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Safety Recommendation Details

Safety Recommendation A-10-016
Details
Synopsis: On February 12, 2009, about 2217 eastern standard time,1 a Colgan Air, Inc., Bombardier DHC-8-400 (Q400),2 N200WQ, operating as Continental Connection flight 3407, was on an instrument approach to Buffalo-Niagara International Airport, Buffalo, New York, when it crashed into a residence in Clarence Center, New York, about 5 nautical miles northeast of the airport. The 2 pilots, 2 flight attendants, and 45 passengers aboard the airplane were killed, one person on the ground was killed, and the airplane was destroyed by impact forces and a postcrash fire. The flight, which originated from Liberty International Airport (EWR), Newark, New Jersey, was operating under the provisions of 14 Code of Federal Regulations (CFR) Part 121. Night visual meteorological conditions prevailed at the time of the accident.
Recommendation: TO THE FEDERAL AVIATION ADMINISTRATION: Require all 14 Code of Federal Regulations Part 121, 135, and 91K operators to address fatigue risks associated with commuting, including identifying pilots who commute, establishing policy and guidance to mitigate fatigue risks for commuting pilots, using scheduling practices to minimize opportunities for fatigue in commuting pilots, and developing or identifying rest facilities for commuting pilots.
Original recommendation transmittal letter: PDF
Overall Status: Closed - Unacceptable Action
Mode: Aviation
Location: Clarence Center, NY, United States
Is Reiterated: No
Is Hazmat: No
Is NPRM: No
Accident #: DCA09MA027
Accident Reports: Loss of Control on Approach, Colgan Air, Inc., Operating as Continental Connection Flight 3407, Bombardier DHC 8 400, N200WQ
Report #: AAR-10-01
Accident Date: 2/12/2009
Issue Date: 2/23/2010
Date Closed: 12/27/2013
Addressee(s) and Addressee Status: FAA (Closed - Unacceptable Action)
Keyword(s): Fatigue,

Safety Recommendation History
From: NTSB
To: FAA
Date: 12/27/2013
Response: We issued this recommendation as a result of our conclusion in the Colgan-Continental Connnnection fligh 3407 accident investigation that operators have a responsibility to identify risks associated with commuting, to implement strategies to mitigate these risks, and to ensure that their commuting pilots are fit for duty. In our comments about the notice of proposed rulemaking (NPRM) for what became the final rule issued on January 4, 2012, we agreed with the FAA that responsible commuting is a fitness-for-duty issue and that education and training for pilots could help in that regard; however, we believed then—and continue to believe—that airlines have an equal responsibility in mitigating potential fatigue related to pilot commuting. We also stated that the NPRM’s treatment of commuting-related fatigue risks would not fully meet the intent of Safety Recommendation A-10-16 because this recommendation addresses not only pilot responsibility but also operator responsibility. The FAA now requires all airlines to develop and use a fatigue risk management plan (FRMP) to manage and mitigate the potential effects of crewmember fatigue. We reviewed Information for Operators (InFO) bulletin 10017, “Fatigue Risk Management Plans (FRMP) for Part 121 Air Carriers,” which provides guidance for the development of a required FRMP. We also reviewed InFO 10017SUP, a supplement that provides a checklist for use in the development of an FRMP. Both the InFO and the supplement require that the FRMP include an educational/training component on the fatigue risks posed by commuting, but neither contains a requirement for an airline to monitor, or implement measures to limit, the fatigue consequences of commuting. The final rule retained the requirements proposed in the NPRM for Section 117.5, “Fitness for Duty.” In its letter, the FAA stated that, although neither the final rule nor the FRMP requirement specifically mentions commuting, both address fatigue, regardless of its cause. We do not agree with the FAA that these actions represent an acceptable alternate response to this recommendation. Because the FAA plans no further action to address Safety Recommendation A-10-16, it is classified CLOSED—UNACCEPTABLE ACTION.

