330 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 117, 119, and 121 

[Docket No. FAA–2009–1093; Amdt. Nos. 

117–1, 119–16, 121–357] 

RIN 2120–AJ58 

Flightcrew Member Duty and Rest 

Requirements 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This rule amends the FAA’s 

existing flight, duty and rest regulations 

applicable to certificate holders and 

their flightcrew members operating 

under the domestic, flag, and 

supplemental operations rules. The rule 

recognizes the universality of factors 

that lead to fatigue in most individuals 

and regulates these factors to ensure that 

flightcrew members in passenger 

operations do not accumulate dangerous 

amounts of fatigue. Fatigue threatens 

aviation safety because it increases the 

risk of pilot error that could lead to an 

accident. This risk is heightened in 

passenger operations because of the 

additional number of potentially 

impacted individuals. The new 

requirements eliminate the current 

distinctions between domestic, flag and 

supplemental passenger operations. The 

rule provides different requirements 

based on the time of day, whether an 

individual is acclimated to a new time 

zone, and the likelihood of being able to 

sleep under different circumstances. 

DATES: Effective January 14, 2014. 

ADDRESSES: For information on where to 

obtain copies of rulemaking documents 

and other information related to this 

final rule, see ‘‘How To Obtain 

Additional Information’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: For 

technical issues: Dale E. Roberts, Air 

Transportation Division (AFS–200), 

Flight Standards Service, Federal 

Aviation Administration, 800 

Independence Avenue SW., 

Washington, DC 20591; telephone (202) 

267–5749; email: dale.e.roberts@faa.gov. 

For legal issues: Rebecca MacPherson, 

Office of the Chief Counsel, Regulations 

Division (AGC–200), 800 Independence 

Avenue SW., Washington, DC 20591; 

telephone (202) 267–3073; email: 

rebecca.macpherson@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking 

The FAA’s authority to issue rules on 

aviation safety is found in Title 49 of the 

United States Code. This rulemaking is 

promulgated under the authority 

described in 49 U.S.C. 44701(a)(5), 

which requires the Administrator to 

promulgate regulations and minimum 

safety standards for other practices, 

methods, and procedures necessary for 

safety in air commerce and national 

security. This rulemaking is also 

promulgated under the authority 

described in 49 U.S.C. 44701(a)(4), 

which requires the Administrator to 

promulgate regulations in the interest of 

safety for the maximum hours or 

periods of service of airmen and other 

employees of air carriers. 

Table of Contents 

I. Overview of Final Rule 

II. Background 

A. Statement of the Problem 

B. National Transportation Safety Board 

(NTSB) Recommendations 

C. Flight and Duty Time Limitations and 

Rest Requirements Aviation Rulemaking 

Committee 

D. Congressional Mandate 

E. Notice of Proposed Rulemaking 

III. Discussion of Public Comments and Final 

Rule 

A. Applicability 

B. Definitions 

C. Fitness for Duty 

D. Fatigue Education and Training 

E. Fatigue Risk Management System 

F. Flight Duty Period—Unaugmented 

G. Flight Time Limitations 

H. Flight Duty Period—Augmented 

I. Schedule Reliability 

J. Extensions of Flight Duty Periods 

K. Split Duty 

L. Consecutive Nights 

M. Reserve 

N. Cumulative Limits 

O. Rest 

P. Deadhead Transportation 

Q. Emergency and Government Sponsored 

Operations 

R. Miscellaneous Issues 

IV. Regulatory Notices and Analyses 

A. Regulatory Evaluation 

B. Final Regulatory Flexibility Analysis 

C. International Trade Impact Assessment 

D. Unfunded Mandates Assessment 

E. Paperwork Reduction Act 

F. International Compatibility 

G. Environmental Analysis 

V. Executive Order Determinations 

A. Executive Order 12866 

B. Executive Order 13132, Federalism 

C. Executive Order 13211, Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use 

VI. How To Obtain Additional Information 

A. Rulemaking Documents 

B. Comments Submitted to the Docket 

C. Small Business Regulatory Enforcement 

Fairness Act 

I. Overview of Final Rule 

The FAA is issuing this final rule to 

address the risk that fatigue poses to 

passenger operations conducted under 

14 CFR part 121. Part 121 applies to the 

majority of flights flown by the 

American public. As such, changes to 

the existing flight, duty and rest rules in 

part 121 will directly affect the flying 

public. This rule applies to all part 121 

passenger operations, including 

traditional scheduled service and large 

charter operations. The FAA has 

removed the existing distinctions 

between domestic, supplemental and 

flag passenger operations because the 

factors leading to fatigue are universal 

and addressing the risk to the flying 

public should be consistent across the 

different types of operations. 

This final rule addresses fatigue risk 

in several ways. The underlying 

philosophy of the rule is that no single 

element of the rule mitigates the risk of 

fatigue to an acceptable level; rather, the 

FAA has adopted a system approach, 

whereby both the carrier and the pilot 

accept responsibility for mitigating 

fatigue. The carrier provides an 

environment that permits sufficient 

sleep and recovery periods, and the 

crewmembers take advantage of that 

environment. Both parties must meet 

their respective responsibilities in order 

to adequately protect the flying public. 

The final rule recognizes the natural 

circadian rhythms experienced by most 

people that causes them to be naturally 

more tired at night than during the day. 

Under the final rule, flightcrew 

members will be able to work longer 

hours during the day than during the 

night. Significant changes in time zones, 

a situation unique to aviation, are 

accounted for to reduce the risk to the 

flying public posed by ‘‘jetlag’’. 

The FAA has decided against 

adopting various provisions proposed in 

the NPRM. The final rule does not apply 

to all-cargo operations, although those 

carriers have the ability to fly under the 

new rules if they so choose. The 

proposal that carriers meet certain 

schedule reliability requirements has 

been dropped, as has the proposed 

requirement that carriers evaluate 

flightcrew members for fatigue. The 

FAA has determined that these 

provisions were either overly costly or 

impractical to implement. 

1. Fitness for Duty 

This rule places a joint responsibility 

on the certificate holder and each 

flightcrew member. In order for the 

flightcrew member to report for an FDP 

properly rested, the certificate holder 

must provide the flightcrew member 


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with a meaningful rest opportunity that 

will allow the flightcrew member to get 

the proper amount of sleep. Likewise, 

the flightcrew member bears the 

responsibility of actually sleeping 

during the rest opportunity provided by 

the certificate holder instead of using 

that time to do other things. The 

consequence of a flightcrew member 

reporting for duty without being 

properly rested is that he or she is 

prohibited from beginning or continuing 

an FDP until he or she is properly 

rested. 

2. Fatigue Education and Training 

Part 121 air carriers are currently 

statutorily-required to annually provide, 

as part of their Fatigue Risk 

Management Plan, fatigue-related 

education and training to increase the 

trainees’ awareness of: (1) Fatigue; (2) 

‘‘the effects of fatigue on pilots;’’ and (3) 

‘‘fatigue countermeasures.’’ Today’s rule 

adopts the same standard of training as 

required by the statute. In addition, 

today’s rule adopts a mandatory update 

of the carriers’ education and training 

program every two years, as part of the 

update to their FRMP. Both of these 

regulatory provisions merely place the 

existing statutory requirements in the 

new flight and duty regulations for the 

ease and convenience of the regulated 

parties and the FAA. 

3. Fatigue Risk Management System 

The FAA proposed a Fatigue Risk 

Management System (FRMS) as an 

alternative regulatory approach to 

provide a means of monitoring and 

mitigating fatigue. Under an FRMS, a 

certificate holder develops processes 

that manage and mitigate fatigue and 

meet an equivalent level of safety. The 

FAA is adopting that proposal largely as 

proposed. The FAA has also decided to 

extend the voluntary FRMS program to 

all-cargo operations, which are not 

required to operate under part 117. 

Under the FRMS provisions that this 

rule adds to subparts Q, R, and S of part 

121, an all-cargo operator that does not 

wish to operate under part 117 can 

nevertheless utilize an FRMS as long as 

it has the pertinent FAA approval. 

4. Unaugmented Operations 

One of the regulatory concepts that 

this rule introduces is the restriction on 

flightcrew members’ maximum Flight 

Duty Period (FDP). In creating a 

maximum FDP limit, the FAA 

attempted to address three concerns. 

First, flightcrew members’ circadian 

rhythms needed to be addressed 

because studies have shown that 

flightcrew members who fly during their 

window of circadian low (WOCL) can 

experience severe performance 

degradation. Second, the amount of time 

spent at work needed to be taken into 

consideration because longer shifts 

increase fatigue. Third, the number of 

flight segments in a duty period needed 

to be taken into account because flying 

more segments requires more takeoffs 

and landings, which are both the most 

task-intensive and the most safetycritical stages of flight. To address these 

concerns, the FAA is adopting as part of 

the regulatory text a table limiting 

maximum FDP based on the time of day 

and the number of segments flown 

during the FDP period. Under today’s 

rule an FDP begins when a flightcrew 

member is required to report for duty 

that includes a flight and ends when the 

aircraft is parked after the last flight and 

there is no plan for further aircraft 

movement by the same flightcrew 

member. The maximum FDP limit is 

reduced during nighttime hours to 

account for being awake during the 

WOCL; when an FDP period consists of 

multiple flight segments in order to 

account for the additional time on task; 

and if a flightcrew member is 

unacclimated to account for the fact that 

the unacclimated flightcrew member’s 

circadian rhythm is not in sync with the 

theater in which he or she is operating. 

Actual time at the controls (flight time) 

is limited to 8 or 9 hours, depending on 

the time of day that the FDP 

commences. 

5. Augmented Operations 

In order to accommodate common 

operational practices, the final rule 

allows longer duty periods in instances 

where the carrier provides additional 

crew and adequate on-board rest 

facilities. The extended FDPs are laid 

out in a table and provide maximum 

credit when an operator employs a 4- 

man crew and provides the highest 

quality on-board rest facility. 

6. Extensions of Flight Duty Periods 

This rule sets forth the limits on the 

number of FDPs that may be extended; 

implements reporting requirements for 

affected FDPs; and distinguishes 

extended FDPs due to unforeseen 

operational circumstances that occur 

prior to takeoff from those unforeseen 

operational circumstances that arise 

after takeoff. The FAA agrees that an 

extension must be based on exceeding 

the maximum FDP permitted in the 

regulatory tables rather than on the 

times that the air carrier had originally 

intended for an FDP, which may be 

considerably less than the tables allow. 

It is unreasonable to limit extensions on 

FDPs that are less than what the 

certificate holder can legally schedule. 

In addition, there is a 30-minute buffer 

attached to each FDP to provide 

certificate holders with the flexibility to 

deal with delays that are minimal. 

7. Split Duty 

Split duty rest breaks provide carriers 

with nighttime operations with 

additional flexibility. Typically split 

duty rest would benefit carriers who 

conduct late night and early morning 

operations where the flightcrew 

members would typically be afforded 

some opportunity to sleep, but would 

not receive a legal rest period. Under 

today’s rule split duty rest must be at 

least 3 hours long and must be 

scheduled in advance. The actual split 

duty rest breaks may not be shorter than 

the scheduled split duty rest breaks. The 

rationale for this is that flightcrew 

members must, at the beginning of their 

FDP, evaluate their ability to safely 

complete their entire assigned FDP. In 

order to do so, they must not only know 

the length of the FDP, but any 

scheduled split duty rest breaks that 

they will receive during the FDP. 

8. Consecutive Night Operations 

In formulating this rule, the FAA was 

particularly concerned about 

cumulative fatigue caused by repeatedly 

flying at night. Modeling shows 

substantially deteriorating performance 

after the third consecutive nighttime 

FDP for flightcrew members who 

worked nightshifts during their WOCL 

and obtained sleep during the day. 

However, if a sleep opportunity is 

provided during each nighttime FDP, 

that sleep opportunity may sustain 

flightcrew member performance for five 

consecutive nights. Based on modeling 

results, the FAA has determined that a 

2-hour nighttime sleep opportunity each 

night improves pilot performance 

sufficient to allow up to 5 nights of 

consecutive nighttime operations. 

9. Reserve 

The FAA has decided to rely on the 

expertise represented in the ARC to 

address the issue of reserve duty. The 

adopted regulatory provisions 

addressing reserve and unaugmented 

operations provide that the total number 

of hours a flightcrew member may 

spend in a flight duty period and 

reserve availability period may not 

exceed 16 hours or the maximum 

applicable flight duty period table plus 

four hours, whichever is less. This will 

allow most FDPs to be accommodated 

by a flightcrew member on short-call 

reserve. This rule adopts the proposal 

that limits the short-call reserve 

availability period, in which the 


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332 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

1The projected cost for all-cargo operations is 

$306 million ($214 million present value at 7% and 

$252 million at 3%). The projected benefit of 

avoiding one fatal all-cargo accident ranges between 

$20.35 million and $32.55 million, depending on 

the number of crewmembers on board the aircraft. 

flightcrew member is not called to 

report to work, to 14 hours. 

10. Cumulative Limits 

The FAA is adopting cumulative 

limits for FDP and flight-time limits. 

The FAA has decided to retain both of 

these cumulative limits because (1) the 

FDP limits restrict the amount of 

cumulative fatigue that a flightcrew 

member accumulates before and during 

flights; and (2) the flight-time limits 

allow the FAA to provide air carriers 

with more scheduling flexibility by 

setting higher cumulative FDP limits in 

this rule. This additional scheduling 

flexibility justifies the added restrictions 

on cumulative flight time, which can 

easily be tracked by scheduling 

programs currently in use throughout 

the industry. The FAA has decided to 

eliminate the cumulative duty-period 

limits, which should greatly simplify 

compliance with this section. 

11. Rest 

Carriers will be required to provide 

their crew with a 10-hour rest 

opportunity prior to commencing a duty 

period that includes flying. While the 

10-hour rest period may include the 

amount of time it takes to get to or from 

a flightcrew member’s house or hotel 

room, the actual amount of time 

required for a sleep opportunity may not 

be reduced below 8 hours. In addition, 

the length of continuous time off during 

a 7-day period has been extended from 

24 hours under the existing rules to 30 

hours. Additional time off is required 

for individuals whose internal clock 

may be off because of flipping back and 

forth between different time zones. 

12. Emergency and Government 

Sponsored Operations 

This rulemaking also addresses 

operations that require flying into or out 

of hostile areas, and politically 

sensitive, remote areas that do not have 

rest facilities. These operations range 

from an emergency situation to moving 

armed troops for the U.S. military, 

conducting humanitarian relief, 

repatriation, Air Mobility Command 

(AMC), and State Department missions. 

The applicability provision of this 

section now specifically articulates the 

two categories of operations that are 

affected. This section applies to 

operations conducted pursuant to 

contracts with the U.S. Government 

department and agencies. This section 

also applies to operations conducted 

pursuant to a deviation issued by the 

Administrator under § 119.57 that 

authorizes an air carrier to deviate from 

the requirements of parts 121 and 135 

to perform emergency operations. This 

authority is issued on a case-by-case 

basis during an emergency situation as 

determined by the Administrator. The 

FAA concludes that these two categories 

are the only types of operations that 

warrant separate consideration because 

of the unique operating circumstances 

that otherwise limit a certificate holder’s 

flexibility to deal with unusual 

circumstances. 

Costs and Benefits 

We have analyzed the benefits and the 

costs associated with the requirements 

contained in this final rule. We provide 

a range of estimates for our quantitative 

benefits. Our base case estimate is $376 

million ($247 million present value at 

7% and $311 million at 3%) and our 

high case estimate is $716 million ($470 

million present value at 7% and $593 

million at 3%). The FAA believes there 

are also not-quantified benefits to the 

rule that, when added to the base case 

estimate, make the rule cost beneficial. 

The total estimated cost of the final rule 

is $390 million ($297 million present 

value at 7% and $338 million at 3%). 

SUMMARY OVER A 10 YEAR PERIOD

Total quantified benefits 

Estimate Nominal 

(millions) 

PV at 7% 

(millions) 

PV at 3% 

(millions) 

Base ......................................................................................................................................................... $376 $247 $311 

High .......................................................................................................................................................... 716 470 593 

Total quantified costs 

Component Nominal 

(millions) 

PV at 7% 

(millions) 

PV at 3% 

(millions) 

Flight Operations ..................................................................................................................................... $236 $157 $191 

Rest Facilities .......................................................................................................................................... 138 129 134 

Training .................................................................................................................................................... 16 11 13 

Total .................................................................................................................................................. 390 297 338 

The FAA has made significant 

changes to the final rule since the 

NPRM. The training requirement has 

been substantially reduced because the 

FAA has determined that pilots are 

already receiving the requisite training 

as part of the statutorily required 

Fatigue Risk Management Plans. The 

FAA also has removed all-cargo 

operations from the applicability section 

of the new part 117 because their 

compliance costs significantly exceed 

the quantified societal benefits.1 Allcargo carriers may choose to comply 

with the new part 117 but are not 

required to do so. Since the carrier 

would decide voluntarily to comply 

with the new requirements, those costs 

are not attributed to the costs of this 

rule. The costs associated with the rest 

facilities occur in the two years after the 

rule is published. The other costs of the 

rule and the benefits are then estimated 

over the next ten years. 

II. Background 

On September 14, 2010, the FAA 

published a Flightcrew Member Duty 

and Rest Requirements notice of 

proposed rulemaking (NPRM) setting 

out proposed flight, duty, and rest 

regulations intended to limit flightcrew 

member fatigue in part 121 operations. 

These proposed regulations applied to 

all operations conducted pursuant to 

part 121, and the regulations would 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 333 

2Recovery sleep does not require additional sleep 

equal to the cumulative sleep debt; that is, an 8- 

hour sleep debt does not require 8 additional hours 

of sleep. 

