[Page 65967]]

performance during the critical landing phase.

The National Aeronautic and Space Administration (NASA) Ames

Research Center has been studying this issue since 1980 and has

published a number of studies on it. These studies have established a

relationship between long duty periods and fatigue and between fatigue

and a deterioration in performance.

It is very difficult to quantify the potential safety benefits of

this proposed rule because of the scarcity of accidents that have been

attributable to pilot fatigue. The NTSB has not focused on this issue

until quite recently in its accident investigations. The FAA believes

that the investigation of the effects of fatigue on pilot performance

should not be limited to a review of relevant accidents. A better

understanding of this issue can be gained from examining incident

reports submitted by pilots to the National Aeronautical and Space

Administration's Aviation Safety Reporting System (ASRS). Since January

1, 1986, ASRS has received 21 reports of unsafe incidents resulting

from fatigue by pilots engaged in part 121 operations and 200 reports

from pilots conducting part 135 operations. Although these incidents

did not actually result in accidents, they were of a sufficiently

serious nature that pilots filed a report with NASA with the hope of

gaining the attention of the regulatory authorities.

NASA has sponsored some research into the issue of the relationship

between fatigue and performance decrements based on information

contained in these incident reports. The researchers found that about

21% of the reports citing air transport flight crew errors were related

to the general issue of fatigue. The researchers selected a control or

comparison group of incident reports citing these problem areas but

where fatigue was not an apparent factor. Most of the incidents in both

data sets involved altitude or clearance operational deviations (e.g.,

taking off or landing without clearance). The deviations within the

fatigue set tended to occur more frequently during the more critical

descent, approach, and landing flight phases. This finding was expected

because fatigue is most likely to set in towards the end of a flight or

work day. Another key finding was that duty period length and workload

level were most frequently cited as being responsible for the fatigue.

The FAA has quantified the economic value of all major accidents

involving the part 121 air carriers and part 135 air carriers over the

1985-1994 period that were attributable to pilot error. For the part

121 analysis, the FAA examined the seating capacity, average passenger

load, and the average replacement cost of a representative sample of

both narrow body and wide body aircraft. The FAA examined the same

factors in estimating the cost of a part 135 accident.

For the part 121 analysis, the FAA assumes that an average airplane

costs $14.75 million in 1994 dollars and carries 107 people (101

passengers, 3 flight crewmembers, and 3 flight attendants). In order to

provide the public and government officials with a benchmark comparison

of the expected safety benefits of rulemaking actions over an extended

period of time with estimated costs in dollars, the FAA currently uses

a value of $2.7 million to statistically represent a human fatality

avoided. The values for serious and minor injuries are $518,000 and

$38,000, respectively. For the part 135 analysis, the FAA used the same

assumptions regarding the value of a human life and injuries. The

amount of airplane damage and severity of injuries was based on a

review of NTSB reports of all accidents involving 10-30 seat aircraft

over the period from 1985-1994.

Based on these assumptions, the FAA estimated that the economic

value of the 71 serious accidents involving pilot error used in part

121 scheduled operations that were involved in serious accidents over

the 1985-1994 period at $1.896 billion. Projecting this total from 1996

to 2010 yields a discounted $1.151 billion. The comparable total for

the 8 serious accidents involving pilot error used in part 121

supplemental operations that were involved in serious accidents over

this time period was $273.9 million. Projecting this total from 1996 to

2010 yields a discounted $166.3 million. The corresponding total for

the 71 aircraft involving pilot error used in part 135 operations with

10 to 30 seats that were involved in serious accidents over that period

was $602.32 million. Projecting this total from 1996 to 2010 yields a

discounted $365.73 million.

The NASA research study summarized above revealed that 21% of pilot

error incidents were related to fatigue. Applying this proportion to

the total discounted value of the pilot error accidents, using the

assumptions noted above, one could conclude that fatigue resulted in

accidents valued at $398.24 million (present value, $241.81 million)

for part 121 scheduled operations, $57.52 million (present value,

$34.92 million) for part 121 supplemental operations, and $126.49

million (present value, $76.80 million) for part 135 operations over a

15-year period. These estimates could be used to provide some idea of

the potential safety benefits of this proposed rule, assuming it is

100% effective in preventing these types of accidents.

