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.
The proposed revisions to Part 121 and creation of Part 117 address many of these areas. As noted in the NPRM, the FAA drew from available data on sleep and fatigue science to provide a foundation for the proposed rule. In addition, the FAA reviewed international standards and drew from the experienced guidance of industry, including representatives from operators and labor who comprised the aviation rulemaking committee (ARC), as well as scientific advisors for this NPRM. The NTSB commends the FAA for its efforts to develop this critically important rule using a broadly inclusive, scientifically based approach. We expect that these efforts will yield the expedited adoption of a final rule that meets the needs of both the individual pilot and the industry in effectively mitigating fatigue hazards to improve safety.
Implementation of the proposed revisions will represent a significant improvement in the regulations to prevent flight crew fatigue in Part 121 operations. The NTSB's specific comments on several areas of the NPRM follow.
Consideration of Factors Affecting Alertness and Consolidation of Part 121
The NPRM takes into consideration length of duty day, starting time, workload, and time-zone changes. These factors have been shown by sleep and fatigue research to affect alertness, both alone and in combination with other factors. As a result, the proposal is a significant improvement over current regulations, which do not address the criticality of these factors as they relate to the development of fatigue. If adopted, the proposed rule would likely meet the intent of Safety Recommendation A-06-l0, which is currently on the NTSB's Most Wanted List of Transportation Safety Improvements.
The rule does not specifically address NTSB Safety Recommendation A-09-64, which calls for the need to address unique issues affecting the development of fatigue in short-haul operations through specific research into this area.2 Based on the ARC input, the proposed rule does shorten flight duty periods and maximum flight time based on the number of flight segments that exceed four in I day, which should help to mitigate fatigue in these operations.
However, as acknowledged in the NPRM, there is little data directly addressing short-haul operations, and, as recommended in Safety Recommendation A-09-64, research into factors affecting the development of fatigue in these operations (especially in the context of the proposed rule) would be beneficial.
By removing the former distinctions under Part 121 between domestic, flag carriers, supplemental, and operations conducted under Part 91 (including tail-end ferry flights), the NPRM acknowledges that the human fatigue factors are the same across these operations and science cannot support the notion of allowing longer duty hours for certain subgroups. Additionally, the proposed rule addresses the NTSB's longstanding concern of eliminating tail-end ferry flights in Part 121 operations. Adoption of this element of the proposed rule would likely meet the intent of Safety Recommendation A-95-113, which is currently on the NTSB's Most Wanted List of Transportation Safety Improvements.
Maximum Flight Time and Rest Period Expansion
The NPRM proposes to increase the maximum flight time from 8 to 10 hours and acknowledges that research in this area does not provide a definitive conclusion about the effect this would have on fatigue.3 The NTSB considers it important that the 10-hour flight times are only allowed for flight duty period start times between 0700-1259, which should ensure that flight crews do not accumulate this extended flight time during the circadian low. In addition, the reduction of the flight duty period as the number of flight segments exceeds four should help to mitigate risk associated with the increased workload that this part of the NPRM proposes.
However, the NTSB urges the FAA to proceed cautiously on the expansion of flight time to 10 hours and collect data on this proposed change so that any adverse consequences are identified and mitigated. In addition, the NTSB suggests that the FAA look to other modal administrations in the Department of Transportation to help assess the effect of this change on safety.
The NTSB is encouraged that, as defined in the proposed rule, a rest period begins once the flight crew arrives at the actual location of the rest facility (such as a hotel). This should help to ensure that crewmembers can allocate additional time to actual sleep during the defined rest period. Although the NPRM did not clearly define when the rest period would end, the FAA provided clarifying guidance to the rulemaking docket stating that the "rest opportunity commences when the flightcrew member reaches the hotel or suitable accommodation and ends when he or she checks out.