3Rosekind MR. Managing work schedules: an 

alertness and safety perspective. In: Kryger MH, 

Roth T, Dement WC, editors. Principles and 

Practice of Sleep Medicine; 2005:682. 

have imposed, among other things, the 

following limits/requirements: (1) A 

requirement that a flightcrew member 

must notify the certificate holder (air 

carrier) when he or she is not fit for duty 

and that a certificate holder must also 

independently evaluate its flightcrew 

members for fitness for duty; (2) a limit 

on daily flight duty period (FDP) and 

flight-time hours that varies depending 

on the time of day that the FDP begins; 

(3) cumulative limits on FDPs, flight 

times, and duty periods; (4) a schedule 

reliability requirement, which stated 

that a certificate holder’s scheduled 

FDPs must be at least 95% consistent 

with actual FDPs; (5) a requirement that 

a flightcrew member be provided with 

at least 9 consecutive hours of rest 

between FDPs, as measured from the 

time the flightcrew member reaches a 

suitable accommodation; and (6) credit 

for employing fatigue-mitigating 

measures such as split-duty rest and 

augmentation. 

The FAA received over 8,000 

comments in response to the NPRM. In 

response to the comments, the FAA has 

made a number of changes to the 

regulatory provisions proposed in the 

NPRM. These changes include the 

following: 

• The mandatory provisions of the 

NPRM do not apply to all-cargo 

operations. Instead, this rule permits allcargo operations to voluntarily opt into 

the new flight, duty, and rest limitations 

imposed by this rule. 

• Certificate holders are no longer 

required to independently verify 

whether flightcrew members are fit for 

duty. 

• Most of the daily FDP limits have 

been increased to provide certificate 

holders with more scheduling 

flexibility. One of the daily flight-time 

limits has been decreased to address 

safety considerations. 

• The cumulative duty-period limit 

has been removed from this rule. 

• The schedule-reliability 

requirement has been largely removed 

from the final rule. The remaining parts 

of the schedule-reliability process have 

been changed to only apply to instances 

in which a flightcrew member exceeds 

the FDP and/or flight-time limits 

imposed by this rule. 

• The flightcrew member must now 

be provided with 10 hours of rest 

between FDP periods, but that rest is 

measured from the time that the 

flightcrew member is released from 

duty. The rest must provide for an 8- 

hour sleep opportunity. 

• The amount of credit provided for 

split-duty rest and augmentation has 

been increased, and changes to the final 

rule make these credits easier to obtain. 

The changes listed above are just 

some of the amendments that were 

made to the NPRM in response to the 

comments. The Discussion of Public 

Comments and Final Rule section of this 

preamble contains a discussion of the 

changes that were made to the NPRM in 

response to issues raised by the 

commenters. 

A. Statement of the Problem 

Fatigue is characterized by a general 

lack of alertness and degradation in 

mental and physical performance. 

Fatigue manifests in the aviation context 

not only when pilots fall asleep in the 

cockpit in flight, but perhaps more 

importantly, when they are 

insufficiently alert during take-off and 

landing. Reported fatigue-related events 

have included procedural errors, 

unstable approaches, lining up with the 

wrong runway, and landing without 

clearances. 

There are three types of fatigue: 

Transient, cumulative, and circadian. 

Transient fatigue is acute fatigue 

brought on by extreme sleep restriction 

or extended hours awake within 1 or 2 

days. Cumulative fatigue is fatigue 

brought on by repeated mild sleep 

restriction or extended hours awake 

across a series of days. Circadian fatigue 

refers to the reduced performance 

during nighttime hours, particularly 

during an individual’s WOCL (typically 

between 2 a.m. and 6 a.m.). 

Common symptoms of fatigue 

include: 

• Measurable reduction in speed and 

accuracy of performance, 

• Lapses of attention and vigilance, 

• Delayed reactions, 

• Impaired logical reasoning and 

decision-making, including a reduced 

ability to assess risk or appreciate 

consequences of actions, 

• Reduced situational awareness, and 

• Low motivation to perform optional 

activities. 

A variety of factors contribute to 

whether an individual experiences 

fatigue as well as the severity of that 

fatigue. The major factors affecting 

fatigue include: 

• Time of day. Fatigue is, in part, a 

function of circadian rhythms. All other 

factors being equal, fatigue is most 

likely, and, when present, most severe, 

between the hours of 2 a.m. and 6 a.m. 

• Amount of recent sleep. If a person 

has had significantly less than 8 hours 

of sleep in the past 24 hours, he or she 

is more likely to be fatigued. 

• Time awake. A person who has 

been continually awake for a long 

period of time since his or her last major 

sleep period is more likely to be 

fatigued. 

• Cumulative sleep debt. For the 

average person, cumulative sleep debt is 

the difference between the amount of 

sleep a person has received over the 

past several days, and the amount of 

sleep he or she would have received 

with 8 hours of sleep a night. 

• Time on task. The longer a person 

has continuously been doing a job 

without a break, the more likely he or 

she is to be fatigued. 

• Individual variation. Individuals 

respond to fatigue factors differently 

and may become fatigued at different 

times, and to different degrees of 

severity, under the same circumstances. 

Scientific research and 

experimentation have consistently 

demonstrated that adequate sleep 

sustains performance. For most people, 

8 hours of sleep in each 24-hour period 

sustains performance indefinitely. Sleep 

opportunities during the WOCL are 

preferable because sleep that occurs 

during the WOCL provides the most 

recuperative value. Within limits, 

shortened periods of nighttime sleep 

may be nearly as beneficial as a 

consolidated sleep period when 

augmented by additional sleep periods, 

such as naps before evening departures, 

during flights with augmented 

flightcrews, and during layovers. Sleep 

should not be fragmented with 

interruptions. In addition, 

environmental conditions, such as 

temperature, noise, and turbulence, 

impact how beneficial sleep is and how 

performance is restored. 

When a person has accumulated a 

sleep debt, recovery sleep is necessary 

to fully restore the person’s ‘‘sleep 

reservoir.’’ Recovery sleep should 

include at least one physiological night, 

that is, one sleep period during 

nighttime hours in the time zone in 

which the individual is acclimated. The 

average person requires in excess of 9 

hours of sleep a night to recover from 

a sleep debt. 2

Several aviation-specific work 

schedule factors 3 can affect sleep and 

subsequent alertness. These include 

early start times, extended work 

periods, insufficient time off between 

work periods, insufficient recovery time 

off between consecutive work periods, 

amount of work time within a shift or 

duty period, number of consecutive 

work periods, night work through one’s 

window of circadian low, daytime sleep 


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4While several of the commenters have claimed 

that the NPRM proposed a ‘‘one-size-fits-all’’ 

regulatory structure, the FAA believes this 

suggestion is misleading. In the NPRM, and in the 

final rule with regard to passenger-carrying 

operations, the FAA has eliminated distinctions 

between domestic, flag, and supplemental 

operations, but in all of these operations, the rule 

imposes differing requirements based on the 

operating environment. 

5On February 2, 2010, the NTSB released a press 

release summarizing the results of its investigation 

into the Colgan Air crash of February 12, 2009, 

which resulted in the death of 50 people. The NTSB 

did not state that fatigue was causal factor to the 

crash; however, it did recommend that the FAA 

take steps to address pilot fatigue. 

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

The FAA believes that its current 

regulations do not adequately address 

the risk of fatigue. The impact of this 

risk is greater in passenger operations 

due to the number of persons placed at 

risk. Presently, flightcrew members are 

effectively allowed to work up to 16 

hours a day (regardless of the time of 

day), with all of that time spent on tasks 

directly related to aircraft operations. 

The regulatory requirement for 9 hours 

of rest is regularly reduced, with 

flightcrew members spending rest time 

traveling to or from hotels and being 

provided with little to no time to 

decompress. Additionally, certificate 

holders regularly exceed the allowable 

duty periods by conducting flights 

under part 91 instead of part 121, where 

the applicable flight, duty and rest 

requirements are housed. As the 

National Transportation Safety Board 

repeatedly notes, the FAA’s regulations 

do not account for the impact of 

circadian rhythms on alertness. The 

entire set of regulations is overly 

complicated, with a different set of 

regulations for domestic operations, flag 

operations, and supplemental 

operations. In addition, these 

regulations do not consider other factors 

that can lead to varying degrees of 

fatigue. Instead, each set of operational 

rules (i.e. those applicable to domestic, 

flag, or supplemental operations) sets 

forth a singular approach toward 

addressing fatigue, regardless of the 

operational circumstances that may be 

more or less fatiguing.4

B. National Transportation Safety Board 

(NTSB) Recommendations 

The NTSB has long been concerned 

about the effects of fatigue in the 

aviation industry. The first aviation 

safety recommendations, issued in 1972, 

involved human fatigue, and aviation 

safety investigations continue to 

identify serious concerns about the 

effects of fatigue, sleep, and circadian 

rhythm disruption. Currently, the 

NTSB’s list of Most Wanted 

Transportation Safety Improvements 

includes safety recommendations 

regarding pilot fatigue. These 

recommendations are based on two 

accident investigations and an NTSB 

safety study on commuter airline 

safety.5

In February 2006 the NTSB issued 

safety recommendations after a BAE– 

J3201 operated under part 121 by 

Corporate Airlines struck trees on final 

approach and crashed short of the 

runway at Kirksville Regional Airport, 

Kirksville, Missouri. The captain, first 

officer, and 11 of the 13 passengers 

died. The NTSB determined the 

probable cause of the October 19, 2004 

accident was the pilots’ failure to follow 

established procedures and properly 

conduct a non-precision instrument 

approach at night in instrument 

meteorological conditions. The NTSB 

concluded that fatigue likely 

contributed to the pilots’ performance 

and decision-making ability. This 

conclusion was based on the less than 

optimal overnight rest time available to 

the pilots, the early report time for duty, 

the number of flight legs, and the 

demanding conditions encountered 

during the long duty day. 

As a result of the accident, the NTSB 

issued the following safety 

recommendations related to flight and 

duty time limitations: (1) Modify and 

simplify the flightcrew hours-of-service 

regulations to consider factors such as 

length of duty day, starting time, 

workload, and other factors shown by 

recent research, scientific evidence, and 

current industry experience to affect 

crew alertness (recommendation No. A– 

06–10); and (2) require all part 121 and 

part 135 certificate holders to 

incorporate fatigue-related information 

similar to the information being 

developed by the DOT Operator Fatigue 

Management Program into initial and 

recurrent pilot training programs. The 

recommendation notes that this training 

should address the detrimental effects of 

fatigue and include strategies for 

avoiding fatigue and countering its 

effects (recommendation No. A–06–10). 

The NTSB’s list of Most Wanted 

Transportation Safety Improvements 

also includes a safety recommendation 

on pilot fatigue and ferry flights 

conducted under 14 CFR part 91. Three 

flightcrew members died after a Douglas 

DC–8–63 operated by Air Transport 

International was destroyed by ground 

impact and fire during an attempted 

three-engine takeoff at Kansas City 

International Airport in Kansas City, 

Missouri. The NTSB noted that the 

flightcrew conducted the flight as a 

maintenance ferry flight under part 91 

after a shortened rest break following a 

demanding round trip flight to Europe 

that crossed multiple time zones. The 

NTSB further noted that the 

international flight, conducted under 

part 121, involved multiple legs flown 

at night following daytime rest periods 

that caused the flightcrew to experience 

circadian rhythm disruption. In 

addition, the NTSB found the captain’s 

last rest period before the accident was 

repeatedly interrupted by the certificate 

holder. 

In issuing its 1995 recommendations, 

the NTSB stated that the flight time 

limits and rest requirements under part 

121 that applied to the flightcrew before 

the ferry flight did not apply to the ferry 

flight operated under part 91. As a 

result, the regulations permitted a 

substantially reduced flightcrew rest 

period for the nonrevenue ferry flight. 

As a result of the investigation, the 

NTSB reiterated earlier 

recommendations to (1) finalize the 

review of current flight and duty time 

limitations to ensure the limitations 

consider research findings in fatigue 

and sleep issues and (2) prohibit 

certificate holders from assigning a 

flightcrew to flights conducted under 

part 91 unless the flightcrew met the 

flight and duty time limits under part 

121 or other applicable regulations 

(recommendation No. A–95–113). 

In addition to recommending a 

comprehensive approach to fatigue with 

flight duty limits based on fatigue 

research, circadian rhythms, and sleep 

and rest requirements, the NTSB has 

also stated that a Fatigue Risk 

Management System (FRMS) may hold 

promise as an approach to dealing with 

fatigue in the aviation environment. 

However, the NTSB noted that it 

considers fatigue management plans to 

be a complement to, not a substitute for, 

regulations to address fatigue. 

C. Flight and Duty Time Limitations and 

Rest Requirements Aviation Rulemaking 

Committee 

As part of this rulemaking action, the 

FAA chartered an aviation rulemaking 

committee (ARC) on June 24, 2009. The 

FAA brought together pilots, airlines, 

and scientific experts to collaborate and 

develop options for an FAA-proposed 

rulemaking to help mitigate pilot 

fatigue. The ARC provided a forum for 

the U.S. aviation community to discuss 

current approaches to mitigate fatigue 

found in international standards (e.g., 

the International Civil Aviation 

Organization (ICAO) standard, the 

United Kingdom Civil Aviation 

Publication (CAP) 371, and the 

European Aviation Safety Agency 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 335 

6 75 FR 55852; September 14, 2010. 

7 75 FR 62486; October 12, 2010. 

8 75 FR 63424; October 15, 2010. 

9 75 FR 55852, 55857 (Sep. 14, 2010). 

Notice of Proposed Amendment). The 

ARC provided its report, a copy of 

which is in this rulemaking docket, to 

the agency on September 9, 2009. 

D. Congressional Mandate 

On August 1, 2010, the President 

signed the Airline Safety and Federal 

Aviation Administration Extension Act 

of 2010 (Pub. L. 111–216). Section 212 

of Public Law 111–216 required ‘‘the 

FAA Administrator to issue regulations 

to limit the number of flight and duty 

time hours allowed for pilots to address 

pilot fatigue.’’ This section, in 

subsection 212(a)(3), set a deadline of 

180 days for the FAA to publish an 

NPRM and 1 year for the FAA to issue 

a final rule. 

E. Notice of Proposed Rulemaking 

On September 14, 2010, the FAA 

published in the Federal Register the 

Flightcrew Member Duty and Rest 

Requirements NPRM.6 The NPRM 

proposed to amend the FAA’s existing 

flight, duty, and rest regulations 

applicable to certificate holders and 

their flightcrew members. The proposal 

recognized the factors that lead to 

fatigue in most individuals, and it 

proposed to regulate these factors to 

ensure that flightcrew members do not 

accumulate dangerous amounts of 

fatigue. Because the proposed rule 

addressed fatigue factors that apply 

universally, the proposed requirements 

eliminated the existing distinctions 

between domestic, flag and 

supplemental operations. The proposal 

also provided different requirements 

based on the time of day, whether an 

individual is acclimated to a new time 

zone, and the likelihood of being able to 

sleep under different circumstances. 

The NPRM provided for a 60-day 

comment period, which ended on 

November 15, 2010. Following 

publication of the NPRM, the FAA 

received a number of requests to extend 

the comment period and to clarify 

various sections of the preamble, 

regulatory text, and the Regulatory 

Impact Analysis (RIA). In response, the 

agency published two actions in the 

Federal Register. 

The first action was a ‘‘Notice of 

procedures for submission of clarifying 

questions.’’ 7 Persons asking for 

clarifications were advised to file their 

questions to the rulemaking docket by 

October 15, 2010. The FAA said it 

would respond by October 22, 2010. On 

October 22, 2010, the agency filed two 

response documents to the rulemaking 

docket: ‘‘Response to Clarifying 

Questions to the RIA’’ and ‘‘Response to 

Clarifying Questions to the NPRM.’’ 

The second action was a ‘‘Response to 

requests for a comment period 

extension.’’ 8 The FAA provided notice 

that the comment period would not be 

extended. The agency’s rationale for this 

decision is outlined in the October 15, 

2010 action. 

The FAA received more than 8,000 

comment submissions, containing 

multiple comments on various sections 

of the preamble and the rule. Many 

comment submissions also included 

specific recommendations for changes 

and clarifications. 

III. Discussion of Public Comments and 

Final Rule 

A. Applicability 

In the NPRM, the FAA stated that 

fatigue factors are ‘‘universal.’’ 9 The 

FAA noted that sleep science, while still 

evolving, was clear in several important 

respects: 

Most people need eight hours of sleep to 

function effectively, most people find it more 

difficult to sleep during the day than during 

the night, resulting in greater fatigue if 

working at night; the longer one has been 

awake and the longer one spends on task, the 

greater the likelihood of fatigue; and fatigue 

leads to an increased risk of making a 

mistake. 

Id. In light of its determination 

concerning the universal applicability of 

factors underlying fatigue, the FAA 

proposed a single set of flight, duty, and 

rest regulations that would regulate 

these factors. The proposed regulations 

would have been applicable to all part 

121 domestic, flag, and supplemental 

operations. The proposed regulations 

would also have applied to all part 91 

flights conducted by part 121 certificate 

holders, including flights, such as ferry 

flights, that have historically been 

conducted under part 91. The NPRM 

also stated that ‘‘the part 135 

community should expect to see an 

NPRM addressing its operations that 

looks very similar to, if not exactly like, 

the final rule the agency anticipates 

issuing as part of its rulemaking 

initiative.’’ Id. The comments received 

in response to the proposed 

applicability of this rule and the 

corresponding FAA responses are 

included below. 

The National Air Carrier Association 

(NACA) and a number of air carriers 

operating non-scheduled flights 

objected to the proposed rule applying 

to supplemental operations. These 

industry commenters stated that nonscheduled operations require additional 

scheduling flexibility because they are 

fundamentally different from scheduled 

operations. The industry commenters 

stated that, unlike scheduled operations, 

non-scheduled operations provide ondemand operations on behalf of private 

and government consumers on a 

timetable that is determined by the 

consumer. According to the industry 

commenters, non-scheduled carriers do 

not have regularly-set schedules that 

they know months in advance, but are 

instead called to fly with little advance 

notice, making it more difficult to plan 

flightcrew member flight times and rest 

periods. The industry commenters 

emphasized that this difficulty is 

exacerbated by the fact that nonscheduled operations’ flight times 

(especially departure times) are 

controlled largely by the consumer and 

not the air carrier. 