Cost Savings and Benefits

Initial annual quantifiable compliance costs for part 121

scheduled, part 121 supplemental, and scheduled part 135 air carriers

were estimated at $58.66 million, $41.16 million and $7.18 million,

respectively. Subsequent annual quantifiable compliance costs were

estimated at $49.40 million, $41.06 million and $6.12 million,

respectively. Over the period from 1996 to 2010, costs would amount to

$750.33 million (present value, $458.63 million), $625.99 million

($383.40 million) and $92.89 million (present value, $56.75 million),

respectively.

For part 121 scheduled operators, these compliance costs should be

more than offset by cost savings that are projected to result from

productivity enhancements for the scheduled part 121 carriers. The same

conclusion may apply to the part 135 operators as well in view of the

potential magnitude of the unquantifiable costs. But cost savings

expected to accrue to the part 121 supplemental carriers are not

expected be sufficient to offset potential costs for this sector of the

industry.

The estimates for the scheduled part 135 air carriers do not

include the potential costs of the proposed general limitations on

flight duty and rest periods, which are expected to be fairly

significant, although not quantifiable at the present time. On the

other hand, these estimates do not take account of potential cost

savings as air carriers gain more experience in implementing the

various combinations of the available options, which should in theory

result in the selection of the most cost effective option. The extent

to which these potential impacts would offset each other cannot be

determined on the basis of the available data.

These estimates also do not include the potential costs of the

proposed rule for air taxi operators, which could not be quantified.

The FAA expects that the costs of the reserve pilot restrictions would

probably not be substantial for this sector of the industry because the

majority of the operators should be able to adopt the second reserve

pilot scheduling option without major operational disruptions. The FAA

does not have sufficient information to estimate the potential

compliance costs for this sector of the industry if the ``other

commercial flying'' restrictions in the proposal are adopted. The

potential for cost savings would appear

[[Page 65968]]

to be more limited for these operators because of the point-to-point

and geographically restricted nature of their operations, which would

tend to limit the length of flight assignments.

The FAA has quantified the economic value of all major accidents

involving the part 121 fleet and part 135 fleet over the 1985-1994

period that were attributable to pilot error. Based on this value and

the proportion of incidents with similar causal factors where pilots

were affected by fatigue, the FAA estimated that if proposed rule were

100% effective at eliminating fatigue as a factor in accidents, it

could prevent accidents involving part 121 scheduled operations valued

at $242 million and part 121 supplemental operations at $35 million

over a 15-year period. The same methodology yielded an estimate of $77

million for the potential effectiveness of the proposal in preventing

part 135 accidents. It is important to note that it is unlikely that

this proposal would be 100% effective, in part because it addresses

duty and rest times, but does not require pilots to rest. The FAA is

unable to develop an estimate of effectiveness of this proposal in

reducing fatigue-related incidents, but welcomes data and methodologies

that may assist such an effort.

The table below compares the costs, potential benefits, and cost

savings sections. The FAA therefore concludes that the proposed rule

would be cost beneficial for the part 121 scheduled operators, sector

of the air transportation industry, would probably be cost beneficial

for the entire part 121 sector of the air transportation industry, and

could be cost beneficial for the scheduled part 135 operators as well,

provided the unquantifiable compliance costs for the commuters do not

exceed about $127.5 million (discounted) over a 15-year period.

The FAA does not have sufficient information at this time to

evaluate the cost effectiveness of this proposal for air taxi

operators. A more definitive overall conclusion would not be

appropriate in view of the lack of data pertaining to how the affected

air carriers would modify their operations in order to comply with the

proposed rule and also to take advantage of the opportunities to

increase pilot productivity. The FAA has decided to issue this proposed

rule with the expectation that additional data that can clarify these

issues will be forthcoming.

Fifteen Year Discounted Costs/Cost Savings

--------------------------------------------------------------------------------------------------------------------------------------------------------

Part 121 Part 121 Part 135

scheduled supplemental Total part 121 scheduled Air taxi

--------------------------------------------------------------------------------------------------------------------------------------------------------

Compliance costs............................. $458,627,143 $383,403,020 $842,030,163 $56,750,685 Unknown.