From: FAA
To: NTSB
Date: 9/6/2013
Response: -From Michael P. Huerta, Administrator: General Comment. In recommendations A-95-15, A-08-19 and -20, and A-10-16, part 135 operators were included in the 1995 Notice of Proposed Rulemaking (NPRM), Flightcrew Member Duty Period Limitations, Flight Time Limitations and Rest Requirements. This NPRM was withdrawn because of the many significant issues raised during the comment period. On January 4, 2012, the FAA issued The Flightcrew Member Duty and Rest Requirements Final Rule. The rule amends the FAA's existing flight, duty, and rest regulations applicable to certificate holders and their flightcrew members operating under part 121 domestic, flag, and supplemental rules. While the preamble to the 2012 final rule mentions that part 135 operators should anticipate a rule similar to the rule tor part 121 operators, the FAA has no immediate plans to initiate this rulemaking. The FAA has addressed the general issue of fatigue and part 135 operators in letters of interpretation. One example is the September 27, 2010, letter to Mr. Tom Rogers (enclosed), from the Assistant Chief Counsel for Regulations. In this letter the FAA stated that, per § 91.13(a), "[n]o person may operate an aircraft in a careless or reckless manner, so as to endanger the life or property of another. Both the flightcrew member and certificate holder would be in a violation of the regulations if a crewmember flies when his lack of rest would endanger others." The regulatory provisions of§ 91.13(a) apply to part 135 operations. The FAA finds that the existing letter of interpretation provides clear guidance for part 13 5 operators. In 2003, when the final rules goveming the operation of fractional aircraft ownership programs (part 91 subpart K) were drafted, the FAA considered the existing issues and research surrounding flight, duty, and rest time requirements. Additionally, comments were solicited from on-demand charter operators, fractional ownership program managers, aircraft manufacturers, corporate flight departments, traditional aircraft management companies, aircraft financing and insurance companies, as well as industry trade associations. These comments were received and incorporated into the final rules for part 91 subpart K. With the rule, the FAA established a regulatory safety standard within part 91 subpart K to meet a high level of safety. Section 91.1 057(h) states that "a flightcrew member may decline a flight assignment if, in the flightcrew member's determination, to do so would not be consistent with the standard of safe operation required under this subpart, this part, and applicable provisions of this title." Additionally, program managers and their flightcrew members are subject to the regulatory provisions of§ 91.13(a). Both the program manager and flightcrew member would violate regulations if it is determined that a crewmember operated an aircraft when the crewmembers' lack of rest endangered others. Individual program managers are responsible for developing policies that allow flightcrew members to decline assignments or remove themselves from duty if they were impaired by a lack of sleep and include the administrative implications of fatigue calls. FAA principal operations inspectors work closely with program managers to ensure program operating manuals support regulatory compliance. The FAA exercises oversight responsibility to ensure fractional ownership programs comply with the regulations and maintain a high level of safety. The FAA finds that § 91.13( a) and 91.105 7 provide sufficient regulatory structure to meet the intent of recommendations A-95-125, A-08-19 and -20, and A-10-16, without requiring additional rulemaking for 91 subpart K operators. -From Michael P. Huerta, Administrator: To address fatigue risks associated with commuting, the National Research Council (NRC) was tasked to conduct a study on the effects of commuting on pilot fatigue. On July 6, 2011 , the NRC completed its report, The Effects of Commuting on Pilot fatigue. The authors of the report independently determined that it is premature to initiate rulemaking related to commuting. The Flightcrew Member Duty and Rest Requirements Final Rule,§ 117.5, Fitness for duty, clearly states that flightcrew members may not accept flight assignments if they are fatigued, nor may the certificate holder allow a flightcrew member to continue a flight duty period if they have reported themselves as fatigued. This section prohibits a fatigued flightcrew member from flying regardless of the cause of the fatigue. In response to the Airline and FAA Extension Act of20 10, Public Law 111-216, the FAA developed and issued statutory guidance for a FRMP. The FRMP is a plan developed and implemented by the air carrier to manage and mitigate the potential effects of fatigue in the air carrier's day-to-day operations such as scheduling, fatigue reporting policies, and education. As part of their FRMP, part 121 air carriers are statutorily-required to annually provide, fatigue-related education and training to increase awareness of: • fatigue; • the effects of fatigue on pilots; and • fatigue countermeasures. The 2012 final rule adopts the same standard of training as required by the statute. In addition, the rule adopts a mandatory update of the carriers' education and training program every 2 years, as part of the update to their FRMP. While the final rule and FRMP do not specifically call out commuting, it does address fatigue regardless of the cause and the FAA finds that the alternate actions taken, in reference to part 121 operators are responsive to the Board's recommendation. I believe the FAA has effectively addressed Safety Recommendations A-95-125, A-08-19 and -20, and A-10-16, and consider our actions complete.