The non-scheduled industry 

commenters also asserted that nonscheduled carriers serve remote, 

sometimes hostile locations, with no 

established crew bases. Thus, they do 

not have the same extensive 

infrastructure that scheduled operations 

have access to and must deadhead 

flightcrew members into remote 

locations in order to be able to swap out 

flightcrew members during an 

operation. These commenters 

emphasized that the certificate holders 

running non-scheduled operations are 

largely small businesses that will have 

difficulty adjusting to the burdens 

imposed by this rule. 

Based on the differences between 

non-scheduled and scheduled 

operations, the industry commenters 

stated that a ‘‘one-size-fits-all’’ approach 

does not work for non-scheduled 

operations. The industry commenters 

stated that the existing regulations 

governing supplemental operations have 

existed for over 60 years, and that 

changing these regulations will 

adversely affect air security and national 

defense missions conducted through the 

use of non-scheduled operations. The 

commenters emphasized that the 

existing supplemental flight, duty, and 

rest regulations ensure aviation safety 

by containing additional rest 

requirements that are not a part of this 

rule. In conclusion, the industry 

commenters suggested that the FAA 

either: (1) Retain the existing flight, 

duty, and rest regulations governing 

supplemental operations, and/or (2) 

adopt the alternative proposal put 

forward by the industry commenters. 

In addition to the concerns expressed 

by non-scheduled air carriers, the Cargo 

Airline Association (CAA) and a 

number of air carriers operating allcargo flights have also objected to the 


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336 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

10 72 FR 1808, 1816 (2007). 

proposed rule applying to supplemental 

operations. These industry commenters 

asserted that, while a passengeroperation accident can result in 

numerous fatalities, an all-cargo 

accident would consist primarily of 

property damage. 

The commenters also stated that the 

cargo industry is composed of both 

scheduled and on-demand operators, 

and that it specializes in express 

delivery services. To effectuate these 

express delivery services, some all-cargo 

carriers do not maintain U.S. domicile 

bases and regularly operate long-haul 

flights and point-to-point operations 

outside the United States, traveling 

across multiple time zones at all hours 

of the day and night. The industry 

commenters also stated that all-cargo 

carriers regularly operate around the 

world in all directions with extended 

overseas routings, not with quick 

overnight turns at foreign destinations. 

This results in a lower aircraft 

utilization rate than domestic passenger 

operations. According to the industry 

commenters, these types of nighttime 

and around-the-world operations are the 

norm for all-cargo carriers. 

The all-cargo industry commenters 

added that, similar to non-scheduled 

operations, some all-cargo operations 

also fly to remote, undeveloped, and 

sometimes hostile locations. According 

to the industry commenters, these types 

of operations are driven by the same 

considerations as similar non-scheduled 

operations: (1) The schedule is 

determined primarily by the customer, 

and (2) there is a lack of infrastructure, 

which necessitates deadheading in 

flightcrew members. The industry 

commenters emphasized that many allcargo carriers currently provide their 

flightcrew members with split duty rest 

while cargo is being sorted at sorting 

facilities, and that the carriers have 

invested millions of dollars in highquality rest facilities. The industry 

commenters also stated that flightcrew 

members working in all-cargo 

operations fly fewer total hours than 

their passenger-transporting 

counterparts. The industry commenters 

concluded by asking the FAA to either: 

(1) Retain the existing flight, duty, and 

rest regulations that govern 

supplemental operations, or (2) adopt 

the alternative proposal that they have 

included in their comments. 

Conversely, a number of labor groups 

submitted comments approving of a 

single flight, duty, and rest standard. 

These groups stated that they were 

‘‘pleased that the FAA has 

acknowledged the current science and 

recognizes that pilot fatigue does not 

differ whether the pilot is operating 

domestically, internationally or in 

supplemental operations.’’ The NTSB 

also expressed support for a single 

flight, duty, and rest standard, 

commending the proposed rule for 

recognizing that ‘‘human fatigue factors 

are the same across [domestic, flag, and 

supplemental] operations and science 

cannot support the notion of allowing 

longer duty hours for certain 

subgroups.’’ Numerous individual 

commenters have also stated that the 

existing 16-hour duty periods utilized 

by supplemental operations result in an 

unsafe amount of fatigue. 

In addition to the concerns expressed 

by the preceding comments, United Air 

Lines (United) objected to the 

applicability of this rule to flightcrew 

members who conduct only part 91 

operations on behalf of part 121 

certificate holders. United stated that 

the original reason for the applicability 

of this rule to part 91 operations on 

behalf of part 121 certificate holders was 

to ensure that flightcrew members 

operating under part 121 did not use 

part 91 to avoid their flight, duty, and 

rest requirements under part 121. 

Because flightcrew members who only 

conduct part 91 operations cannot 

conduct part 121 flights, United argued 

that these flightcrew members should 

not be subject to this rule. 

The FAA also received a number of 

other questions and concerns about the 

applicability of this rule. The NetJets 

Association of Shared Aircraft Pilots 

(NJASAP) asked how this rule would 

apply to certificate holders who operate 

under several different parts of the 

regulation (e.g., Part 121, Part 135, 

Subpart 91K). The Regional Airline 

Association (RAA) asked the FAA to 

amend this section in order to clarify 

that this rule applies to ‘‘operations 

directed by the certificate holder under 

part 91 of this chapter.’’ In addition, a 

number of part 135 certificate holders 

objected to having their operations 

included in the proposed flight, duty, 

and rest requirements. These 

commenters asserted that part 135 

operations are fundamentally different 

from part 121 operations, and thus, 

these operations should not be subject 

to the same requirements. 

In response to concerns expressed by 

part 135 certificate holders, the FAA 

emphasizes that this rule does not apply 

to part 135 operations. If, in the future, 

the FAA initiates a rulemaking to 

change the existing part 135 flight, duty, 

and rest regulations, the FAA will 

solicit comments from the affected 

stakeholders and respond to part-135- 

specific concerns at that time. 

Turning to concerns expressed by 

United, this rule applies to some part 91 

operations because many flightcrew 

members involved in part 121 

operations have routinely used part 91 

as a way of exceeding the limits 

imposed by the part 121 flight, duty, 

and rest requirements. However, the 

FAA agrees with United that there is no 

reason to require flightcrew members 

who do not fly any part 121 operations 

to comply with part 121 flight, duty, 

and rest requirements. Accordingly, the 

FAA has amended this rule so that it 

applies to flightcrew members operating 

under part 91 only if at least one their 

flight segments is operated under part 

117. Flightcrew members operating 

under part 91 and who do not have any 

flight segments subject to part 117 (e.g. 

pilots flying only part 91 operations) are 

not subject to the provisions of this rule. 

Turning to concerns expressed by air 

carriers conducting all-cargo operations, 

as discussed in the regulatory 

evaluation, the FAA has determined 

that this rule would create far smaller 

benefits for all-cargo operations than it 

does for passenger operations. 

Consequently, the FAA is unable to 

justify imposing the cost of this rule on 

all-cargo operations. The FAA notes that 

in the past it has excluded all-cargo 

operations from certain mandatory 

requirements due to the different costbenefit comparison that applies to allcargo operations. For example, in 2007, 

the FAA excluded all-cargo operations 

of airplanes with more than two engines 

from many of the requirements of the 

extended range operations (ETOPS) rule 

because the cost of these provisions for 

all-cargo operations relative to the 

potential societal benefit was simply too 

high.10

Based on the cost-benefit analysis of 

this rule and its past precedent, the FAA 

has amended this rule to make 

compliance with part 117 voluntary for 

all-cargo operations and to allow those 

operations to continue operating under 

the existing part 121 flight, duty, and 

rest regulations if they choose to do so. 

As such, this rule now allows all-cargo 

operations to voluntarily determine, as 

part of their collective bargaining and 

business decisions, whether they wish 

to operate under part 117. 

In order to prevent manipulation of 

this voluntary provision, certificate 

holders who wish to operate their allcargo operations under part 117 cannot 

pick and choose specific flights to 

operate under this rule. Instead, the 

certificate holders can only elect to 

operate under part 117: (1) All of their 

all-cargo operations conducted under 

contract to a U.S. government agency; 

and (2) all of their all-cargo operations 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 337 

11 14 CFR 121.505(b). The existing regulations do 

not regulate FDPs, but instead, regulate the length 

of duty time. The FAA believes that duty time, as 

used in the existing regulations, is roughly 

equivalent to the concept of an FDP because 

flightcrew members typically begin and end their 

duty periods at about the same times as an FDP, as 

defined by this rule, would begin and end. 

12 14 CFR 121.523(c). 

13An unaugmented flight contains the minimum 

number of flightcrew members necessary to safely 

pilot an aircraft. An augmented flight contains 

additional flightcrew members and at least one 

onboard rest facility, which allows flightcrew 

members to work in shifts and sleep during the 

flight. 

14The FAA notes that this rule technically allows 

an unaugmented flightcrew member to work on a 

16-hour FDP if a 14-hour FDP is extended through 

the use of a 2-hour FDP extension. However, a 14- 

hour unaugmented FDP is only permitted during 

periods of peak circadian alertness, and the 2-hour 

FDP extension is subject to additional safeguards. 

A 30-hour FDP is never permitted, although a 

carrier could potentially develop an FRMS that 

allowed a 30-hour FDP in augmented operations. 

15See Simon Folkard & Philip Tucker, Shift work, 

safety and productivity, Occupational Medicine, 

Feb. 1, 2003, at 98 (analyzing three studies that 

reported a trend in risk over successive hours on 

duty). 

16 Id. The FAA notes that the Federal Motor 

Carrier Safety Administration, another DOT agency, 

has examined studies comparing crash risk to hours 

worked in certain truck operations. Similar to the 

Folkard & Tucker study, these studies found a 

steady rise in crash risk with additional work hours; 

however, they did not show an increase as rapid as 

the results reported by Folkard and Tucker. (See, for 

example, Blanco, M., Hanowski, R., Olson, R., 

Morgan, J., Soccolich, S., Wu, S.C., and Guo, F., 

‘‘The Impact of Driving, Non-Driving Work, and 

Rest Breaks on Driving Performance in Commercial 

Motor vehicle Operations,’’ FMCSA, April 2011). 

17 Jeffrey H. Goode, Are pilots at risk of accidents 

due to fatigue?, Journal of Safety Research 34 (2003) 

309–13. 

18 Id. at 311. 

not conducted under contract to a U.S. 

Government agency. 

Turning to the objections expressed 

by non-scheduled passenger operations, 

the FAA notes that existing regulations 

set out different flight, duty, and rest 

standards for part 121 domestic, flag, 

and supplemental operations. Under 

these regulations, supplemental 

operations consist of non-scheduled, allcargo, and public-charter flights. The 

existing regulations provide 

supplemental operations with 

significant scheduling flexibility 

because they allow air carriers 

conducting supplemental operations to 

schedule unaugmented flightcrew 

members for 16-hour FDPs 11 and 

augmented flightcrew members for 30- 

hour FDPs 12 regardless of the time of 

day.13

The FAA acknowledges that this rule 

will significantly impact supplemental 

passenger operations because it reduces 

the existing 16- and 30-hour across-theboard limits. This section discusses 

these reductions and why they are 

justified in light of the flexibility 

concerns of non-scheduled passenger 

operations. The other changes made by 

this rule that affect supplemental 

operations are discussed in the other 

parts of this preamble. 

The FAA has decided to impose the 

same FDP limits on supplemental 

passenger operations as other part 121 

operations because it has determined 

that the 16-hour unaugmented FDP and 

the 30-hour augmented FDP permitted 

by existing supplemental flight, duty, 

and rest regulations are almost always 

unsafe for passenger operations.14 As 

discussed in other parts of this 

preamble, a series of studies analyzing 

the national accident rate as a function 

of the amount of hours worked have 

shown that after a person works for 

about eight or nine hours, the risk of an 

accident increases exponentially for 

each additional hour worked.15

According to these studies, the risk of 

an accident in the 12th hour of a work 

shift is ‘‘more than double’’ the risk of 

an accident in the 8th hour of a work 

shift.16 Based on this exponential 

increase in the accident rate, the FAA 

has determined that the risk of an 

accident in the 16th hour of an 

unaugmented FDP rises to unacceptable 

levels for passenger operations, 

especially for shifts that take place 

during the WOCL. The FAA has also 

determined, based on the above data, 

that a 30-hour FDP likewise poses an 

unacceptably high risk of an accident 

for passenger operations even with the 

fatigue-mitigation benefits provided by 

augmentation. 

In determining that a 16-hour 

unaugmented and a 30-hour augmented 

FDP is unsafe for passenger operations, 

the FAA has also taken into account the 

fact that aviation-specific data shows 

that FDPs of this length significantly 

increase the risk of an accident. A study 

published in 2003 analyzed the accident 

rate of pilots as a function of the amount 

of time that the pilots spent on duty.17

The study found that: 

[T]he proportion of accidents associated 

with pilots having longer duty periods is 

higher than the proportion of longer duty 

periods for all pilots. For 10–12 hours of duty 

time, the proportion of accident pilots with 

this length of duty period is 1.7 times as large 

as for all pilots. For pilots with 13 or more 

hours of duty, the proportion of accident 

pilot duty periods is over five and a half 

times as high.18

Because studies examining the 

national accident rate and aviationspecific accidents have both shown that 

working over 13 hours significantly 

increases the risk of an accident, the 

FAA has decided to disallow the 16- 

hour unaugmented and 30-hour 

augmented FDPs currently permitted in 

supplemental passenger operations by 

subjecting supplemental passenger 

operations to the same FDP limits as 

other part 121 passenger operations. The 

effect that other provisions of this rule 

will have on supplemental passenger 

operations and the reasons why the 

FAA has chosen to adopt these 

provisions are discussed in the 

corresponding portions of this 

preamble. 

The FAA understands that including 

supplemental passenger operations in 

this rule will take away a portion of the 

scheduling flexibility currently enjoyed 

by non-scheduled passenger operations. 

However, this rule contains a number of 

provisions that ease the burden of 

current rules on non-scheduled 

operations in a way that does not 

decrease safety. 

The most significant way in which 

this rule eases the burden of existing 

rules on supplemental passenger 

operations is the elimination of 

compensatory rest requirements. Under 

the existing rules, a pilot who flies an 

aircraft for over 8 hours in a 

supplemental operation must receive a 

compensatory rest period that is 16 

hours or longer (depending on whether 

the flight was augmented) at the 

conclusion of his or her duty day. This 

compensatory rest requirement imposed 

a significant burden on supplemental 

passenger operations because pilots had 

to be provided with at least 16 hours of 

rest simply for flying for 9 hours. In 

addition, the FAA found that by 

focusing on flight time and not on FDP, 

the existing supplemental flight, duty, 

and rest regulations led to 

counterintuitive results in which long 

16- and 30-hour FDPs were permitted 

with only a 9-hour required rest period, 

but a 9-hour flight time with a 

relatively-short FDP resulted in a 16- to 

18-hour required rest period. 

In order to address the concerns 

discussed in the preceding paragraph 

and because there was an absence of 

scientific data showing that rest periods 

providing for more than 8 hours of sleep 

were always necessary to combat 

transient fatigue, this rule eliminates the 

existing compensatory rest requirements 

for supplemental passenger operations. 

The removal of this additional rest 

requirement will allow certificate 

holders conducting non-scheduled 

passenger operations to fly augmented 

international operations, including 

those that are under contract with the 

United States Government, without 

having to provide flightcrew members 

with an additional 6 hours of rest at the 

end of the operation. In addition, to 

ensure that certificate holders 


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338 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

conducting supplemental operations are 

able to provide critical services in 

support of government operations, this 

rule also contains an Emergency and 

Government Sponsored Operations 

section that allows operations 

performed in accordance with a 

government contract to exceed this 

rule’s flight, duty, and rest limits in 

certain situations. 

Another example of a provision in 

this rule that benefits supplemental 

passenger operations is the increase of 

the flight-time limits for augmented and 

unaugmented flights. This increase will 

allow certificate holders conducting 

supplemental operations to schedule 

unaugmented flightcrew members for 9 

hours of flight time during peak 

circadian times after providing them 

with only 10 hours of rest. The existing 

regulations would require certificate 

holders conducting supplemental 

operations to provide their flightcrew 

members with 18 hours of rest after an 

operation involving 9 hours of 

unaugmented flight time. 

In addition to including provisions 

that ease the burden of the maximumFDP-limit reduction on supplemental 

operations, the FAA has also made 

adjustments to this rulemaking in 

response to concerns raised by air 

carriers (certificate holders) conducting 

non-scheduled passenger operations. 

Thus, the FAA has: (1) Increased the 

unaugmented and augmented FDP 

limits in Tables B and C, (2) increased 

the amount of the split-duty credit and 

made that credit easier to obtain, and (3) 

largely eliminated the scheduling 

reliability requirements that were 

proposed in the NPRM. All of these 

adjustments were made, at least in part, 

in response to the concerns raised by 

certificate holders conducting nonscheduled operations, and they should 

significantly ease the burden of this rule 

on these types of operations. In making 

these adjustments, the FAA has, where 

possible, incorporated into this rule 

portions of the alternative proposal put 

forward by the industry commenters 

who conduct non-scheduled passenger 

operations. 

While air-carrier business models for 

passenger operations may differ, the 

factors that give rise to unsafe levels of 

fatigue are the same for each flightcrew 

member involved in these operations. A 

flightcrew member working a 16 or 30- 

hour FDP as part of a supplemental 

passenger operation will not be less 

tired simply because he or she is 

working in a supplemental type of 

operation instead of a domestic type 

operation. To account for this fact and 

ensure that fatigue is limited to safe 

levels, the FAA has decided to set a 

single flight, duty, and rest standard for 

all part 121 certificate holders 

conducting passenger operations. The 

FAA is sympathetic to the fact that 

supplemental passenger operations 

require additional flexibility that is not 

required by other business models and 

as a result, may bear a disproportionate 

cost of this rule. To ameliorate the cost 

of this rulemaking on supplemental 

operations, this rule contains 

supplemental-friendly provisions and 

adjustments that do not have an adverse 

effect on safety. However, the flexibility 

and cost-savings required by 

supplemental passenger operations can 

no longer be used to justify 16 and 30- 

hour FDPs for these operations because 

scientific studies have shown that FDPs 

of this length significantly increase the 

risk of an aviation accident that could 

injure passengers onboard an aircraft. 