Reserve requirements..................... 458,627,143 224,331,554 682,958,697 56,750,685 Unknown.

Other requirements....................... 0 159,071,466 159,071,466 0 Unknown.

Potential safety benefits.................... 241,806,628 34,922,912 276,729,539 76,802,495 Unknown.

Net costs of reserve and other requirements.. 216,820,515 348,480,108 565,300,623 (20,051,810) Unknown.

Cost savings................................. 1,658,078,896 215,723,343 1,873,802,239 107,431,330 Unknown.

Increased flight times....................... 1,504,206,226 215,723,343 1,719,929,569 107,431,330 Unknown.

Other cost savings........................... 153,872,670 0 153,872,670 0 Unknown.

Net combined cost savings of proposal........ 1,441,258,380 (132,756,765) 1,308,501,615 127,483,140 Unknown.

--------------------------------------------------------------------------------------------------------------------------------------------------------

This rulemaking should be considered complimentary to the Commuter

Rule and the Air Carrier Training Program final rule. One of the goals

of these three rulemaking actions is to prevent the 67 accidents that

represent the accident-rate gap between part 135 commuter operators and

part 121 operators. The FAA estimates that over the next 15 years,

closing this gap would prevent 67 accidents at a present value benefit

of $350 million.

In terms of the accident rate gap, the benefits of this NPRM are a

part of this total benefit. However, it is not possible to allocate

that benefit among the three rulemaking actions because it difficult to

determine which rulemaking action would prevent a given accident. For

example, individual accidents may be prevented by any one or a

combination of several factors such as:

Preventing the occurrence of a problem with an airplane in

the first place (Commuter rule);

Providing more or better crew training to properly respond

to the problem after it occurs (Air Carrier Training Program rule);

Providing a dispatcher to help identify a problem before

it becomes a potential accident (Commuter rule);

And ensuring pilots are not over-worked and tired (Pilot

Rest and Duty NPRM).

The Commuter Rule only addresses a portion of the necessary

requirements to close the accident-rate gap. If the $51 million present

value in net cost savings of this rule ($107 million in cost savings

minus $56 million in costs) is combined with the cost of the Commuter

Rule, $75 million, and the cost of Pilot Training, $34 million, the

total cost, $58 million (-$51+$75+$34), is still less than the

estimated $350 million benefit of eliminating the accident-rate gap.

These rules combined need only be 17 percent effective to be cost-

beneficial. The $77 million in potential safety benefits of this

proposed rule is a subset of the aforementioned $350 million.

Analysis of Alternatives

As explained above, the FAA is required to consider alternatives to

the proposed rule; the two alternatives will be discussed in this

section. As indicated earlier in this preamble, if this proposal on

reserve time assignments is not issued as a final rule, the FAA intends

to ensure that the current rule, as interpreted, is being correctly

implemented. The FAA has estimated that doing so could cost part 121

operators in excess of $2.5 billion and part 135 operators in excess of

$450 million discounted over the next 10 years. At the same time, the

resulting potential safety benefits would be no more than those

estimated for this proposal.

Alternative Number One

This alternative would be to maintain the status quo. This option

would not impose any costs on operators because it would not require

that they change their pilot scheduling practices. It could impose

costs on society, however, by increasing the risk of a preventable

fatigue-related accident. The accumulation of a substantial body of

scientific evidence documenting the harmful effects of fatigue on pilot

performance have increased the need to amend these rules. In addition,

given the scientific data available and the NTSB recommendations

resulting from an accident at Guantanamo Bay in August 1993, this

option is not feasible.

Alternative Number Two

This alternative was the original proposal considered by the FAA.

After surveying industry, the FAA determined

[[Page 65969]]

that such a proposal would impose substantial costs, and that these

costs would outweigh any potential benefits. Consequently, the current

proposal was established, which uses some of the elements of this

original proposal.

This alternative would afford operators three options for

scheduling their reserve pilots but does not address the fatigue

problem for pilots who are not on reserve status. The three options for

scheduling reserve pilots are as follows:

Option 1: The certificate holder provides a minimum of 10 hours

of advance notice of reporting time for flight duty.