The NPRM also states that the required rest period would be extended to 9 hours, and the clarifying guidance states that the 9-hour rest opportunity should allow for an actual 8-hour sleep opportunity. However, the associated draft advisory circular (AC) on fitness for duty states that, "it is unrealistic to assume that a 9-hour rest period will yield 9 or even 8 hours of sleep when you take into consideration time lost in checking in at a hotel, eating, and preparing to resume duty at the conclusion of the sleep opportunity." The NTSB concurs with this observation6 and notes that the final rule should be consistent with the guidance contained in the draft AC. Therefore, the NTSB strongly encourages an increase in the duration of the required rest period to accommodate an opportunity for 8 hours of sleep.
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.
Fatigue Risk Management Systems and Data Collection
The NTSB is encouraged by the proposed rule's recognition of FRMS as a way for both operators and the FAA to make informed decisions about operator-specific exemptions to the rule to address unique operational challenges. NTSB safety recommendations on FRMS, which are on the NTSB's Most Wanted List of Transportation Safety Improvements, have asked for the development of FRMS guidance for operators, as well as a methodology for the FAA to evaluate the effectiveness of these systems. The NPRM references the development of AC 120-103, "Fatigue Risk Management Systems for Aviation Safety," which is intended to help operators develop and implement FRMS and is largely consistent with the intent of Safety Recommendation A-08-44. However, because the NPRM states that operators would only be required to implement an FRMS when they are seeking exemptions to the rules, the NTSB is concerned that the FAA's proposed implementation of FRMS is too narrow. Operators not seeking exemptions could benefit from the synergistic advantages of fatigue risk mitigation provided by an FRMS closely coupled with effective flight and duty time regulations, and, as noted in AC 120-103, there may also be economic benefits to implementing these systems. As recommended in Safety Recommendation A-08-45, the FAA should continue to pursue the development and use of a methodology to continually assess the effectiveness of FRMS. Independent of the concept of FRMS, the proposed rule requires operators to provide regular submissions of schedule data and maintain data on fitness-for-duty reporting. The NTSB notes that collection and analysis of these data will be critical to ensuring that the proposed rule has the intended effect and will allow both the industry and the FAA to identify the need for adjustments. Moreover, the continual assessment of system operation in this manner is an integral component of current data-driven feedback approaches to safety management, such as safety management systems (SMS) and FRMS. If the proposed rule becomes final, both the industry and the FAA must commit to more than rote data collection and ensure that these data are thoroughly evaluated to ensure that any unforeseen fatigue hazards are identified, understood, and corrected.
The NTSB's review of the NPRM suggests that, if adopted, the proposed rule will provide substantial benefits towards reducing the hazards associated with flight crew fatigue in Part 121 operations. As noted previously, the FAA chose to limit the scope of the NPRM, and therefore it does not specifically address Part 135 and Part 91 subpart K (fractional ownership) operations, which the NTSB has cited in related safety recommendations, or other safety critical personnel involved in air carrier operations. However, the NPRM does state that a proposal to address Part 135 operations may be forthcoming after the final rule for Part 121 is adopted. Although these areas are outside the scope of the current NPRM, the methodology the FAA used to develop the current NPRM should serve as a strong foundation for swiftly initiating regulatory efforts to address these other areas of concern, including NTSB recommendations pertaining to other safety critical personnel.
The NTSB believes that time is of the essence to finalize the rule for Part 121 operations based on this NPRM. The record of accidents clearly shows that fatigue has caused, contributed to, or been identified as a safety issue in multiple accidents involving Part 121 operators. Many of these accidents have occurred since the FAA's last attempt in 1995 to enact rulemaking that would have addressed flight time and duty time issues-an effort that was eventually terminated with no change to the regulations. We are hopeful that, with stakeholder support, the legacy of the current inclusive and scientifically based rulemaking effort will be far more positive and sustained, as the traveling public, crewmembers, and air carriers must not continue to endure the significant human loss of life and financial costs resulting from continued accidents involving fatigue.
The NTSB appreciates the opportunity to comment on this NPRM.