In response to NJASAP’s question, the 

FAA notes that this rule applies to all 

part 121 certificate holder passenger 

operations and all part 121 and part 91 

operations where an FDP includes at 

least one flight segment conducted 

under part 117. Thus, if a flightcrew 

member flies one or more segments of 

an FDP in passenger-carrying 

operations, but also flies a part 91 

positioning flight as part of that FDP, 

the part 91 flight would have to be 

conducted under part 117. Parts 135 and 

91K have their own set of flight, duty, 

and rest requirements that will continue 

to apply to those operations. 

B. Definitions 

The NPRM included definitions 

specific to this part. The definitions 

adopted in this rule are in addition to 

those in §§ 1.1 and 110.2. In the event 

that terms conflict, the definitions in 

part 117 control for purposes of the 

flight and duty regulations adopted in 

this rule. The section below provides a 

discussion of the specific definitions 

used in the final rule. 

1. Acclimated 

The FAA proposed to define 

‘‘acclimated’’ as a condition in which a 

flightcrew member has been in a theater 

for 72 hours or has been given at least 

36 consecutive hours free from duty. 

The Airline Pilots Association 

(ALPA), the Allied Pilots Association 

(APA), the Coalition of Airline Pilots 

Associations (CAPA), and the 

Independent Pilots Association (IPA) 

stated that acclimated should mean a 

condition in which a flightcrew member 

has been in a new theater for the first 

72 hours since arriving and has been 

given at least 36 consecutive hours free 

from duty during the 72 hour period. 

Also, the Flight Time Aviation 

Regulation Committee and Flightcrew 

Representatives (representing labor) 

(Flight Time ARC) supported the 

suggested, revised definition. These 

commenters noted that according to 

established science, three consecutive 

local nights’ rest is required to become 

acclimated. They also noted that Cap 

371 provides for three consecutive local 

nights rest to become acclimated. 

NACA, North American Airlines 

(NAA), World Airways, and Atlas Air 

Worldwide Holdings, Inc. (Atlas) 

contended that the proposed definition 

should be revised to allow 30 

consecutive hours free from duty 

instead of 36 hours. 

NACA and NAA said that it is 

important in regulations controlling 

both schedules and operations that the 

extended rest periods be consistent 

across domestic and international 

operations. NACA, NAA, and World 

Airways said that the FAA’s proposed 

acclimation time should be changed to 

reflect the agency’s proposed 168-hour 

look-back rest period of 30 hours. (See 

§ 117.25(b)). These commenters believed 

that 30 hours is appropriate because any 

further time to acclimate may preclude 

flightcrew members from returning to 

their home base as flightcrew members, 

which becomes important in 

commercial operations where flight 

hours are guaranteed. 

World Airways said that its 

recommendation of 30 hours free from 

duty is within the range the ARC 

discussed as sufficient for acclimation 

to occur. Atlas said that there is no 

scientific justification for selecting 36 as 

the minimum number of consecutive 

hours. Atlas further commented that 

subsequent to publication of the NPRM, 

the FAA clarified its definition of 

acclimated, stating that the computation 

is based on actual, not scheduled, 

operations. Atlas believed that this 

clarification needs to be incorporated 

into the definition as follows: ‘‘Time in 

theater begins upon block in at an 

airport more than four time zones from 

the previous acclimated location.’’ 

In response to the above comments, 

the FAA is not persuaded by the 

argument that acclimation only can 

occur when the flightcrew member is in 

a new theater for 72 hours and has been 

given 36 consecutive hours free from 

duty during that period. The Flight 

Time ARC did receive information from 

the sleep specialists that an individual 

attempting to acclimate to a new time 

zone will adjust his or her clock 

approximately one hour per day for 

each hour of time zone difference. 75 FR 

55852, 55861 (Sep. 14, 2010). The ARC, 

however, concluded that, based on its 

collective experience, acclimation can 


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occur more quickly if the flightcrew 

member manages the sleep opportunity 

appropriately. The ARC also concluded 

that a flightcrew member can become 

acclimated by either receiving three 

consecutive physiological nights’ rest or 

a layover rest period of 30 to 36 

consecutive hours. The ARC universally 

rejected the premise that, because the 

United Kingdom is 5 time zones away 

from the eastern coast of the United 

States, it would take between five and 

nine days to acclimate to a European 

time zone. The commenters did not 

present new information that was not 

considered during the ARC. There is no 

compelling information or argument 

that refutes the body of experience 

represented in the ARC and the FAA 

declines to amend this definition as 

suggested. 

The FAA also declines to accept the 

suggestion that a 30 hour rest period is 

adequate to acclimate compared to the 

36 hour period proposed in the NPRM. 

The ARC recommended a 30 to 36 hour 

layover rest period. The FAA decided to 

propose the 36-hour rest period because 

it provides for one physiological night’s 

rest and then opportunity for a shorter 

rest period. The agency finds that the 

more conservative approach is 

appropriate to provide the more 

meaningful opportunity for rest. 

United Parcel Service Co. (UPS) 

commented that administrative duties 

should be exempted or removed from 

the scope of flight duty when 

determining flightcrew member 

acclimation. UPS further commented 

that if flightcrew members revised 

company manuals or navigation charts 

during a duty free period (layover) or 

prior to report time, it is possible that 

the flightcrew members would not 

satisfy the definition of being 

acclimated or could drive different FDP 

limits based on when they claim their 

duties started. 

In response to UPS’ concern, to 

acclimate a flightcrew member under 

this rule, the certificate holder must 

provide the required rest and cannot 

assign any duties during the rest period. 

Similarly, it is the flightcrew member’s 

responsibility to take advantage of the 

period and rest accordingly. If a 

flightcrew member independently 

decides to perform administrative type 

duties during this time period, as 

described by the commenter, the 

flightcrew member is considered 

acclimated regardless of whether he or 

she actually rested during this time 

period. 

2. Acclimated Local Time 

While the FAA did not propose this 

term, ALPA, CAPA, Flight Time ARC, 

and the Southwest Airlines Pilots 

Association (SWAPA) suggested 

including this term. They suggested that 

acclimated local time means the local 

time at the location where the pilot last 

had greater than 36 hours free from duty 

in the first 72 hours in theater. IPA 

recommended the same definition, 

except it replaced the term ‘‘pilot’’ with 

‘‘flightcrew member.’’ In support of 

their recommendation, ALPA, CAPA, 

and Flight Time ARC said this new 

definition would provide an 

unambiguous time for applying the 

definition of ‘‘nighttime duty period’’ 

and for entering the FDP and flight time 

limit tables. They further said that the 

wording in the NPRM concerning 

acclimated or home base time left many 

questions of interpretation. For 

example, a USA-based pilot who 

acclimates in Europe and then 

subsequently flies to Japan would, 

under the current NPRM wording, enter 

the tables at home-base time instead of 

Europe time. The commenters also 

stated that the exact location of 

acclimation must be known to 

determine future loss of acclimation. 

Under their proposal, the commenters 

contended that both the tables and the 

definition of nighttime flight duty 

period would use the new term, 

‘‘acclimated local time.’’ 

The FAA has accommodated these 

concerns by changing the heading of 

Tables A, B, and C to reflect acclimated 

time. In addition, the FAA clarifies that 

a flightcrew member is considered 

acclimated based on which rest he or 

she was given first. If the flightcrew 

member completes 36 consecutive hours 

of rest prior to being in theater for 72 

hours, then the flightcrew member is 

acclimated at the time that the 36-hour 

period ends and he or she is acclimated 

at the location that the rest occurred. 

3. Airport/Standby Reserve 

According to the proposed definition, 

‘‘Airport/standby reserve’’ means a 

defined duty period during which a 

flightcrew member is required by a 

certificate holder to be at, or in close 

proximity to, an airport for a possible 

assignment. 

UPS said that the FAA’s definition of 

airport/standby reserve is too vague and 

is open to interpretation. It 

recommended revising the definition to 

mean an assignment that requires a 

flightcrew member to be in a position to 

begin preflight activities following 

notification of an assignment without 

requiring additional travel time to arrive 

for the operation. 

NACA and NAA did not believe that 

the definition is necessary because 

airport/standby reserve is an assignment 

within an FDP. If the term is adopted, 

NACA and NAA recommended that the 

term be defined as a duty period during 

which a flightcrew member is required 

by a certificate holder to be at, or in 

close proximity to, an airport for a 

possible assignment, and to show at the 

departure gate or aircraft within one 

hour. 

Atlas contended that the FAA did not 

clarify the relationship of airport/ 

standby reserve and short-call reserve in 

its clarification document published 

after the NPRM. This commenter noted 

that according to the FAA’s 

clarification, airport/standby reserve 

and short-call reserve are mutually 

exclusive. Atlas said that the distinction 

was explained as whether or not the 

flightcrew member is ‘‘at the airport or 

in close proximity to the airport.’’ If at 

or in close proximity to the airport, a 

flightcrew member is deemed to be on 

airport/standby reserve, this suggests 

that a flightcrew member on short-call 

reserve in a hotel room near an airport 

could be deemed to be on airport/ 

standby reserve. Atlas believed the 

distinction is important because it 

determines if the reserve is counted as 

part of the FDP. Atlas argued that 

airport/standby reserve means a defined 

duty period at an on-airport facility to 

which a flightcrew member has been 

required to report by a certificate holder 

immediately following assignment 

(usually within one hour) and at which 

no rest facilities are available or no rest 

is scheduled. 

The FAA agrees that the proposed 

terminology could be confusing and has 

modified the term to mean a duty period 

during which a flightcrew member is 

required by a certificate holder to be at 

an airport for possible assignment. 

4. Augmented Flightcrew 

The NPRM defined ‘‘augmented 

flightcrew’’ as a flightcrew that has more 

than the minimum number of flightcrew 

members required by the airplane type 

certificate to operate the aircraft to allow 

a flightcrew member to be replaced by 

another qualified flightcrew member for 

in-flight rest. 

A number of industry commenters 

objected to the fact that the proposed 

augmented flightcrew definition did not 

allow a flight engineer to augment a 

pilot. These commenters stated that 

adding a flight engineer to a flightcrew 

has a number of safety benefits. The 

commenters added that their inability to 

augment with a flight engineer would 

result in three-seat aircraft being retired 

prematurely, which would raise the 

costs of this rule. 

This rule does not allow 

augmentation with a flight engineer for 


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safety reasons. As discussed more fully 

in other parts of this preamble, an 

augmented flight provides fatiguemitigation benefits because it contains 

more than the minimum number of 

pilots, and the additional pilots allow 

the flightcrew to obtain in-flight rest by 

working in shifts and replacing each 

other at the aircraft controls. However, 

a flight engineer is not qualified to 

manipulate the flight controls and pilot 

an aircraft and is generally prohibited 

from occupying a pilot duty station. 

Because a flight engineer who is not 

qualified as a pilot cannot occupy a 

pilot duty station, an engineer cannot 

replace a pilot at the aircraft controls. 

As such, this rule does not allow a pilot 

to be augmented with a flight engineer. 

With regard to three-seat aircraft, even 

though this rule does not give 

augmentation credit for a flight engineer 

to augment a pilot, it does not prohibit 

flight engineers from working on threeseat aircraft. All this rule states is that, 

without additional pilots, a flightcrew 

that has a flight engineer would not be 

considered augmented. Because a flight 

engineer could still work on a three-seat 

aircraft under the terms of this rule, the 

FAA does not believe that the above 

limitation on augmentation would lead 

to the premature retirement of three-seat 

aircraft. 

5. Calendar Day 

The NPRM proposed that a ‘‘calendar 

day’’ means a 24-hour period from 0000 

through 2359. 

Alaska Airlines said that while the 

FAA contends in its clarifying 

document that the calendar day for the 

flightcrew member’s home base should 

be sufficient, calendar day as defined in 

the NPRM does not provide this 

clarification. Alaska Airlines instead 

recommended that a calendar day 

means a 24-hour period from 0000 

through 2359 local time at the 

flightcrew member’s home base. 

Boeing Commercial Airplanes 

(Boeing) suggested a similar definition 

to address frequent transitions between 

time zones. Boeing further stated that 

rules such as the ones proposed in the 

NPRM are implemented in 

computerized optimization systems for 

crew scheduling, and as a result, 

ambiguities in the rules can lead to 

different interpretations. 

The FAA has amended this term to 

include reference to Coordinated 

Universal Time or local time. This is 

consistent with the definition of 

calendar day in section 121.467(a) 

(Flight attendant duty period limitations 

and rest requirements: Domestic, flag, 

and supplemental operations). 

6. Consecutive Night Duty Period 

The FAA did not propose a definition 

for this term; ALPA, CAPA, SWAPA, 

Flight Time ARC, and Federal Express 

Air Line Pilots Association, 

International (FedEx ALPA) said that 

the proposed § 117.27 limits 

consecutive nighttime flight duty 

periods to three periods. To avoid 

confusion in applying § 117.27, the 

commenters believed that the term 

‘‘consecutive night duty period’’ should 

be defined. They recommended that 

consecutive night duty period mean two 

or more night flight duty periods that 

are not separated by at least a part 

§ 117.25 rest between the duty periods 

that encompasses a physiological night’s 

sleep (1 a.m. to 7 a.m. at home base or 

acclimated local time). IPA suggested 

the adoption of a similar definition. 

The FAA declines defining the term 

consecutive night flight duty period and 

instead includes a provision in § 117.27 

to address the commenters’ concerns. 

Section 117.27 now specifies that the 

consecutive-night provisions apply to 

consecutive flight duty periods that 

infringe on the WOCL. The WOCL is 

defined later in this section. 

7. Deadhead Transportation 

As proposed, ‘‘deadhead 

transportation’’ means transportation of 

a flightcrew member as a passenger, by 

air or surface transportation, as required 

by a certificate holder, excluding 

transportation to or from a suitable 

accommodation. 

Air Transport Association of America, 

Inc. (ATA) suggested removing the word 

‘‘passenger’’ from the definition because 

the FAA should not assume that 

deadhead transportation should be 

limited to flightcrew members 

characterized as passengers when not all 

carriers carry passengers. Similarly, UPS 

commented that the proposed definition 

fails to address deadhead transportation 

on aircraft not configured for passenger 

operations (i.e., all-cargo aircraft). UPS 

suggested that the FAA revise the 

definition as follows: ‘‘Deadhead 

transportation means transportation of a 

flightcrew member as a passenger, nonassigned flight deck occupant, or other 

additional flightcrew member by air or 

surface transportation, as required by 

the certificate holder, excluding 

transportation to or from a suitable 

accommodation.’’ 

The FAA agrees with the above 

commenters and has modified the term 

to apply to the transportation of a 

flightcrew member as a passenger or a 

non-operating flightcrew member. The 

FAA has also added two clarifying 

statements to the definition. The first is 

that all time spent in deadhead 

transportation is duty and is not rest. 

This provision was copied from 

proposed § 117.29 Deadhead 

transportation. Secondly, the FAA 

includes in this definition that 

deadhead transportation is not 

considered a segment for purposes of 

determining the maximum flight duty 

period in Table B. 

8. Duty 

The NPRM defines ‘‘duty’’ to mean 

any task, other than long-call reserve, 

that a flightcrew member performs on 

behalf of the certificate holder, 

including but not limited to airport/ 

standby reserve, short-call reserve, flight 

duty, pre-and post-flight duties, 

administrative work, training, deadhead 

transportation, aircraft positioning on 

the ground, aircraft loading, and aircraft 

servicing. 

Industry commenters largely rejected 

the proposition that short-call reserve be 

considered duty. They argued that this 

classification is inappropriate and 

unrelated to effective fatigue mitigation. 

They also stated that the only 

requirement or company task a pilot has 

on short call reserve is to be available 

to be contacted. Otherwise, the pilot is 

free to do what he or she wants and 

plans the day to take advantage of rest 

opportunities or any other activities as 

he or she desires, just as a lineholder 

would. Industry also largely objected to 

the classification of short-call reserve as 

duty. ALPA, CAPA, FedEx ALPA, 

SWAPA and APA all commented 

favorably on short call reserve being 

considered duty. 

As stated in the NPRM, the FAA’s 

rationale for this proposal was that 

while on short-call reserve, the 

flightcrew member can expect that he or 

she will not receive an opportunity to 

rest prior to commencing an FDP. 

Additionally, the flightcrew member is 

required to limit his or her action 

sufficiently so that he or she can report 

to the duty station within a fairly short 

timeframe. The FAA believed that this 

time should be accounted for under the 

cumulative limitations and therefore 

proposed that short-call reserve be 

considered duty. 

However, the commenters argued that 

a flightcrew member on short-call 

reserve has the same predictable rest 

and sleep opportunities as a regularlyscheduled lineholder and that being on 

reserve cannot entail significant 

workload and thereby be fatiguing. The 

FAA accepts that while reserve cannot 

be categorized as ‘‘rest’’ it does not 

necessarily fit squarely with being 

considered duty either. As the 

commenters correctly pointed out, time 


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spent on short-call reserve is simply not 

as fatiguing as time spent on an FDP. 

Therefore, this rule no longer includes 

short-call reserve as duty. 

ATA, NACA, UPS, United, 

Continental Airlines, Inc. (Continental), 

Alaska Airlines, NAA, Delta Air Lines 

(Delta), and World Airways stated that 

the proposed definition of duty is too 

broad, operationally unworkable, and 

not clear regarding accountability. They 

objected to the inclusion of the terms 

‘‘any task,’’ ‘‘on behalf of the certificate 

holder,’’ and ‘‘administrative work’’ in 

the definition. ATA provided the 

example of a professional pilot who 

routinely performs tasks such as 

refreshing outdated publications, 

watching videos for recurrent training, 

and reading and responding to emails. 

Because a flightcrew member can 

perform these tasks at a time and place 

of his or her choosing, the commenters 

argued that a certificate holder has no 

way of knowing or controlling the 

pertinent flightcrew member conduct. 