Option 2: The certificate holder provides 8 hours of rest each

24 hour period of reserve duty. The 8 hours of rest must be assigned

prospectively and remain constant for the duration of the reserve

assignment.

Option 3: For each 24 hour period of reserve duty the flight

crewmember is limited to 18 hours of eligibility for flight duty,

with the remaining 6 hours being set aside for rest.

The potential annual compliance costs for the part 121 scheduled

carriers were estimated at $225 million on an annual basis based on the

assumption they would have to increase their pilot staffing by 4%. The

second most heavily affected sector of the industry was the air taxi

operators, who indicated they would have to increase their pilot

staffing by 74%, resulting in potential annual compliance costs of $175

million. The FAA estimated that commuter operators would increase their

pilot staffing by 5% in order to avoid disrupting their flight

schedules, resulting in potential annual compliance costs of $24

million. Finally, the annual compliance cost for the part 121

unscheduled operators was estimated at $11.5 million.

The total annual cost was estimated to be $436 million for the air

carrier industry. These costs would not be offset by any cost savings

because of the limited nature of this alternative (i.e., applies only

to reserve pilots). In addition, this alternative would have a

considerably lower potential for preventing accidents than the proposal

for the same reason. The FAA therefore concluded that this alternative

would not be cost beneficial.

Initial Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) requires Federal

agencies to review rules that may have ``a significant economic impact

on a substantial number of small entities.''

Under FAA Order 2100.14A, the criterion for a ``substantial

number'' is a number that is not less than 11 and that is more than one

third of the small entities subject to the rule. This rule would

primarily affect part 121 and 135 operators. For operators of aircraft

for hire, a small operator is one that owns, but not necessarily

operates, nine or fewer aircraft. The FAA's criteria for ``significant

impact'' are $4,600 or more per year for an unscheduled operator,

$119,900 or more per year for a scheduled operator whose airplane fleet

has over 60 seats, and $67,000 or more for other scheduled carriers.

A. Initial Regulatory Flexibility Determination

The present value cost savings of the proposed rule over the 10-

year study period would be $1.20 billion for the part 121 scheduled

carriers or $148.47 million annualized at 7%. Based on a total fleet of

3,429 airplanes for these air carriers, the projected annualized cost

savings of this rule would be $43,298 per airplane. Given the threshold

annualized cost of $119,900 for a small part 121 scheduled operator,

the FAA estimates that the proposed rule would have a significant

economic impact on any operator owning 3 or more aircraft but less than

10 aircraft. However, there are only 7 small operators in this

category. Since this is less than 11, a substantial number of these

entities would not be affected.

The present value of the net costs of the proposed rule over the

10-year study period would be $139.56 million for the part 121

unscheduled carriers or $19.82 million annualized at 7%. Based on a

total fleet of 557 airplanes for these operators, the projected annual

cost of this rule would be $42,747 per airplane. This exceeds the cost

threshold of $4,600 per unscheduled operator for all small operators in

this sector of the industry.

The present value of the cost savings of the proposed rule over the

study period has been estimated at $50.68 million for the part 135

scheduled carriers or $7.2 million annualized at 7%. Based on a total

fleet of 950 airplanes for these operators, the projected annual cost

of this rule would be $7,579 per airplane. Given the threshold

annualized cost of $67,000 for a small commuter operator, the FAA

estimates that an operator would need to own exactly 9 airplanes in

order to incur a significant economic impact. As there is only one part

135 scheduled carrier with 9 airplanes, the FAA concludes that a

substantial number of small entities in this sector of the industry

would not be significantly affected by the proposed rule.

The FAA requests comments from small air taxi operators regarding

the potential economic impacts of this proposed rule on their

operations. Would additional pilots be required to maintain the current

scope of their operations?