From: NTSB
To: FAA
Date: 1/25/2011
Response: On September 14, 2010, the FAA issued a notice of proposed rulemaking (NPRM) titled "14 CFR Parts 117 and 121: Flightcrew Member Duty and Rest Requirements," which addresses this recommendation regarding Part 121 operations. The NPRM treats commuting as a fitness-for-duty issue, and associated guidance material referenced in the document discusses the need for pilots to practice responsible commuting. On November 15, 2010, the NTSB submitted comments on the NPRM to the docket. In our comments, we agreed with the FAA that responsible commuting is a fitness-for-duty issue and that education and training for pilots can help in that regard; however, we believe that airlines have an equal responsibility in mitigating potential fatigue related to pilot commuting. If implemented as written, the NPRM's treatment of commuting-related fatigue risks would not fully meet the intent of Safety Recommendation A-10-16 because this recommendation addresses not only pilot responsibility but also operator responsibility, listing specific actions for operators to take that can help mitigate commuting pilot fatigue. Our comments on the NPRM acknowledged the difficulty in identifying a regulatory solution for commuting hazards at the individual level, and we pointed out that, without imposing undue regulatory burden, the recommended steps could be taken at the company level consistent with the level of company action called for in other areas of the NPRM. Accordingly, the NTSB encourages the FAA to ensure that the final rule's treatment of commuting incorporates company-level responsibilities, including the identification of pilots with challenging commutes and provision of mitigating measures. Pending the FAA's adoption of a final rule based on the NPRM-to include revisions concerning commuting pilots discussed in the NTSB's November 15,2010, letter-and issuance of a similar final rule addressing Part 135 and Part 91, Subpart K, operations, Safety Recommendation A-10-16 is classified OPEN – ACCEPTABLE RESPONSE.

From: NTSB
To: FAA
Date: 11/15/2010
Response: Notation 8257: The National Transportation Safety Board (NTSB) has reviewed the Federal Aviation Administration's (FAA) Notice of Proposed Rulemaking (NPRM) titled "14 CFR Parts 117 and 121: Flightcrew Member Duty and Rest Requirements," which was published at 75 Federal Register 55852 on September 14, 2010. The notice proposes to amend 14 Code of Federal Regulations (CFR) Part 121 and establish 14 CFR Part 117 to create a single set of flight time limitations, duty period limits, and rest requirements for pilots in Part 121 operations. According to the NPRM, the rulemaking recognizes the similarities between the types of operations conducted under Part 121 and the universality of factors that lead to human fatigue. In addition, the rulemaking acknowledges the need to consider fatigue-inducing factors such as time of day, length of duty day, workload, whether an individual is acclimated to a new time zone, and the likelihood of being able to sleep under different circumstances. The rulemaking aims to ensure that pilots have an opportunity to obtain sufficient rest to perform their duties, with an objective of improving aviation safety. The NPRM acknowledges that the FAA is proposing to limit this rulemaking to Part 121 certificate holders and flight crew members who work for them and address fatigue on an incremental basis. Further, the NPRM explicitly identifies two specific NTSB recommendations regarding pilot fatigue in its background statement, Safety Recommendations A-06-10 and A-95-113. The NTSB strongly supports most aspects of the proposed rule while also acknowledging a variety of important issues that remain to be addressed. Since 1990, the safety issue of reducing accidents caused by human fatigue has been on the NTSB's Most Wanted List of Transportation Safety Improvements. Over the last 20 years, the NTSB has investigated many air carrier accidents involving fatigued flight crews, including the American International Airways flight 808 accident in Guantanamo Bay, Cuba; the American Airlines flight 1420 accident in Little Rock, Arkansas; the Corporate Airlines flight 5966 accident in Kirksville, Missouri; and, most recently, the Colgan Air flight 3407 accident in Buffalo, New York. NTSB recommendations issued over the same period of time in an effort to counteract the threat of human fatigue to passenger and crew safety promote, among other measures, scientifically based hours of service, eliminating tail-end Part 91 (for example, training or ferry) flights, developing guidance on fatigue risk management systems (FRMS), and addressing the challenges of obtaining adequate rest when associated with pilot commuting. Joint Responsibility for Fatigue Mitigation and Fatigue Education The NPRM states clearly that effective fatigue mitigation in aviation requires individual responsibility at the pilot level and corporate