ATA asserted that the inclusion of 

administrative but not labor-related 

work in the definition does not make 

sense because no material distinction 

exists between administrative tasks 

performed on behalf of management and 

similar tasks performed on behalf of 

labor. 

Alaska Airlines said that the FAA in 

its clarifying document noted that the 

term ‘‘administrative work’’ is readily 

understandable; however, the 

commenter noted that the term’s role in 

fatigue and in the context of the 

regulation is vague. The commenter 

believed that the term needs further 

clarification and should only include 

work associated with flight operations. 

Continental and United said that the 

definition of duty considers 

administrative work in the same way 

that it assesses flight duty. They 

contend that this is inappropriate when 

applied to the cumulative duty 

restrictions discussed in proposed 

§ 117.23. 

Alaska Airlines suggested that the 

FAA make clear in the final rule that 

duty only includes activities that the 

carrier can directly control. ATA 

recommended clarifying the definition 

by replacing the phrase ‘‘on behalf of 

the certificate holder’’ with ‘‘directed by 

a certificate holder on company 

property.’’ NACA, UPS, Delta, and 

World Airways suggested revising the 

definition of duty to mean ‘‘any task, 

other than long-call and short-call 

reserve, that is directed by the certificate 

holder * * *’’ NAA believed the term 

‘‘on behalf of the certificate holder’’ 

should be replaced with ‘‘is assigned by 

the certificate holder.’’ 

UPS contended that the FAA must 

address the issue of management pilot 

duty and suggested that management 

pilot duty include all time spent during 

company business-related meetings and 

other business-related activity 

conducted on company property. UPS 

argued that if this is not addressed, 

management pilots will effectively 

become non-flying pilots. 

NACA, World Airways, and NAA 

recommend deleting the term 

‘‘administrative work’’ because it is too 

vague and inclusive of issues that have 

nothing to do with direction by the 

certificate holder or FDP fatigue 

mitigation. Continental and United 

recommended that the FAA remove 

administrative activity from the 

definition and add a provision to the 

regulation that applies administrative 

duty to specific FDPs. ATA and Delta 

request that if the term is kept in the 

definition, the FAA should clarify that 

the definition treats management and 

labor-related administrative work in the 

same way. 

In response to the above comments, 

the definition of duty has been further 

modified by replacing ‘‘on behalf’’ of the 

certificate holder with ‘‘as required’’ by 

the certificate holder. This addresses the 

certificate holders’ concern that the 

administrative work accomplished by 

the flightcrew member is work that he 

or she is required to do, and 

appropriately included as duty. Lastly, 

the FAA agrees that performance of 

administrative management work is not 

distinguishable from any other type of 

administrative work, and therefore 

administrative management work is 

included in the term ‘‘administrative 

work’’ under this definition. 

9. Duty Period 

As proposed, ‘‘duty period’’ means a 

period that begins when a certificate 

holder requires a flightcrew member to 

report for duty and ends when that crew 

member is free from all duties. 

UPS said that defining the end of the 

duty period as ‘‘* * * free from all 

duties’’ is too ambiguous and uncertain 

since a certificate holder cannot control 

voluntary duties that a flightcrew 

member may decide to accomplish at 

the end of his or her FDP. UPS 

suggested that the definition be changed 

so that the end of the duty period occurs 

when the flightcrew member is ‘‘* * * 

released from all company directed 

duties.’’ In light of the changes that have 

been made to this rule, the FAA has 

determined that it is no longer necessary 

to define this term, and therefore the 

proposed definition is withdrawn. 

10. Early Start Duty 

The NPRM did not propose a 

definition for this term, however, APA 

recommended including the term, 

which would mean an FDP that 

commences in the period 0500 to 0659 

home base time or where acclimated. 

The FAA does not agree that adopting 

this term is necessary or useful. 

11. Fatigue 

Fatigue as proposed means 

physiological state of reduced mental or 

physical performance capability 

resulting from lack of sleep or increased 

physical activity that can reduce a 

flightcrew member’s alertness and 

ability to safely operate an aircraft or 

perform safety-related duties. 

ATA commented that the proposed 

definition of fatigue is inconsistent with 

ICAO’s proposed definition. ATA noted 

that ICAO proposes to define fatigue as 

‘‘a physiological state of reduced mental 

or physical performance capability 

resulting from sleep loss or extended 

wakefulness, circadian phase, or 

workload (mental and/or physical 

activity) that can impair a crew 

member’s alertness and ability to safely 

operate an aircraft or perform safety 

related duties.’’ ATA recommended 

adopting the ICAO definition because it 

captures the fatigue-inducing effects of 

the interaction of sleep loss, circadian 

phase, and workload, and provides a 

scientific basis for fatigue risk 

management. 

In response to ATA’s comments, the 

FAA notes that ICAO has not finalized 

its definition of fatigue, and the 

proposed definition may be subject to 

change. At this point, it is not prudent 

for the FAA to include a term that 

ultimately may be changed or not even 

adopted. Therefore, the FAA is adopting 

the definition of fatigue that was 

proposed. 

12. Fit for Duty 

As proposed, the definition of ‘‘fit for 

duty’’ means physiologically and 

mentally prepared and capable of 

performing assigned duties in flight 

with the highest degree of safety. 

UPS commented that including 

‘‘* * * duties in flight with the highest 

degree of safety’’ in the definition of ‘‘fit 

for duty’’ is not practical and too 

subjective. UPS further stated that it is 

unrealistic for any human to be at their 

‘‘highest’’ level of performance during 

every possible FDP and suggests 

replacing ‘‘* * * highest degree of 

safety’’ with ‘‘* * * capable of 

performing duties that assure flight 

safety.’’ 

The FAA does not agree with UPS 

because every flightcrew member on 


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every flight should be prepared and 

capable of performing the assigned 

duties at the highest degree of safety. 

Accordingly, the FAA has adopted the 

proposed definition in the final rule. 

13. Flight Duty Period 

The NPRM defines ‘‘flight duty 

period’’ to mean a period that begins 

when a flightcrew member is required to 

report for duty with the intention of 

conducting a flight, a series of flights, or 

positioning or ferrying flights, and ends 

when the aircraft is parked after the last 

flight and there is no intention for 

further aircraft movement by the same 

flightcrew member. A flight duty period 

would include deadhead transportation 

before a flight segment without an 

intervening required rest period, 

training conducted in an aircraft, flight 

simulator or flight training device, and 

airport/standby reserve. 

ATA, UPS, World Airways, NAA, 

NACA, Delta, and Alaska Airlines 

objected to including all flight training 

in a flight simulator or training device 

in the definition of FDP. ATA, Delta, 

and Alaska Airlines commented that 

there is no scientific basis for such 

inclusion, and all seven commenters 

said there is no inherent safety basis for 

this decision. Alaska Airlines and Delta 

added that with simulator time included 

in the FDP, pursuant to section 117.27, 

flightcrew members would be unable to 

participate in simulator training on 

more than three consecutive nights. 

ATA further commented that there is no 

basis for including travel to a training 

site in the FDP unless the travel occurs 

before flight time. 

ATA, Delta, and Alaska Airlines 

recommended that the FAA revise the 

proposed definition to state that only 

training and flight simulator time 

conducted before a flight without an 

intervening rest period is counted as 

part of the FDP. UPS said that it 

supports counting time spent in a 

simulator or flight training device as 

part of an FDP only if this time 

immediately precedes flight duty 

without an intervening rest period. UPS 

believed that there is an unintended 

consequence of treating simulator and 

flight training device training as part of 

an FDP, regardless of when the training 

occurs. That is, the practice of providing 

additional training to a flightcrew 

member who requests that training will 

be discontinued; thereby, affecting flight 

safety. 

NACA, NAA and World Airways 

commented that an FDP ‘‘must involve 

a flight, or at a minimum, movement of 

an aircraft where the public is at risk 

where an aircraft accident potential 

immediately exists.’’ They suggested 

revising the proposed definition to add 

the following phrases: ‘‘but not limited 

to’’ and ‘‘whenever these duties are 

performed in conjunction with duties 

involving flight without an intervening 

rest period.’’ This would result in a 

definition that reads: ‘‘* * * A flight 

duty period includes, but is not limited 

to, deadhead transportation * * * and 

airport/standby reserve whenever these 

duties are performed in conjunction 

with duties involving flight without an 

intervening rest period.’’ 

The FAA clarifies that an FDP begins 

when the flightcrew member reports for 

duty and will include the duties 

performed by the flightcrew member on 

behalf of the certificate holder that 

occur before a flight segment or between 

flight segments without a required 

intervening rest period. The FDP ends 

when the aircraft is parked after the last 

flight and there is no intention for 

further aircraft movement by the same 

flightcrew member. Included in the FDP 

are any of the following actions if they 

occur before a flight segment or between 

flight segments without an intervening 

rest period: deadhead transportation, 

training conducted in an aircraft or 

flight simulator, and airport/standby 

reserve. Time spent in a flight training 

device that takes place after the aircraft 

has been parked after the last flight has 

been eliminated from this definition. 

For purposes of calculating the 

pertinent part 121 flight, duty, and rest 

limits, the FAA considers time spent on 

an FDP to be duty. 

14. Flight Time 

The NPRM did not propose a 

definition for this term; however, APA, 

ALPA, CAPA, FedEx ALPA, SWAPA, 

and Flight Time ARC recommended 

adding a definition for flight time to 

begin when the aircraft first moves with 

the intention of flight. These 

commenters argued that this term in 

§ 1.1 is defined as the moment the 

aircraft first moves under its own 

power. However, the pilot in command 

(PIC) and required flight deck flightcrew 

members are always responsible and 

must perform their duties when the 

aircraft is moved by a tug or sits on a 

hardstand and that time should count, 

according to the commenters, as flight 

time if the movement is with the 

intention for flight. They also state that 

this definition would be consistent with 

Annex II, Subpart Q to the Commission 

of the European Communities 

Regulation No. 3922/91, as Amended 

(EU OPS subpart Q) which defines flight 

time as the time between an airplane 

first moving from its parking place for 

the purpose of taking off until it comes 

to rest on the designated parking 

position and all engines or propellers 

are stopped. 

IPA suggested that the proposed 

definition be revised as follows: ‘‘Flight 

time means when the aircraft first 

moves with the intention of flight until 

it comes to rest on the designated 

parking position.’’ 

The FAA declines the commenters’ 

recommendations. Numerous other 

regulations are based on the definition 

of flight time that is set out in § 1.1. 

Changing this term solely in the context 

of the flight and duty regulations would 

make this rule more complicated than 

necessary and create confusion between 

this rule and other regulations. 

15. Late Finish Duty 

The NPRM did not propose a 

definition for this term; however, APA 

said a definition of ‘‘late finish duty’’ is 

needed to provide for fatigue mitigation 

caused by consecutive early starts and 

late finishes. APA suggested that the 

term be defined as an FDP that ends 

during the period of 0000–0159, home 

base time or where acclimated. The 

FAA does not find that it is necessary 

or useful to adopt this term. 

16. Night and Nighttime 

The FAA did not propose definitions 

for either of these terms; however, 

NACA and NAA said that the FAA’s 

intent for using the term ‘‘night’’ in the 

NPRM should be defined. If it is not 

defined, the commenters said that the 

FAA should always use the term 

‘‘physiological night’’ in all text in the 

preamble and in the final rule. They 

recommended defining night to mean 

‘‘the period between 0100 and 0700 at 

the flightcrew member’s designated 

home base or acclimated location.’’ The 

commenters noted that this would make 

the term compatible with the definition 

of ‘‘physiological night’s rest.’’ 

Atlas said that the final rule should 

contain a definition of the terms ‘‘night’’ 

and ‘‘nighttime,’’ so as to make the 

meanings comparable to references in 

proposed § 117.27, as well as to the 

definition of ‘‘physiological night’s 

rest.’’ It noted that while ‘‘physiological 

night’s rest’’ refers to the hours of 0100 

and 0700, the term ‘‘nighttime’’ 

referenced in proposed § 117.27 is 

interpreted to refer to operations that 

commence between 2200 and 0500, 

according to page 22 of the FAA’s 

clarification document. Both 

definitions, the commenter said, differ 

from the definition of ‘‘night’’ in 14 

CFR. § 1.1, which is the time between 

the end of evening civil twilight and the 

beginning of morning civil twilight, as 

published in the American Air 

Almanac, converted to local time. 


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The FAA declines to adopt these 

terms. The FAA uses the word 

‘‘physiological night’s rest’’ when it is 

appropriate. In addition, please refer to 

the FAA’s response to the term 

‘‘Consecutive Night Duty Period.’’ 

17. Nighttime Flight Duty Period 

The FAA did not propose a definition 

for this term; however, APA, ALPA, 

CAPA, FedEx ALPA, SWAPA, and 

Flight Time ARC said that to avoid 

confusion when conducting consecutive 

nighttime operations under § 117.27, the 

FAA should define ‘‘nighttime flight 

duty.’’ They suggested that this term be 

defined to mean a duty period during 

which any part of the duty period falls 

within the home base or acclimated 

local time period of 0200 to 0459. 

IPA suggested a definition of 

‘‘nighttime flight duty’’ as follows: ‘‘a 

duty period during which any part of 

the duty period falls within the home 

base or acclimated local time period of 

0200 to 0459.’’ 

Please see response to ‘‘6. Consecutive 

Night Duty Period.’’ The FAA does not 

find it necessary to define the term as 

suggested. 

18. Nighttime Operations 

ATA said that the FAA should add a 

new definition of nighttime operations 

for purposes of part 117 to be consistent 

with the agency’s document that 

responds to clarifying questions to the 

NPRM. The commenter believed that 

the definition should include operations 

that commence between 10 p.m. and 5 

a.m. The FAA has clarified the pertinent 

provisions of section 117.27, and as 

such, it finds that a separate definition 

for nighttime operations is unnecessary. 

19. Report Time 

The NPRM defined ‘‘report time’’ as 

the time that the certificate holder 

requires a flightcrew member to report 

for a duty period. The FAA did not 

receive any comments with regard to 

this definition, and as such, this rule 

adopts the proposed definition. 

20. Reserve Availability Period 

The NPRM defined ‘‘reserve 

availability period’’ to mean a duty 

period during which a certificate holder 

requires a reserve flightcrew member on 

short call reserve to be available to 

receive an assignment for a flight duty 

period. 

NACA objected to the premise that 

short call reserve is duty. It noted that 

ARC discussions were clear that short 

call reserve, which is a period of time 

when the only responsibility the crew 

member has is to answer the phone, is 

not a fatiguing event, and thus, it should 

not constitute duty for cumulative-duty 

purposes. NACA suggested revising the 

proposed definition so that it reads 

‘‘reserve availability period means a 

period of time during which a certificate 

holder requires a reserve flightcrew 

member on short call reserve to be 

available to receive an assignment for a 

flight duty period.’’ 

As discussed in other portions of this 

preamble, cumulative-duty-period 

limits have been removed from this rule. 

This removal addresses the concern 

expressed in NACA’s comment as shortcall reserve is no longer subject to the 

cumulative-duty-period limits. 

21. Reserve Duty Period 

The NPRM defined ‘‘reserve duty 

period’’ as the time, applicable only to 

short call reserve, from the beginning of 

the reserve availability period to the end 

of an assigned flight duty period. In 

light of the changes that were made to 

the reserve status section, this definition 

is no longer necessary, and it has been 

removed from the final rule. 

22. Reserve Flightcrew Member 

The NPRM defined ‘‘reserve 

flightcrew member’’ as a flightcrew 

member who a certificate holder 

requires to be available to receive an 

assignment for duty. The FAA did not 

receive any comments with regard to 

this definition, and as such, this rule 

adopts the proposed definition. 

23. Rest Facility 

The NPRM defines ‘‘rest facility’’ as a 

bunk, seat, room or other 

accommodation that provides a 

flightcrew member with a sleep 

opportunity. In determining what 

constitutes each specific type of rest 

facility, the FAA took note of a 

comprehensive evaluation of available 

onboard rest facilities, which was 

conducted by the Dutch government in 

2007. Simons M, Spencer M., Extension 

of Flying Duty Period By In-Flight Relief. 

Report TNO–DV2007C362. TNO, 

Soesterberg, Netherlands, 2007 (TNO 

Report). The TNO Report was created in 

order to provide science-based advice 

on the maximum permissible extension 

of the FDP related to the quality of the 

available onboard rest facility and the 

augmentation of the flightcrew with one 

or two pilots. 

As defined in the NPRM, ‘‘Class 1 rest 

facility’’ means a bunk or other surface 

that allows for a flat sleeping position 

and is located separate from both the 

flight deck and passenger cabin in an 

area that is temperature-controlled, 

allows the flightcrew member to control 

light, and provides isolation from noise 

and disturbance. ‘‘Class 2 rest facility’’ 

means a seat in an aircraft cabin that 

allows for a flat or near flat sleeping 

position; is separated from passengers 

by a minimum of a curtain to provide 

darkness and some sound mitigation; 

and is reasonably free from disturbance 

by passengers or flightcrew members. 

‘‘Class 3 rest facility’’ means a seat in an 

aircraft cabin or flight deck that reclines 

at least 40 degrees and provides leg and 

foot support. 

ATA stated that the proposed rule 

was overly restrictive with respect to the 

facilities it deemed sufficient for 

conferring credit for in-flight rest on 

augmented flights. ATA, NACA, and 

UPS criticized the proposal for overrelying on the TNO Report. ATA and 

UPS emphasized that the TNO Report is 

only a single study that has not been 

adopted by any regulatory body. NACA 

asserted that ‘‘the TNO report is more 

than 10 years old and was proposed by 

a limited number of scientists and based 

upon limited studies.’’ NACA added 

that ‘‘[i]n the ARC discussions, Dr. 

Hursh stated that his [SAFTE/FAST] 

models value sleep on a bunk at 

approximately 66 to 80 percent of 

normal sleep.’’ APA stated that the TNO 

Report has not been validated in the 

aviation context. 