B. Initial Regulatory Flexibility Analysis

As the proposed rule would have a significant economic impact on a

substantial number of small part 121 unscheduled operators, an initial

regulatory flexibility analysis has been prepared. This analysis

assures that agencies have examined selected regulatory alternatives

that could minimize the economic burdens of the proposed rule on small

entities. As delineated in section 603(b) of the RFA, this initial

regulatory flexibility analysis is required to identify: (1) the

reasons why the agency is considering this action, (2) the objectives

and legal basis for the proposed rule, (3) the kind and number of small

entities to which the proposed rule would apply, (4) the projected

reporting, record keeping, and other compliance requirements of the

proposed rule, and (5) all Federal rules which may duplicate, overlap

or conflict with the proposed rule. This section of the RFA further

requires that each initial regulatory flexibility analysis contain a

description of any significant alternatives to the proposed rule which

accomplish the stated objectives of applicable statutes and which

minimize any significant economic impact of the proposed rule on small

entities.

1. Why the Agency Action is Taken

The main reason for the NPRM is that the FAA Administrator, when

prescribing safety regulations, is required by statute to consider

``the duty of an air carrier to provide service with the highest

possible safety in the public interest.'' The FAA has determined that

the most appropriate way to meet this statutory mandate is to ensure

that flight crewmembers are provided with the opportunity to obtain

sufficient rest to perform their routine and emergency safety duties.

The need for this rulemaking is supported by studies on pilot fatigue

conducted by NASA, anecdotal evidence of the problem contained in pilot

reports submitted to the Aviation Safety Reporting System, and the

complexity and age of the current flight duty and rest period

restrictions.

2. Objective of and Legal Basis for the Proposed Rule

The objective of the proposed rule is to increase safety in

passenger- and cargo-carrying operations, both scheduled and

unscheduled. The proposed rule would also clarify and

[[Page 65970]]

simplify existing regulations pertaining to duty period limitations,

flight time limitations, and rest requirements for crewmembers. This

objective is more thoroughly discussed in the preamble to the NPRM.

The legal basis for the proposed rule is 49 U.S.C. 106(g), 1153,

40101, 40102, etc.

3. Description of the Small Entities Affected by the Proposed Rule

The proposal would affect part 121 air carriers conducting both

scheduled and unscheduled operations. The FAA estimates that the

proposal would affect only one scheduled part 121 operator, which owns

9 aircraft. The remaining operators in this category each own 5 or

fewer aircraft, less than the number required for a substantial

economic impact potential. The FAA estimates that the proposal would

have a substantial economic impact on all 23 small part 121 unscheduled

operators, which operate a total of 99 aircraft.

4. Compliance Requirements of the Proposed Rule

The proposed duty period limitations, flight time limitations, and

rest requirements would apply to all crewmembers conducting part 121

domestic, flag, and supplemental operations, as well as those engaged

in commuter and on-demand operations. These limitations and

requirements would also apply to part 121 and 135 certificate holders

conducting part 91 operations. The preamble to the NPRM provides a more

thorough discussion of the compliance requirements of the proposed

rule.

5. Overlap of the Proposed Rule With Other Federal Regulations

No other Federal rules would duplicate, overlap, or conflict with

the proposed rule.

6. Alternatives to the Proposed Rule

Alternative Number One did not have any potential compliance costs.

Alternative Number Two would have been more costly and would have had a

significant impact on a substantial number of entities for the three

industry areas where costs could be estimated. Alternative Number Two

would have projected annual costs of $65,325 per aircraft for part 121

scheduled operators. Therefore, any operator with 2 or more aircraft

would be significantly affected by this alternative rule. Since these

operators would comprise more than one-third of the total number of

small operators in this category, the FAA concludes that a substantial

number of small entities would be affected. In addition, Alternative

Number Two was substantially more costly for part 121 unscheduled

operators than the proposed rule, which would have affected all

operators in this sector of the industry. The impacts of this

Alternative on these operators would be considerably greater than the

proposed rule.

Alternative Number Two would have projected annual costs of $20,443

per aircraft for part 135 scheduled operators.

Therefore, any operator with 4 or more aircraft would be

significantly affected by this alternative rule. Since these operators

comprise at least one-third of the total number of small entities in

this sector of the industry, the FAA concludes that a substantial

number of small operators would be affected. This Alternative, which

would be considerably more costly for on-demand air taxis than

scheduled part 135 operators, would have a significant economic impact

on a substantial number of small operators in this sector of the

industry as well.