responsibility at the air carrier level. The NTSB agrees and, based on findings from accident investigations and the reality of the aviation system, recognizes that effective actions and coordination among pilots, airlines, and regulators must occur to effectively address fatigue issues. Furthermore, the NPRM would enable a flight crewmember to self-report as too fatigued to continue working an assigned flight duty period and prohibit the certificate holder from allowing the flight crewmember to continue. The NTSB supports this element of the proposed rule, which, if adopted, would likely satisfy the intent of Safety Recommendations A-08-19 and A-08-20 for Part 121 operations. The NPRM addresses commuting as a fitness for duty issue, and the associated guidance material contains information about responsible commuting. Although the NTSB agrees in part with this perspective and believes that education and training can help, it also is steadfast in its belief that the concept of joint responsibility applies equally to commuting. If implemented, the NPRM's treatment of commuting-related fatigue risks would not meet the intent of Safety Recommendation A-10-16, because this recommendation advocates going beyond guidance to helping an individual commuting pilot obtain adequate rest; Safety Recommendation A-10-16 also addresses the need for operators to identify pilots who commute, use scheduling practices to minimize fatigue in commuting pilots, and develop or identify rest facilities for commuting pilots. While the NTSB acknowledges the difficulty in identifying a regulatory solution for commuting hazards at the individual level, steps can be taken at the company level without undue regulatory burden and that would be consistent with the level of company action called for in other areas of the NPRM. The NTSB strongly encourages the FAA to ensure that the final rule's treatment of commuting incorporates company level responsibilities reflected in Safety Recommendation A-10-16, including the identification of pilots with challenging commutes and provision of mitigating measures. The NPRM also proposes requiring a fatigue education and training program for all flight crewmembers, employees involved in the operational control and scheduling of flight crewmembers, and personnel having management oversight of these areas. The NTSB strongly supports this concept and believes it to be consistent with earlier NTSB recommendations advocating the need for fatigue education among flight crewmembers.9 In addition, this concept is among the foundational elements of an effective FRMS. The NTSB notes that the required course content addresses a broad range of fatigue causation factors, countermeasures, and mitigation strategies and is encouraged that the draft AC on fatigue training supporting this NPRM contains a discussion about medically based sleep disorders, such as obstructive sleep apnea, that can affect a crewmember's ability to receive adequate sleep. However, the NPRM does not sufficiently address identifying and treating medically based sleep disorders such as obstructive sleep apnea, and the NTSB encourages the FAA to consider Safety Recommendations A-09-61 through -63 in the guidance associated with this NPRM. Additionally, the NTSB believes that training conducted under this proposed rule should also consider personal strategies that have been scientifically demonstrated to be effective for maintaining alertness and performance on the flight deck (for example, strategic napping) and that the draft AC supporting this training should also be modified to address specific methods that crews can use to maintain alertness on the flight deck.

From: FAA
To: NTSB
Date: 6/22/2010
Response: MC# 2100243 - From J. Randolph Babbitt, Administrator: Flight crewmember fatigue and fatigue management is a high priority issue for the FAA. Crewmembers have the professional responsibility to report fit for duty, including being properly rested and not affected by any medical condition that would make the person unable to operate the aircraft in a safe manner. Air carriers have the professional responsibility to manage identified risks, including those associated with fatigue. The FAA is currently engaged in rulemaking to mitigate risks associated with fatigue. In addition to our rulemaking we intend to provide guidance to crewmembers on fitness for duty and to air carriers on fatigue risk management. The FAA is developing a draft fitness for duty AC that elaborates on the pilot's responsibility to be physically fit for flight prior to accepting any flight assignment, which includes the pilot being properly rested. Additionally, the AC outlines the certificate holder's responsibility to ensure each flightcrew member is properly rested before assigning that flightcrew member to any flight. The FAA's goal is to publish the rulemaking and AC at the same time. We will keep the Board informed on the status of this recommendation.