ATA stated that the proposed rule’s 

adoption of the TNO report would have 

substantial adverse impacts on U.S. 

carriers because it would deviate from 

the less-restrictive criteria for rest 

facilities that the FAA set out in 

Advisory Circular (AC) 121–31. This is 

because, ATA asserted, many air 

carriers have invested a substantial 

amount of money developing rest 

facilities that comply with the 

guidelines set out in AC 121–31, and 

these facilities would not satisfy the 

more stringent criteria for rest facilities 

set out in the TNO Report. ATA noted 

that although it supports the concept of 

credit for in-flight rest, it does not 

support rest facility criteria derived 

from the TNO Report. It further noted 

that ‘‘the FAA should continue to accept 

AC 121–31 standards for all aircraft 

built prior to the imposition of the new 

rule, the use of current business class 

seats as Class 2 facilities and for credit 

being afforded to all-cargo aircraft that 

provide a ‘horizontal sleep opportunity’ 

to flightcrew members. Rest facilities in 

use today built to AC 121–31 standards 

are operationally validated as a means 

of fatigue mitigation that FAA has 

accepted and there is no evidence that 

such facilities should not be used in the 

future.’’ To minimize costs, ATA 

recommended that ‘‘[a]t a minimum, the 

guidance in AC 121–31 should remain 

in effect for all aircraft built prior to the 

implementation date of the NPRM and 


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a significant period allowed for newer 

aircraft to conform to any new 

standards.’’ 

UPS added that most air-cargo carriers 

would be unable to install rest facilities 

needed for the augmentation credit 

because air-cargo aircraft do not have 

passenger cabins. UPS asserted that it 

would be unable to install the rest 

facilities required by this rule in 

approximately 18% of its total fleet. 

The existing advisory circular that 

provides guidance for onboard rest 

facilities (AC 121–31) was written in 

1994 based on the science that existed 

at that time. The TNO Report, on the 

other hand, was written in 2007, and it 

provides the most comprehensive 

evaluation available to date of onboard 

rest facilities. This report may not yet 

have been adopted by other regulatory 

bodies because it is only four years old, 

and significant regulatory changes 

usually take place over a longer period 

of time. When drafting this rule, the 

FAA found the TNO Report to be more 

persuasive than AC 121–31 because the 

TNO Report performed a comprehensive 

evaluation of rest facilities, and because 

it was based on more recent scientific 

data than AC 121–31. 

The FAA understands that the TNO 

Report provides more conservative 

conclusions than the pertinent SAFTE/ 

FAST data concerning onboard rest 

facilities. However, in response to 

comments discussed above, the FAA 

has increased the augmented FDP limits 

in Table C. This increase should more 

accurately reflect the results of the 

SAFTE/FAST modeling for augmented 

operations. 

The FAA has considered the fact that 

basing the definition of rest facilities on 

the TNO Report may pose hardships for 

air carriers who currently rely on AC 

121–31 for guidance about onboard rest 

facilities. To mitigate this hardship, as 

well as for a number of other 

considerations, the FAA has decided to 

make the effective date of this rule two 

years from publication. This two-year 

window will provide air carriers with 

time to phase out their current onboard 

rest facilities and install/upgrade 

onboard rest facilities that comply with 

the provisions of this rule. 

APA, FedEx ALPA, SWAPA, CAPA, 

and Flight Time ARC said that the 

definition of ‘‘rest facility’’ should 

include the following clarification: ‘‘A 

rest facility on an aircraft shall only be 

used for in-flight rest opportunities.’’ 

The commenters said this statement will 

eliminate any temptation to have crews 

obtaining their part § 117.25 or part 

§ 117.17 rest on the aircraft when it is 

on the ramp. Several of these 

commenters noted that a bunk or seat on 

an aircraft is not a suitable rest facility 

on the ground. APA further 

recommended that the FAA separate the 

definitions of an ‘‘in-flight, onboard rest 

facility’’ and a ‘‘ground-based rest 

facility’’ and clearly differentiate 

between a ground-based rest facility and 

a suitable accommodation. 

The FAA agrees with the above 

commenters that rest in a rest facility 

should take place while an aircraft is inflight. That is why the augmented FDP 

section, section 117.17, to which the 

rest-facilities definition applies, 

mandates that the required minimum 

augmentation rest take place in-flight. 

Because section 117.17 already requires 

that the minimum augmentation rest 

take place in-flight, there is no need to 

further amend the pertinent regulatory 

text. 

Turning to APA’s request for 

clarification concerning the distinction 

between onboard and ground-based rest 

facilities, the FAA notes that a rest 

facility is a facility that is installed in an 

aircraft. A suitable accommodation, on 

the other hand, is a ground-based 

facility. The FAA has amended the 

pertinent definitions to clarify this 

distinction between a suitable 

accommodation and a rest facility. 

APA also stated that detailed 

minimum standards should be spelled 

out in regulatory requirements. At a 

minimum, the language in the Class 1 

facility definition should be improved 

to indicate that other surfaces that allow 

for a flat sleeping position should be 

suitably padded and reasonably 

comfortable and suitable for sleeping. 

APA noted that the ARC’s discussions 

described ground-based facilities 

primarily as bunkrooms and the like 

used by cargo carriers to provide rest 

during a package sort operation. APA 

urged the FAA to adopt the detailed 

recommendations regarding onboard 

rest facility requirements set out in the 

appendix included in its comment 

submission. APA added that it remains 

concerned that if such specifications are 

left to Advisory Circulars, and if 

important details are not followed, inflight rest could be seriously 

compromised. Additionally, it noted 

that several studies have commented on 

sleep problems caused by low humidity 

or an improper temperature, but the 

FAA did not mention these factors nor 

list any requirement for them. APA 

suggested that a Class 1 rest facility 

should account for low humidity and 

improper temperatures. 

Delta expressed concern with the 

following description of a Class 2 

facility that, it said, is contained both in 

the preface and in Advisory Circular 

121–31A: A Class 2 rest facility is ‘‘a 

seat in an aircraft cabin that allows for 

a flat or near flat sleeping position 

(around 80 degrees from the seat’s 

vertical centerline).’’ Delta said that 

many U.S. carriers currently providing 

on board rest facilities on routes for 

which Class 2 seats would be used are 

using a passenger business class type 

seat, some of which have been slightly 

modified or enhanced. The commenter 

further noted that these types of 

facilities have been in use for many 

years mostly on flights governed by 14 

CFR 121.483. According to Delta, the 

ARC discussed this issue and 

acknowledged that these existing seats 

have worked very well. Delta asserted 

that most of these seats do not recline 

to the 80 degree range nor is it known 

yet if it is feasible to modify them for 

this capability. Delta believed that 

business class type seats currently being 

used are more than adequate to allow 

for in-flight rest. 

UPS and NACA said that the 

definition of a Class 2 rest facility fails 

to address rest facilities on aircraft 

configured without a passenger cabin 

(i.e., all-cargo aircraft). UPS suggested 

that the definition should read: ‘‘In an 

aircraft configured with a passenger 

cabin, Class 2 rest facility means a seat 

that allows for a flat or near flat sleeping 

position and is separated from 

passengers by a minimum of a curtain 

to provide darkness and some sound 

mitigation, and is reasonably free from 

disturbance by passengers or in-flight 

flightcrew members. In an aircraft not 

configured with a passenger cabin, Class 

2 rest facility means a seat that allows 

for a flat or near flat sleeping position.’’ 

In response to these comments, the 

FAA notes that, as discussed above, the 

specific requirements for rest facilities 

were derived from the TNO Report, 

which analyzed how much rest would 

be obtained from each rest facility that 

complied with those requirements. 

Because various air carriers currently 

utilize different types of rest facilities, 

the FAA has determined that adding to 

the TNO Report’s minimum rest-facility 

requirements would require more air 

carriers to replace their existing rest 

facilities without a demonstrated safety 

benefit to justify this cost. Accordingly, 

the FAA declines to add additional 

requirements to the rest-facility 

requirements set out in the NPRM. 

The FAA has also decided not to 

expand the definition of a Class 2 rest 

facility beyond the recommendations of 

the TNO Report. The FAA is open to the 

possibility of expanding the definition 

of a Class 2 rest facility if additional 

data is provided as part of an FRMS, 

and if expanding this definition would 

not adversely affect safety. In response 


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19TNO Report at 17. 

20 Id. at 18. 

to UPS and NACA’s concerns, the FAA 

has changed the phrase ‘‘passenger 

cabin’’ to ‘‘aircraft cabin’’ in the restfacility definition in order to include 

rest facilities on aircraft without a 

passenger cabin. 

A number of industry groups and air 

carriers also objected to the fact that the 

NPRM did not consider economy-class 

seats to be a rest facility. These 

commenters stated that, in their 

operational experience, economy-class 

seats provided flightcrew members with 

significant amounts of restful sleep. The 

commenters cited a number of studies 

that, they claimed, indicate that an 

economy-class seat can provide restful 

sleep. 

The decision to not consider an 

economy-class seat to be a rest facility 

was based on the TNO Report, which 

determined that ‘‘the probability of 

obtaining recuperative sleep in such a 

seat would be minimal.’’ 19 The TNO 

Report’s determination was based on the 

following considerations: (1) An 

economy-class seat does not recline 

more than 40 degrees ‘‘and has no 

opportunities for adequate foot and leg 

rest, which diminishes the probability 

of recuperative sleep;’’ (2) ‘‘space 

around the seat is not sufficient to create 

an adequate separation from the 

passengers (jostle in economy class), or 

guarantee any privacy;’’ and (3) ‘‘a 

majority of passengers are unable to 

sleep at all in an economy seat. With the 

help of sleeping aids or alcohol, some 

passengers succeed in obtaining some 

sleep, but they often feel a general 

malaise after sleeping in a cramped 

position.’’ 20 The FAA agrees with the 

TNO Report’s analysis of economy-class 

seats, and based on this analysis, which 

states that economy-class seats provide 

minimal amounts of recuperative sleep, 

the FAA has determined that economyclass seats should not be considered a 

rest facility in this rule. 

Delta stated that it is unclear why the 

FAA is concerned with keeping crew 

rest facilities out of the coach or 

economy section of the aircraft. Delta 

believes that if the seat meets the NPRM 

definition requirements and the 

specifications provided in AC 121–3A 

(now AC 117–1), the geographical 

location of the rest facility on the 

aircraft should be immaterial. Delta 

further noted that it attempted to locate 

a scientific or an operational basis for 

the exclusionary requirement and has 

been unable to find any; therefore, Delta 

believes this is an unjustified constraint 

and should be removed. 

As discussed in the preceding 

response, one of the reasons why an 

economy-class seat does not provide 

restful sleep is that space around the 

seat is not sufficient to create an 

adequate separation from the passengers 

(economy jostling). Because there are 

substantially more passengers in the 

economy section of an aircraft, that 

section is generally noisier and has 

more densely-packed people than the 

other sections of the aircraft. In 

addition, the FAA notes that economy 

cabins are generally located behind the 

aircraft engines, and thus, have to deal 

with louder engine noise. Due to all of 

these considerations, locating a rest 

facility in the economy section would 

reduce the restfulness of the sleep 

obtained by a flightcrew member. 

Boeing stated it has concerns about 

the use of the phrase ‘‘sleep 

opportunity’’ in the definition. It noted 

that it considers a ‘‘sleep opportunity’’ 

to be a period of time during which 

sleep or rest can feasibly occur. Boeing 

suggested that the definition be revised 

to read: ‘‘Rest facility means a bunk, 

seat, room, or other accommodation that 

provides a flightcrew member with 

comfort and quiet so as to maximize 

sleep and rest within a sleep 

opportunity period.’’ 

Boeing’s suggested definition of rest 

facilities has already been largely 

incorporated into the definitions for the 

Class 1 and 2 rest facilities. The FAA 

declines to incorporate the suggested 

definition for a Class 3 rest facility 

because there is no recommendation in 

the TNO Report that a Class 3 facility 

provide sound mitigation. 

Boeing also said that it finds the new 

crew rest definitions to be overly 

prescriptive, and may drive design and 

configuration decisions that would run 

counter to the intent of the proposed 

rule. For example, all three classes of 

rest facility are defined by their 

location: Class 1 must be located 

‘‘separate from both the flight deck and 

passenger cabin;’’ Class 2 must be in the 

passenger cabin; and Class 3 must be in 

the cabin or flight deck. Boeing notes 

that while these definitions may 

encompass most or many of the current 

airplane configurations, they preclude 

new and novel designs that might better 

match the intent of the rule. The 

commenter recommended that the FAA 

consider including a provision in the 

rule that would allow new or alternative 

designs to be qualified as ‘‘equivalent’’ 

to Class 1, 2, or 3, based on scientific 

data, such as: ‘‘Rest facilities may be 

qualified to a higher Class if the 

quantity of sleep achieved in the facility 

can be demonstrated to be equal to or 

greater than the level achieved by that 

Class.’’ 

Boeing’s recommendation for 

recognizing new rest facilities that 

provide a sleep opportunity that is 

equivalent to the rest facilities defined 

by this rule is addressed by the FRMS 

and exemption processes. If an air 

carrier can show that its rest facility 

provides the same benefits as a Class 1, 

2, or 3 rest facility, the FAA may 

approve an FRMS or an exemption 

recognizing the rest facility in question 

as providing the same fatigue mitigation 

as the rest facilities regulated by this 

rule. 

Atlas said that the proposed rule’s 

definition of rest facility is unworkably 

vague and leaves a number of 

uncertainties, which the FAA declined 

to clarify in response to questions. In 

particular, NACA and Atlas stated that 

the definition of Class 1 rest facility 

needs to be revised, as it is impossible 

to provide complete ‘‘isolation from 

noise and disturbance’’ on an aircraft. 

Atlas said that it supports changing the 

definition of a Class 3 rest facility to 

include a common coach class seat or 

non-crew seat on the flight deck of an 

all-cargo aircraft. 

The definition for a Class 1 rest 

facility does not require that the 

isolation from noise and disturbance be 

complete. The FAA will accept a Class 

1 rest facility that minimizes noise and 

disturbance without eliminating it 

completely, as complete elimination of 

noise and disturbance onboard an 

aircraft is virtually impossible. As 

discussed above, the FAA has declined 

to accept an economy-class seat as a rest 

facility because the TNO Report has 

determined that these types of seat 

provide a minimal amount of restful 

sleep. 

24. Rest Period 

The NPRM defined ‘‘rest period’’ as a 

continuous period determined 

prospectively during which the 

flightcrew member is free from all 

restraint by the certificate holder, 

including freedom from present 

responsibility for work should the 

occasion arise. None of the comments 

raised any significant issues with regard 

to this definition, and as such, this rule 

adopts the proposed definition. 

25. Scheduled 

The NPRM stated that ‘‘scheduled’’ 

means times assigned by a certificate 

holder when a flightcrew member is 

required to report for duty. 

UPS commented that the definition 

does not address reschedules that occur 

during an FDP but only schedules 

assigned when the flightcrew member 


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346 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

reported for duty. UPS suggested 

revising the definition as follows: 

‘‘Scheduled means times assigned by a 

certificate holder when a flightcrew 

member is required to report for duty or 

has been given a re-schedule during the 

FDP that fully complies with the 

requirements of this part.’’ 

The FAA agrees with UPS that the 

proposed definition was ambiguous. 

The pertinent definition has been 

amended for clarification purposes. 

26. Schedule Reliability 

The NPRM defines ‘‘schedule 

reliability’’ to mean the accuracy of the 

length of a scheduled flight duty period 

as compared to the actual flight duty 

period. 

FedEx ALPA, ALPA, CAPA, SWAPA, 

IPA, and Flight Time ARC proposed the 

following revised definition for 

schedule reliability: ‘‘Schedule 

reliability means the accuracy of the 

length of both a scheduled flight duty 

period and a scheduled flight segment 

as compared to the actual flight duty 

period and segment.’’ SWAPA offered 

the following rationale for the revised 

definition: ‘‘To achieve schedule 

reliability, the individual flight 

segments must be considered. If a given 

segment within a pairing causes the 

pairing to exceed the limits, the 

certificate holder can merely leave the 

offending segment and change the 

pairing mix to bring it within limits. 

The segment would never be corrected. 

We believe that a scheduling metric 

must be included in § 117.9. Certificate 

holders now provide on-time reports to 

the DOT on an individual flight segment 

so this should not be a burdensome 

requirement.’’ 

UPS said that defining schedule 

reliability as a comparison of an actual 

FDP to a scheduled FDP has no fatigue 

or safety implications. It recommended 

revising the definition as follows to 

match the preamble description: 

‘‘Schedule reliability means the 

accuracy of the length of a scheduled 

flight duty period as compared to the 

maximum FDP listed in either Tables B 

or C (as applicable).’’ 

As discussed in other parts of this 

preamble, the FAA has largely removed 

the proposed schedule-reliability 

requirements from the final rule. As 

such, there is no longer a need to define 

schedule reliability, and that definition 

has been removed from this rule. 

27. Short-Call Reserve 

The NPRM stated that ‘‘short-call 

reserve’’ means a period of time in 

which a flightcrew member does not 

receive a required rest period following 

notification by the certificate holder to 

report for a flight duty period. 

NACA said that the only task assigned 

during short-call reserve is answering 

the phone. Otherwise, flightcrew 

members are free to conduct their lives 

as if they were in a rest period. NACA 

recommended clarifying the definition 

by specifying that short-call reserve is 

not duty. 

NACA, Atlas, and NAA asked the 

FAA to more clearly distinguish shortcall reserve from airport/standby 

reserve. Atlas recommended revising 

the definition of short-call reserve to 

mean ‘‘a short, designated period of 

time (usually three hours or less), either 

at home or in a hotel, during which a 

flightcrew member is on reserve call-up 

for an assignment. Because the 

flightcrew member has not reported for 

assignment and rest is available, the 

time on short-call reserve is not to be 

considered part of FDP or duty.’’ NAA 

recommended the following revision to 

the definition to address its concerns: 

‘‘Short-call reserve means a period of 

duty time in which a flightcrew member 

does not receive a required rest period 

following notification by the certificate 

holder to report for a flight duty period, 

but is provided more than one hour 

notice of the required reporting time.’’ 

In response to the above comments, 

the FAA notes that the distinctive 

feature of short-call reserve is that the 

flightcrew member on short-call reserve 

is assigned a reserve availability period. 