In addition, the FAA considered an alternative proposal for part

121 supplemental carriers that was proposed at an ARAC (Aviation

Regulatory Advisory Committee) meeting. Under this proposal, part 121

supplementals could develop alternative policies and procedures or

flight schedules that allow a flight crewmember to anticipate when a

flight time assignment might occur or that otherwise ensures a flight

crewmember will not be assigned to a flight unless that flight

crewmember is adequately rested for that flight assignment. However,

the FAA rejected this option because it does not provide one level of

safety for the industry. These different policies or procedures would

be ripe for abuse by both certificate holders and pilots and they would

be very difficult for the FAA to enforce. In short the FAA believes

this alternative would not provide the same level of safety as the

proposal. The FAA does, however request comments on other possible

alternatives.

Initial Trade Impact Analysis

The FAA believes that in specific foreign countries, including

Great Britain, Germany, and some other European countries, pilot,

flight, and duty regulations are more restrictive because they make use

of more variables as constraints than in the United States. These

variables include 1) take-offs and landings, 2) day or night flights,

3) cumulative duty hours per week and month, 4) the number of flights

in a duty period, 5) whether the flight crew is ``acclimated'' to the

local time. The net impact of the proposal on the U.S. firms' operating

costs is likely to be considerably less than the compliance costs with

current rules because of the projected gains in productivity. Foreign

air carriers may already be burdened with similar or higher costs to

the extent the applicable regulations are as strict or more strict than

the proposal. The FAA solicits information from commenters regarding

these policies.

Any impacts should be limited to the part 121 air carriers. Most of

the nation's 65 commuter airlines operate almost exclusively on

domestic routes, with only limited international operations and no

transoceanic routes. Similarly, air taxi operators seldom fly outside

of domestic airspace.

Federalism Implications

The proposed regulations do not have substantial direct effects on

the states, on the relationship between national government and the

states, or on the distribution of power and responsibilities among

various levels of government. Thus, in accordance with Executive Order

12612, it is determined that such a regulation does not have federalism

implications warranting the preparation of a Federalism Assessment.

Paperwork Reduction Act

The reporting and recordkeeping requirements associated with this

proposed rule remain the same as under the current rules and have

previously been approved by the Office of Management and Budget under

the provisions of the Paperwork Reduction Act of 1980 (Public Law 96-

511) and have been assigned OMB Control Numbers 2120-0585. The FAA

believes that this proposed rule would not impose any additional

recordkeeping or reporting requirements. If, however, a commenter finds

that this notice would require additional recordkeeping or reporting,

the FAA solicits specific information on the volume, type, and costs of

the additional records or reports.

Conclusion

For the reasons set forth under the heading ``Regulatory

Analysis,'' the FAA has determined that this proposed regulation is a

significant rule under Executive Order 12866, and is a significant rule

under Department of Transportation Regulatory Policies and Procedures

(44 FR 11034, February 26, 1979). Also, for the reasons stated under

the headings ``Trade Impact Statement'' and ``Regulatory Flexibility

Determination,'' the FAA certifies that the proposed rule would have a

significant economic impact on a

[[Page 65971]]

substantial number of small entities. A copy of the full regulatory

evaluation is filed in the docket and may also be obtained by

contacting the person listed FOR FURTHER INFORMATION CONTACT.

List of Subjects

14 CFR Part 121

Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes,

Aviation Safety, Safety.

14 CFR Part 135

Air carriers, Aircraft, Airmen, Aviation Safety, Pilots, Safety.

The Proposed Amendment

In consideration of the foregoing, the Federal Aviation

Administration proposes to amend the Federal Aviation Regulations (14

CFR parts 121 and 135) as follows:

PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND

SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE

AIRCRAFT

1. The authority citation for part 121 continues to read as

follows:

Authority: 49 U.S.C. 106(g), 40113, 44119, 44101, 44701-44702,

44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,

44912, 46105. 46103, 46105.

2. Section 121.1 is amended by adding a new paragraph (g) to read

as follows

Sec. 121.1 Applicability.