Accordingly, the definition of short-call 

reserve has been amended to clarify that 

this definition only applies to a 

flightcrew member who is assigned to a 

reserve availability period. As discussed 

in the pertinent portions of this 

preamble, the FAA has removed the 

cumulative-duty-period limits from this 

rule, in part, in response to concerns 

raised by commenters about the way 

that this cumulative limit impacted 

short-call reserve. 

28. Split Duty 

The NPRM defines ‘‘split duty’’ as a 

flight duty period that has a scheduled 

break in duty that is less than a required 

rest period. 

NACA said that the definition of split 

duty should make clear that the term 

‘‘scheduled’’ is used only where it is 

clearly applicable to the situation 

intended. For non-scheduled 

operations, NACA believed that a 

schedule begins when the flightcrew 

member shows up for an FDP. As such, 

NACA argued that split-duty credit 

should be provided for a break in 

nonscheduled operations that was not 

foreseen. Additionally, according to 

NACA, a scheduled split duty break 

should not be strictly enforced because 

it may be intended in a nonscheduled 

FDP at the time the flightcrew member 

shows up for the FDP but not used for 

real-time operational reasons. 

NACA further said that the fatiguemitigating rest must be provided in the 

FDP in which the split-duty credit is 

actually used. According to NACA, the 

split-duty rest can only be used if the 

split duty rest opportunity is actually 

provided. NACA recommended that the 

definition be revised as follows, to 

include the phrase ‘‘an actual’’ to 

address its concerns: ‘‘split duty means 

a flight duty period that has an actual 

scheduled break in duty that is less than 

a required rest period.’’ Atlas added 

that, for clarity and to strengthen split 

duty as a fatigue mitigation vehicle, the 

phrase ‘‘a scheduled break’’ in the split 

duty definition should be changed to 

‘‘an actual break.’’ 

RAA said that the definition should 

be revised as follows: ‘‘split duty means 

a flight duty period that has a scheduled 

break in duty in a suitable 

accommodation that is less than a 

required rest period.’’ 

The FAA agrees with the above 

commenters that split duty should be 

based on actual and not just scheduled 

rest. In light of the commenters’ 

concerns, the split duty section has been 

amended to clarify that actual split-duty 

rest may not be less than the amount of 

split-duty rest that was scheduled. With 

regard to NACA’s concerns about the 

term ‘‘scheduled,’’ as discussed in the 

split-duty section of this preamble, air 

carriers are required to schedule splitduty before the beginning of a split-duty 

FDP so that flightcrew members can 

accurately self-assess their ability to 

safely complete the FDP before the FDP 

begins. 

29. Suitable Accommodation 

The NPRM defines ‘‘suitable 

accommodation’’ to mean a 

temperature-controlled facility with 

sound mitigation that provides a 

flightcrew member with the ability to 

sleep in a bed and to control light. 

APA, ALPA, CAPA, SWAPA, FedEx 

ALPA, and Flight Time ARC said that 

operational experience has 

demonstrated that a single-occupancy 

room is required. Otherwise, 

disruptions such as the other person’s 

reading, watching television, snoring, 

etc., will disrupt the roommate’s rest. To 

address these concerns, the commenters 

recommend revising the definition as 

follows so that it only applies to single 

occupancy: ‘‘Suitable accommodation 

means single occupancy facility with 

sound mitigation that provides a 

flightcrew member with the ability to 


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sleep in a bed and to control light.’’ 

APA recommended the following 

revised definition: ‘‘suitable 

accommodation means a singleoccupancy hotel room or equivalent 

with a bed, sound mitigation and light 

and temperature controls that is 

reasonably free from disturbances.’’ 

In response to the above commenters, 

the FAA notes that it is unaware of any 

scientific data showing that singleoccupancy rooms are essential for splitduty rest. Until there is more data 

showing the safety benefits of singleoccupancy rooms, the FAA will not 

impose the cost of obtaining these types 

of rooms on air carriers. In addition, 

upon reevaluation of the definition of 

suitable accommodation, the FAA has 

determined that a chair that allows for 

a flat or near flat sleeping position 

would also provide significant 

recuperative split-duty rest. Therefore, 

the definition of suitable 

accommodation has been amended 

accordingly. 

In addition, as discussed further in 

the definition of ‘‘rest facilities,’’ a 

suitable accommodation only applies to 

ground facilities and does not apply to 

rest facilities onboard aircraft because 

the use of onboard rest facilities as a 

suitable accommodation raises concerns 

regarding flightcrew member safety. The 

use of onboard rest facilities requires 

that the aircraft’s environmental systems 

be turned on and that someone monitor 

the continuing operation of these 

systems. However, if an onboard rest 

facility is used as a suitable 

accommodation while the aircraft is on 

the ground, there would be no one 

awake to monitor the continuing safe 

operation of these environmental 

systems. Consequently, the use of 

onboard rest facilities for ground-based 

sleep poses a safety risk, which is also 

discussed in the aircraft flight manual, 

and as such, this rule does not consider 

onboard rest facilities to be a suitable 

accommodation. 

30. Theater 

The NPRM states that ‘‘theater’’ 

means a geographical area where local 

time at the flightcrew member’s flight 

duty period departure point and arrival 

point differ by no more than 4 hours. 

Flight Time ARC, ALPA, CAPA, IPA, 

and FedEx ALPA said that the 

definition should provide for instances 

where countries such as China have just 

one time zone. These commenters 

recommended amending the definition 

as follows to address such instances: 

‘‘Theater means a geographical area 

where local time at the flightcrew 

member’s flight duty period departure 

point and arrival point differ by no more 

than 4 time zones or 60 degrees of 

longitude.’’ APA and SWAPA 

commented similarly, except they 

recommended referencing three time 

zones instead of four so that the 

definition reads: ‘‘Theater means a 

geographical area where local time at 

the flightcrew member’s flight duty 

period departure point and arrival point 

differ by no more than three time zones 

or sixty (60) degrees of longitude 

whichever is most restrictive.’’ 

In support of its recommendation, 

APA and SWAPA said that they believe 

the intent of the NPRM is to define a 

theater as an area four time zones in 

width. Thus, this would be a difference 

of three time zones from the flightcrew 

member’s point of origin. APA further 

commented that it recommended three 

time zones because while the United 

States is four time zones wide, the 

difference between the east and west 

coast is three hours or three time zones. 

APA believed that specifying more than 

this amount would be contrary to most 

scientific recommendations about 

theater and acclimation. APA also 

believed that its revised definition 

addresses the irregularities of daylight 

savings time. 

Theater is now defined as ‘‘a 

geographical area where the flightcrew 

member’s flight duty period departure 

point and arrival point differ by more 

than 60 degrees longitude.’’ The FAA 

has chosen to eliminate the reference to 

time zones in this definition because, as 

the commenters correctly pointed out, 

time zones do not provide a uniform 

method of measurement, as they tend to 

vary in different geographic regions. 

31. Unacclimated 

The FAA did not propose a definition 

for this term; however, several 

commenters recommended that such a 

definition be included in the final rule. 

Flight Time ARC, ALPA, CAPA, 

SWAPA, IPA, APA and FedEx ALPA 

said that the FAA should define this 

term because it is used throughout the 

NPRM. Each of these commenters 

(except APA and SWAPA) defined the 

term as follows: ‘‘A pilot becomes 

unacclimated if he has traveled to a 

location more than 4 time zones or more 

than 60 degrees of longitude from the 

location at which he was last 

acclimated.’’ APA suggested the same 

definition except it referenced three 

time zones instead of four. SWAPA 

defined the term as follows: ‘‘A pilot 

becomes unacclimated if he has a legal 

rest period less than 36 consecutive 

hours within a 72 hour period at a 

location more than 60 degrees of 

longitude from the location at which he 

last acclimated and has not spent 72 

consecutive hours in that theater.’’ 

The commenters believed that 

defining acclimated in terms of time 

zones is subject to the whim of 

government policy. For example, China 

has one time zone but spans five normal 

time zones in width. Also, 60 degrees of 

longitude is equivalent to four normal 

time zones and should be included as a 

supplement to the time zone metric. 

APA added that a location more than 

three time zones away is in fact in the 

fourth time zone or further. 

In response to the above comments, 

the FAA notes that this rule defines 

‘‘acclimated,’’ and under that definition, 

it lists the conditions that are necessary 

for a flightcrew member to be 

considered acclimated. If a flightcrew 

member does not meet those conditions, 

it logically follows that the flightcrew 

member is unacclimated. Accordingly, 

it is unnecessary to provide a separate 

definition for ‘‘unacclimated.’’ 

32. Unforeseen Operational 

Circumstance 

The NPRM defines ‘‘unforeseen 

operational circumstance’’ as an 

unplanned event beyond the control of 

a certificate holder of insufficient 

duration to allow for adjustments to 

schedules, including unforeseen 

weather, equipment malfunction, or air 

traffic delay. 

Alaska Airlines commented that it 

disagrees with the following 

explanation from the FAA’s Response to 

Clarifying Questions document: 

To the extent the NPRM uses the term 

‘‘unforeseen circumstances,’’ the agency 

intended the term to have the same meaning 

as ‘‘unforeseen operational circumstances.’’ 

This term does not differ significantly from 

the current application of ‘‘beyond the 

control of the certificate holder’’ in 

§ 121.471(g) except that in the NPRM the 

FAA is clear that even if a situation is beyond 

the certificate holder’s control, it may not 

extend beyond the general limits if the 

circumstances were reasonably foreseeable. 

The commenter said that it disagrees 

with the FAA’s clarification because 

there is a major difference between the 

proposed definition and the current 

authorization in section 121.471(g). 

Alaska Airlines stated that the proposed 

definition was extremely vague because 

it did not definitively state whether 

situations such as bad weather would 

always constitute unforeseen 

circumstances. 

UPS expressed concern that the 

definition is not used consistently. It 

notes that in proposed §§ 117.15 and 

117.19, the term ‘‘unforeseen 

circumstance’’ is used, but the related 

wording does not match what is used in 


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the defined term. To address its 

concern, UPS suggested maintaining the 

current definition of ‘‘beyond the 

control of the certificate holder.’’ 

The FAA agrees with the above 

commenters that the proposed 

definition of ‘‘unforeseen operational 

circumstances’’ is unclear. To make the 

definition more definitive, ‘‘beyond the 

control of the certificate holder’’ was 

removed from the definition. As such, 

under the provisions of the final rule, an 

event constitutes an unforeseen 

operational circumstance as long as it 

was unplanned and long enough in 

duration that the issues associated with 

that event could not be resolved through 

minor schedule adjustments. The 

‘‘beyond the control of the certificate 

holder’’ safeguard was moved into the 

reporting requirement for various FDP 

extensions where it is easier to 

understand, and it is discussed in more 

detail in the pertinent portions of this 

preamble. 

Atlas, World Airways, NAA, and 

NACA said that while the FAA’s 

definition works well for scheduled 

service, it does not work for 

nonscheduled service. These 

commenters noted that nonscheduled 

service includes significant unforeseen 

circumstances where customers 

determine departure airports, arrival 

airports, and departure times. They also 

included instances where ground 

service providers typically give low 

priority to low frequency ad hoc or nonscheduled operations even though 

service contracts are assured before 

aircraft arrival. NAA and NACA added 

that the proposed definition also does 

not include other operational 

irregularities like Minimum Equipment 

List issues. 

To address their concerns, Atlas, 

World Airways, NAA, and NACA 

recommended the following revised 

definition: ‘‘Unforeseen operational 

circumstance means an unplanned 

event beyond the control of a certificate 

holder of insufficient duration to allow 

for adjustments to schedules, including, 

but not limited to, un-forecast weather, 

equipment malfunction, or air traffic 

delay, charter customers’ failure to 

present passengers and/or cargo at the 

scheduled time and place; and ground 

service providers that fail to provide 

services at the scheduled time.’’ 

In response to the concerns expressed 

above, the FAA emphasizes that the 

examples provided in the definition of 

‘‘unforeseen operational circumstances’’ 

are not intended to be exclusive. As 

discussed in the preceding response, an 

event constitutes an unforeseen 

operational circumstance as long as it 

was unplanned and long enough that 

the issues associated with that event 

could not be resolved through minor 

schedule adjustments. This definition 

includes unplanned events that are 

specific to supplemental operations. 

Alaska Airlines stated that the impact 

of all weather is unforeseeable, and the 

duration is always unknown and 

beyond the control of the certificate 

holder. It also stated that while many 

weather events are foreseeable, all are 

beyond the carriers’ control. The 

commenter suggested eliminating the 

phrase ‘‘insufficient duration to allow 

for adjustments to schedules,’’ and 

revising the definition as follows: 

‘‘Unforeseen operational circumstance 

means an event beyond the control of a 

certificate holder, including unforecast 

weather, equipment malfunction, or air 

traffic delay.’’ 

In response to Alaska Airlines, the 

FAA notes that the phrase ‘‘insufficient 

duration to allow for adjustments to 

schedules’’ is intended to exclude 

unplanned events of relatively short 

duration. For example, the FAA would 

not consider a five-minute air traffic 

delay as an unforeseen operational 

circumstance that justifies the need for 

a two-hour FDP extension. Because 

relatively short unplanned events 

should not be used as a basis for 

extending an FDP, the FAA has decided 

to retain ‘‘insufficient duration to allow 

for adjustments to schedules’’ in the 

definition of unforeseen operational 

circumstances. 

33. Window of Circadian Low 

The NPRM defined window of 

circadian low as a period of maximum 

sleepiness that occurs between 0200 and 

0559 during a physiological night. The 

FAA did not receive any comments with 

regard to this definition, and as such, 

this rule adopts the proposed definition. 

C. Fitness for Duty 

The goal of proposed section 117.5 

was to address situations in which a 

flightcrew member complies with the 

other provisions of this proposal, but 

still shows up for an FDP too fatigued 

to safely perform his or her assigned 

flight duties. The proposed section 

117.5 would have made fatigue 

mitigation the ‘‘joint responsibility of 

the certificate holder and the flightcrew 

member.’’ 75 FR 5587. This section 

sought to discourage certificate holders 

from pushing the envelope with fatigueinducing practices such as ‘‘scheduling 

right up to the maximum duty limits, 

assigning flightcrew members who have 

reached their flight time limits 

additional flight duties under part 91, 

and exceeding the maximum flight and 

duty limits by claiming reasonably 

foreseeable circumstances are beyond 

their control.’’ Id. The proposed section 

117.5 also sought to discourage 

flightcrew-member practices such as 

‘‘pick[ing] up extra hours, 

moonlight[ing], report[ing] to work 

when sick, commut[ing] irresponsibly, 

or simply not tak[ing] advantage of the 

required rest periods.’’ Id. 

To discourage the above practices, the 

proposed section 117.5 contained a 

number of restrictions. First, this section 

would have prohibited flightcrew 

members from accepting an assignment 

that would consist of an FDP if they 

were too tired to fly safely. Second, this 

section would have prohibited 

flightcrew members from continuing 

subsequent flight segments if they were 

too fatigued to fly safely. Third, the 

proposed section would have required 

the certificate holder to assess a 

flightcrew member’s state when he or 

she reported for work, and, if the 

flightcrew member was showing signs of 

fatigue, this section prohibited the 

certificate holder from allowing that 

flightcrew member to fly. Fourth, this 

section would have required flightcrew 

members to report to management about 

other flightcrew members who they 

believed were too tired to fly, and in 

those instances, it required management 

to perform an evaluation to determine 

whether the flightcrew member in 

question was indeed too tired to fly 

safely. Fifth, this section would have 

required certificate holders to develop 

and implement an internal evaluation 

and audit program to monitor whether 

flightcrew members were reporting to 

work fatigued. 

The FAA received numerous 

comments regarding the proposed 

section 117.5. For the sake of clarity, the 

FAA will analyze the substantive issues 

raised by the comments as those issues 

pertain to each of the proposed 

provisions of 117.5. 

Proposed § 117.5(a) 

Each flightcrew member must report for 

any flight duty period rested and prepared to 

perform his or her assigned duties. 

Two commenters stressed the 

importance of pilots being fit for duty. 

IPA, ALPA, Flight Time ARC, and one 

other commenter supported the 

proposed provision, and emphasized 

that this provision does not create a 

policing environment in which 

certificate holders track or monitor 

flightcrew members’ off-duty activities. 

Fifteen pilots requested the removal of 

the above provision, arguing that this 

provision unfairly places the burden of 

showing up fit for duty solely on the 

flightcrew member. Multiple 

commenters also emphasized that 


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tracking fitness for duty must be the 

joint responsibility of the certificate 

holder and the flightcrew member. 

Several commenters included 

suggestions and requests for 

clarification. NJASAP sought 

clarification regarding the repercussions 

of a flightcrew member reporting for 

duty without being properly rested. 

NAA and UPS recommended including 

the statement that flightcrew members 

need to be prepared to work ‘‘up to the 

prescribed FDP limits in Tables B or C’’ 

when they begin an FDP. 

Section 117.5(a) does not place the 

burden of showing up fit for duty solely 

on the flightcrew member. Section 

117.5(a), in conjunction with the other 

provisions of this rule, places a joint 

responsibility on the certificate holder 

and each flightcrew member. In order 

for the flightcrew member to report for 

an FDP properly rested as required by 

this section, the certificate holder must 

provide the flightcrew member with a 

meaningful rest opportunity that will 

allow the flightcrew member to get the 

proper amount of sleep. Likewise, the 

flightcrew member bears the 

responsibility of actually sleeping 

during the rest opportunity provided by 

the certificate holder instead of using 

that time to do other things. The 

consequences of a flightcrew member 

reporting for duty without being 

properly rested are addressed by 

subsections (b) and/or (c) of this section, 

which prohibit the flightcrew member 

from beginning or continuing an FDP 

until he or she is properly rested. 