* * * * *

(g) As specified in Sec. 121.487, the duty period limitations,

flight time limitations and rest requirements of this part are also

applicable to duty periods and flight time performed for a certificate

holder conducting operations under part 91 or part 135 of this chapter.

Subpart R--[Removed and reserved]

3. Subpart R (Secs. 121.480 through 121.493) is removed, and the

subpart heading is reserved.

4. Subpart Q is revised to read as follows:

Subpart Q--Flight Crewmember Duty Period Limitations, Flight Time

Limitations and Rest Requirements

Sec.

121.471 Applicability and terms.

121.473 Pilot duty period limitations, flight time limitations, and

rest requirements.

121.475 Flight engineer duty period limitations, flight time

limitations, and rest requirements.

121.477 Reserve and standby assignments.

121.479 Additional flight crewmember duty period and flight time

scheduling limitations.

121.481 Weekly and monthly flight crewmember flight time

limitations.

121.483 Additional flight crewmember rest requirements.

121.485 Deadhead transportation.

121.487 Duty period and flight time limitations: Other flying for a

certificate holder.

Subpart Q--Flight Crewmember Duty Period Limitations, Flight Time

Limitations and Rest Requirements

Sec. 121.471 Applicability and terms.

(a) This subpart prescribes duty period limitations, flight time

limitations and rest requirements for flight crewmembers in domestic,

flag, and supplemental operations.

(b) For the purpose of this subpart the following terms and

definitions apply:

(1) Approved sleeping quarters means an area designated for the

purpose of flight crewmembers obtaining sleep as approved by the

Administrator.

(2) Assigned time means a period of time when the flight crewmember

is assigned by the certificate holder to activities other than flight

duties or reserve time. Assigned time may include activities such as

deadhead transportation, training, loading baggage, taking tickets,

administrative tasks, or any other assignments at the direction of the

certificate holder. Assigned time may be considered part of a duty

period or not part of a duty period, at the discretion of the

certificate holder.

(3) Calendar day means a period of elapsed time, using Coordinated

Universal Time or local time, that begins at midnight and ends 24 hours

later at the next midnight.

(4) Duty period means a period of elapsed time between reporting

for an assignment involving flight time and release from that

assignment by the certificate holder. The time is calculated using

either Coordinated Universal Time or the local time of the flight

crewmember's home base, to reflect the total elapsed time.

(5) Operational delays means delays due to operational conditions

and requirements that are beyond the control of the certificate holder

such as adverse weather, aircraft equipment malfunctions, and air

traffic control. It does not include late arriving passengers, late

food service, late fuel trucks, delays in handling baggage, freight or

mail, or similar events.

(6) Protected time means a period of time during which a

certificate holder may not contact the flight crewmember and the

crewmember has no responsibility for work. Protected time occurs only

during a reserve assignment pursuant to Sec. 121.477(b)(2).

(7) Reserve time means a period of time when a flight crewmember

must be available to report upon notice for duty involving flight time

and the certificate holder allows the flight crewmember at least 1 hour

to report. Reserve time is not considered part of a rest period and is

not considered part of a duty period involving flight time. Reserve

time ends when the flight crewmember reports for a duty period, when

the flight crewmember is notified of a future flight assignment and

released from all further responsibilities until report time for that

assignment, or when the flight crewmember has been relieved for a rest

period. Reserve time does not include activities defined as ``assigned

time.''

(8) Rest period means a period of time free of all restraint or

duty for a certificate holder and free of all responsibility for work

or duty should the occasion arise. A flight crewmember is not ``free of

all restraint'' or ``free of all responsibility'' if that person must,

among other things, accept phone calls, carry a beeper, or contact the

air carrier. If a flight crewmember is not serving in assigned time,

reserve time, standby duty or a duty period, that crewmember would be

in a rest period.

(9) Standby duty means any period of time when a flight crewmember

is required to report for a flight assignment in less than 1 hour from

the time of notification. It also includes time when a flight

crewmember is required to report to and remain at a specific facility

(e.g. airport, crew lounge) designated by a certificate holder. Standby

duty is considered part of a duty period. Standby duty commences when

the flight crewmember is placed on standby duty. Standby duty ends when

the flight crewmember is relieved from duty associated with an actual

flight or is otherwise relieved from duty.

Sec. 121.473 Pilot duty period limitations, flight time limitations,

and rest requirements.

(a) A certificate holder may assign a scheduled duty period or

reserve assignment to a pilot and a pilot may accept that assignment

only when the applicable duty period limitations, flight time

limitations, and rest requirements of this section are met.

(b) Except as required in paragraphs (c), (d), and (e) of this

section, no certificate holder may assign a flight crew consisting of

two pilots, and no pilot may accept, a scheduled duty period of more

than 14 hours. The duty period may not include more than 10 scheduled

hours of flight time. Each pilot must be scheduled for a subsequent

rest period of at least 10 consecutive hours. This rest period

[[Page 65972]]

must occur between the completion of the scheduled duty period and the

commencement of the next duty period.

(1) Due to operational delays, the rest period required under this

paragraph (b) may be reduced to no fewer than 9 consecutive hours if

the pilot has not actually exceeded the maximum 14-hour duty period and

if the pilot's next rest period is at least 11 hours. This subsequent

rest period must be scheduled to begin no later than 24 hours after the

beginning of the reduced rest period and must occur between the

completion of the scheduled duty period and the commencement of the

next duty period.

(2) The duty period required under this paragraph (b) may be

extended to 16 hours when the extension is due to operational delays.

In this case the 10 hour rest period may not be reduced.

(c) A certificate holder may assign a flight crew consisting of 3

pilots, and a pilot may accept, a scheduled duty period of up to 16

hours. The duty period may not include more than 12 scheduled hours of

flight time. Each pilot must be scheduled for a subsequent rest period

of at least 14 consecutive hours. This rest period must occur between

the completion of the scheduled duty period and the commencement of the

next duty period.

(1) Due to operational delays, the rest period required under this

paragraph (c) may be reduced to no fewer than 12 consecutive hours if

the pilot has not actually exceeded the maximum 16-hour duty period and

if the pilot's next rest period is at least 16 hours. This subsequent

rest period must be scheduled to begin no later than 24 hours after the

beginning of the reduced rest period and must occur between the

completion of the scheduled duty period and the commencement of the

next duty period.

(2) The duty period required under this paragraph (c) may be

extended to 18 hours when the extension is due to operational delays.

In this case the 14 hour rest period may not be reduced.

(d) A certificate holder may assign a flight crew consisting of 3

pilots, and a pilot may accept, a scheduled duty period of more than 16

hours, but no more than 18 hours. The duty period may not include more

than 16 scheduled hours of flight time. Each pilot must be given an

opportunity to rest in-flight in approved sleeping quarters. Each pilot

must be scheduled for a subsequent rest period of at least 18

consecutive hours. This rest period must occur between the completion

of the scheduled duty period and the commencement of the next

subsequent duty period.

(1) Due to operational delays, the rest period required under this

paragraph (d) may be reduced to no fewer than 16 consecutive hours if

the pilot has not actually exceeded the maximum 18-hour duty period and

if the pilot's next rest period is at least 20 hours. This subsequent

rest period must be scheduled to begin no later than 24 hours after the

beginning of the reduced rest period and must occur between the

completion of the scheduled duty period and the commencement of the

next subsequent duty period.

(2) The duty period required under this paragraph (d) may be

extended to 20 hours when the extension is due to operational delays.

In this case the 18 hour rest period may not be reduced.

(e) If the scheduled duty period includes one or more flights that

land or take off outside the 48 contiguous states and the District of

Columbia, a certificate holder may assign a flight crew consisting of 4

pilots, and a pilot may accept, a scheduled duty period of more than 18

hours but not more than 24 hours. The duty period may not include more

than 18 scheduled hours of flight time. Each pilot must be given an

opportunity to rest in-flight in approved sleeping quarters. Each pilot

must be scheduled for a subsequent rest period of at least 22

consecutive hours. This rest period must occur between the completion

of the scheduled duty period and the commencement of the next

subsequent duty period.

(1) Due to operational delays, the rest period required under this

paragraph (e) may be reduced to no fewer than

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