Turning to NAA and UPS’ suggestion, 

the FAA has declined to add the 

proposed language to subsection 

117.5(a). The adopted language of 

subsection 117.5(a) requires each 

flightcrew member to report for an FDP 

‘‘rested and prepared to perform his or 

her assigned duties.’’ These assigned 

duties will not always extend to the 

outer limits prescribed in tables B and 

C of this rule. Indeed, a certificate 

holder will find it difficult to comply 

with the cumulative limits specified in 

section 117.23 if it always assigns duties 

at the outer limits of tables B and C. 

Therefore, the text of this subsection 

reflects the fact that a flightcrew 

member needs to be rested and prepared 

to safely perform the duties that are 

actually assigned to him or her. 

Proposed § 117.5(b) 

No certificate holder may assign and no 

flightcrew member may accept assignment to 

a flight duty period if the flightcrew member 

has reported for a flight duty period too 

fatigued to safely perform his or her assigned 

duties or if the certificate holder believes that 

the flightcrew member is too fatigued to 

safely perform his or her assigned duties. 

Peninsula Airways, Pinnacle Airlines, 

and Southern Air stated that the 

flightcrew is the best source of 

determining fatigue, and as such, an air 

carrier should not be responsible for 

monitoring fatigue symptoms and 

assessing fatigue. ATA, CAA, NACA, 

and a number of other commenters 

stated that the proposed subsection 

would be impossible to implement 

because it places the burden of 

determining flightcrew member fatigue 

on air carriers without providing the air 

carriers with an objective scientific 

standard for measuring fatigue. ATA 

and Delta added that when a flightcrew 

member reports for duty at the 

beginning of an FDP, it is impossible for 

an airline to determine whether that 

flightcrew member will be fatigued 

toward the end of the FDP. 

The NTSB supported enabling 

flightcrew members to self-report 

fatigue. NJASAP and Boeing stated that 

flightcrew members cannot subjectively 

self-assess whether they are too fatigued 

to safely carry out their assigned FDPs. 

NJASAP based its assertion on NASA 

fatigue research showing that when a 

person is fatigued, he or she suffers from 

impaired judgment, and may lack the 

ability to self-assess his or her level of 

alertness. Boeing asked the FAA to 

include non-subjective factors in the 

fatigue determination requirement, such 

as time of day and the amount of sleep 

received in a 24-hour period. Alaska 

Airlines asked that the phrase ‘‘too 

fatigued’’ be defined more clearly. 

Boeing was also concerned about 

flightcrew members who self-assess at 

the beginning of an FDP improperly 

assessing their competency to actually 

complete the FDP. 

CAPA, SWAPA, and APA 

recommended that the FAA add a nonretaliation provision to the proposed 

subsection in order to prevent 

disciplinary action against flightcrew 

members who self-report fatigue. One 

commenter stated that fatigue reporting 

should be voluntary. Two commenters 

argued that the entire crew should be 

assessed to determine fitness for duty. 

The FAA agrees with the commenters 

who stated that at this time sleep 

science cannot support a general 

regulatory standard under which air 

carriers would be required to monitor 

the exact level of flightcrew member 

fatigue. As these commenters correctly 

pointed out, there does not currently 

exist an objective standard for 

determining fatigue levels. As such, 

requiring air carriers to suspend 

flightcrew members who they ‘‘believe’’ 

are too fatigued would create a vague 

and difficult-to-apply regulatory 

standard. To address this concern, the 

FAA has eliminated the following 

provision from the proposed subsection: 

‘‘or if the certificate holder believes that 

the flightcrew member is too fatigued to 

safely perform his or her assigned 

duties.’’ The remaining language in this 

subsection places a limited burden on 

the certificate holder—it prohibits the 

certificate holder from assigning an FDP 

to a flightcrew member who has 

informed the certificate holder that he 

or she is too fatigued to safely perform 

his or her assigned duties. 

The discussion in the preceding 

paragraph should not be construed to 

imply that air carriers cannot identify 

flightcrew member fatigue. As the 

proposed AC 120–FIT (finalized as AC 

117–3) pointed out, there are objective 

signs that could be used to identify 

flightcrew member fatigue. The FAA has 

simply chosen not to impose a 

mandatory regulatory requirement 

because the signs used to identify 

fatigue cannot be synthesized into a 

general objective standard. However, the 

FAA encourages air carriers to 

voluntarily evaluate flightcrew members 

who are showing signs of fatigue. 

NJASAP and Boeing’s concerns about 

the subjective nature of flightcrew 

member self-assessment and selfreporting are mitigated by the fact that, 

pursuant to statutorily-mandated 

Fatigue Risk Management Plans (FRMP), 

flightcrew members will undergo fatigue 

education and training. The information 

that the flightcrew members learn 

during this training will increase each 

flightcrew member’s ability to selfassess his or her fatigue levels. 

In response to the comment that 

fatigue reporting should be made 

voluntary, the FAA has decided to make 

fatigue reporting mandatory because 

allowing a flightcrew member to accept 

an assignment to an FDP when that 

flightcrew member knows that he or she 

is too tired to fly safely poses an 

unacceptable safety risk. However, the 

FAA cannot, at this time, impose an 

objective requirement on self-reporting 

fatigue because, as the other 

commenters pointed out, there is no 

objective science-based standard that 

could be used to measure fatigue levels. 

The FAA also cannot further define the 

phrase ‘‘too fatigued’’ because defining 

this phrase requires the creation of an 

objective fatigue-measurement standard, 

which does not exist at this time. 

Instead of creating a single objective 

fatigue-measurement standard, the 

above subsection requires each 

flightcrew member to utilize the 

information provided during his or her 

statutorily-mandated fatigue training to 

self-assess whether he or she feels wellrested enough to safely complete his or 


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her assigned FDP. The FAA also 

emphasizes that flightcrew members 

who feel alert at the beginning of an 

FDP can immediately terminate the 

FDP, under subsection (c) of section 

117.5, if they feel themselves becoming 

too fatigued to safely continue their 

assigned duties. 

The FAA also considered the 

possibility of adding a non-retaliation 

provision to the above text, but 

ultimately decided against adding such 

a provision. As the NPRM pointed out, 

‘‘[c]arriers are entitled to investigate the 

causes for an employee’s fatigue.’’ 75 FR 

55858. ‘‘If a carrier determines that the 

flightcrew member was responsible for 

becoming fatigued, it has every right to 

take steps to address that behavior.’’ Id. 

However, if the flightcrew member’s 

fatigue is a result of the carrier not 

following the regulatory requirements of 

this rule, the FAA may initiate 

enforcement action against the carrier. 

Turning to concerns about fatigue 

affecting other air carrier employees, as 

discussed in the NPRM, the FAA ‘‘has 

decided to take incremental steps in 

addressing fatigue.’’ 75 FR 55857. In 

accordance with this decision, the 

NPRM proposed a flight, duty, and rest 

rule that was only applicable to 

flightcrew members. Because the 

proposed rule was not applicable to 

other flight crewmembers, such as flight 

attendants, expanding the rule to those 

flight crewmembers at this point in time 

would exceed the scope of this 

rulemaking. However, the FAA 

emphasizes that its incremental 

approach contemplates ‘‘future 

rulemaking initiatives [that] may 

address fatigue concerns related to flight 

attendants, maintenance personnel, and 

dispatchers.’’ Id. 

Proposed § 117.5(c) 

No certificate holder may permit a 

flightcrew member to continue a flight duty 

period if the flightcrew member has reported 

himself too fatigued to continue the assigned 

flight duty period. 

The FAA did not receive any 

comments that were specific to this 

subsection. To the extent any of the 

comments discussed in the preceding 

subsection are applicable to this 

subsection, the FAA’s response to those 

comments can be found above. 

Proposed § 117.5(d) 

Any person who suspects a flightcrew 

member of being too fatigued to perform his 

or her duties during flight must immediately 

report that information to the certificate 

holder. 

ATA, NACA, Delta, Alaska Airlines, 

and UPS stated that requiring persons to 

report other people who they believe to 

be fatigued could result in persons with 

no training or with ill will making 

erroneous reports. Multiple commenters 

emphasized that there is no objective 

scientific standard to guide personnel 

about when they need to make a report 

about another flightcrew member’s 

fatigue. ATA stated that the proposed 

subsection will shift liability to airlines 

and impose significant costs in the form 

of training and retraining tens of 

thousands of employees. 

The FAA agrees with the commenters 

who stated that, because there is no 

objective scientific standard to guide 

personnel about when they need to 

report other flightcrew members’ 

fatigue, having a mandatory reporting 

requirement could lead to a multitude of 

erroneous reports. To address this 

concern, the FAA has eliminated the 

above subsection from the final rule. 

However, even though the FAA has 

decided not to impose a mandatory 

reporting requirement, each flightcrew 

member and covered employee is 

encouraged to voluntarily inform their 

employer when they observe a fatigued 

flightcrew member. 

Proposed § 117.5(e) 

Once notified of possible flightcrew 

member fatigue, the certificate holder must 

evaluate the flightcrew member for fitness for 

duty. The evaluation must be conducted by 

a person trained in accordance with § 117.11 

and must be completed before the flightcrew 

member begins or continues an FDP. 

Numerous commenters stated that 

there is no objective scientific standard 

under which a certificate holder could 

evaluate a flightcrew member’s fitness 

for duty. The commenters also 

emphasized that the proposed 

subsection would create difficulties at 

remote airports where the certificate 

holder lacks personnel qualified to 

conduct a fitness-for-duty evaluation. 

The FAA agrees with the commenters 

that there is no objective scientific 

standard that an air carrier could use to 

evaluate a flightcrew member’s 

continued fitness for duty. Accordingly, 

the FAA has eliminated the above 

subsection from the final rule. 

Proposed § 117.5(f) 

As part of the dispatch or flight release, as 

applicable, each flightcrew member must 

affirmatively state he or she is fit for duty 

prior to commencing flight. 

RAA stated that there was no benefit 

to requiring each flightcrew member to 

sign a document stating that he or she 

is fit for duty. Instead, RAA suggested 

that the PIC sign the fitness for duty 

affirmation on behalf of the entire crew. 

NJASAP asked (1) how the flightcrew 

members would affirm fitness for duty 

via the flight release, and (2) whether 

this requirement would apply to each 

flight segment. 

As the FAA and other commenters 

pointed out elsewhere, there is no 

objective scientific test that the PIC 

could use to measure the fatigue levels 

of other flightcrew members. Because 

the PIC has no way to objectively 

measure other flightcrew members’ 

fatigue, the FAA has determined that 

each flightcrew member should be 

required to monitor his or her own 

fatigue level. As such, each flightcrew 

member must either make a written 

affirmation that he/she is fit for duty or 

terminate the assigned FDP pursuant to 

subsection 117.5(c). 

The requirement that flightcrew 

members make a written affirmation 

about their continued fitness for duty 

applies to each flight segment of the 

assigned FDP. This is because a 

flightcrew member who is alert at the 

beginning of an FDP may become 

dangerously fatigued once the FDP is 

underway. Requiring a written fitness 

for duty affirmation before each flight 

segment will help ensure that flightcrew 

members continuously monitor their 

fatigue levels during the course of an 

FDP. If, during the course of this 

monitoring, flightcrew members 

determine that they cannot safely 

continue their assigned duties, section 

117.5(c) would require them to 

terminate their assigned FDP prior to 

the beginning of the next flight segment. 

The affirmation on the dispatch or 

flight release simply needs to state that 

the undersigned flightcrew members 

affirm that they are fit for duty. The 

dispatch or flight release containing the 

affirmation must be signed by each 

flightcrew member. This requirement 

applies to each flight segment and each 

air carrier should inform its flightcrew 

members about the significance of 

signing a fitness-for-duty affirmation. 

Proposed § 117.5(g) 

Each certificate holder must develop and 

implement an internal evaluation and audit 

program approved by the Administrator that 

will monitor whether flightcrew members are 

reporting for FDPs fit for duty and correct 

any deficiencies. 

Alaska Airlines stated that the audit 

requirement is duplicative of the current 

FRMP process. Delta added that the 

audit requirement is unclear about how 

a carrier is supposed to monitor which 

flightcrew members are showing up fit 

for duty. ATA asserted that the 

evaluation and audit requirement is 

unworkable and impossible to 

implement because there are no 

objective scientific standards that a 

certificate holder could apply to 

‘‘monitor’’ which flightcrew members 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 351 

21See, e.g., NASA, Crew Factors in Flight 

Operations X: Alertness Management in Flight 

Operations, at 16 (Apr. 1999), http://humanfactors.arc.nasa.gov/zteam/PDF_pubs/ 

ETM.TM8_99rev.pdf (‘‘Sleepiness can degrade 

essentially every aspect of human performance’’). 

22The NASA fatigue report stated that: 

The level of underlying physiological sleepiness 

can be concealed by an environment in which an 

individual is physically active, has consumed 

caffeine, or is engaged in a lively conversation. 

Whereas these factors may affect the self-reported 

rating of sleepiness (usually individuals will report 

greater alertness than is warranted), they do not 

affect the underlying sleep need expressed by the 

level of physiological sleepiness. 

Id. at 17. 

23The National Institute for Occupational Safety 

and Health (NIOSH) provides one example of the 

unacceptable effects that the current lack of fatigue 

education has on flight safety. In its comment, 

NIOSH points out that ‘‘[i]n a survey of pilots 

working for large operators in Alaska, 22% 

responded that they made a decision to fly fatigued 

either weekly or monthly.’’ NIOSH Comments to 

DOT at 2. 

24Because the statute requires FRMPs to be 

updated every two years, the FAA anticipates that 

carriers will simply expand the group of employees 

subject to training in their next update, scheduled 

for the summer of 2013. 

are reporting for an FDP fit for duty. 

ATA added that the proposed 

subsection is unclear about what 

constitutes a ‘‘deficiency’’ and how a 

certificate holder is supposed to correct 

a ‘‘deficiency.’’ 

The FAA agrees with Delta and ATA 

that the proposed subsection does not 

provide a workable standard for the 

internal evaluation and audit program. 

Therefore, the FAA has removed the 

above subsection from the final rule. 

D. Fatigue Education and Training 

As part of the NPRM, the FAA 

proposed a fatigue education and 

training program. Studies have shown 

that fatigue degrades all aspects of 

human performance and impedes the 

exercise of sound judgment.21 Studies 

have also shown that, depending on the 

operating environment, it can be 

difficult for an individual to recognize 

that he or she is fatigued and that his 

or her judgment may be compromised.22

Given the impact that fatigue has on the 

performance of flight-related duties, the 

FAA was concerned that the existing 

regulatory structure did not properly 

educate air carrier personnel about 

fatigue and its impact flight safety.23

In order to raise awareness of fatiguerelated issues and provide training on 

fatigue mitigation strategies, the FAA 

proposed that certain air carrier 

personnel be required to undergo a 

fatigue education and training program. 

First, the proposed fatigue education 

and training provisions would have 

required fatigue education and training 

for each person involved with 

scheduling aircraft and crews, as well as 

all flightcrew members and individuals 

who conduct management oversight 

over covered personnel. Second, the 

proposed section would have required 

an initial 5-hour-long training session 

for all newly-hired covered employees 

and a 2-hour-long annual recurrent 

training session for all other covered 

employees. Third, this section set out a 

training curriculum that would have 

informed covered personnel about 

fatigue and fatigue countermeasures. 

Fourth, the proposed fatigue education 

and training section would have 

required certificate holders to make 

changes to their fatigue education and 

training programs after being notified of 

the need to do so by the Administrator. 

Alaska Airlines suggested that the 

FAA eliminate the proposed fatigue 

education and training section and 

instead rely on the FRMP to provide the 

necessary fatigue-related information to 

airline personnel. The FAA agrees with 

Alaska Airlines that the fatigue 

education and training program 

proposed in the NPRM was 

unnecessarily cumulative. 

Part 121 air carriers are currently 

statutorily-required to annually provide, 

as part of their FRMP, fatigue-related 

education and training to increase the 

trainees’ awareness of: (1) Fatigue; (2) 

‘‘the effects of fatigue on pilots;’’ and (3) 

‘‘fatigue countermeasures.’’ See Public 

Law 111–216 sec. 212(b)(2)(B). Today’s 

rule adopts the same standard of 

training as required by the statute. In 

addition, today’s rule adopts a 

mandatory update of the carriers’ 

education and training program every 

two years, as part of the update to their 

FRMP. See Public Law 111–216 sec. 

212(b)(4)(A) and (B). Both of these 

regulatory provisions merely place the 

existing statutory requirements in the 

new flight and duty regulations for the 

ease and convenience of the regulated 

parties and the FAA. 

The statute does not limit the required 

training to flightcrew members; 

however, the FRMPs developed by 

carriers and accepted by the FAA have 

generally been so limited. Today’s rule 

would require an expansion of the 

training portion of the FRMPs to all 

employees responsible for administering 

the provisions of the new rule, 

including flightcrew members, 

dispatchers, individuals directly 

involved in the scheduling of flightcrew 

members, individuals directly involved 

in operational control, and any 

employee providing direct management 

oversight of those areas.24 As discussed 

below, the FAA continues to believe 

that personnel responsible for crew 

scheduling and who play a role in 

assuring the carrier has operational 

control need to understand the causes of 

fatigue as well as the risk that pilot 

fatigue poses to safe operations. 

In response to comments from ATA, 

Atlas Air and NAA, among others, the 

FAA has amended the regulatory text to 

clarify that the fatigue education and 

training requirement only applies to 

individuals who are directly involved in 

flightcrew scheduling and/or 

operational control and their direct 

supervisors. The reason for designating 

such a broad category of covered 

personnel is to ensure that each 

individual who has the power to alter a 

flightcrew member’s schedule and/or 

change the manner in which operational 

control is exercised is fully aware of 

how his or her actions will affect 

flightcrew fatigue and flight safety. 

Direct management personnel were 

ultimately included in this category 

because a manager could order his or 

her immediate subordinate(s) to change 

flightcrew member schedules and/or 

change the manner in which operational 

control is exercised. 

The FAA has decided not to limit the 

scope of covered personnel to specific 

enumerated positions because air 

carriers may employ individuals who 

exercise significant control over 

flightcrew scheduling and/or 

operational control while not occupying 

one of the positions commonly 

associated with this type of authority. 

To ensure that these individuals receive 

the appropriate fatigue-related 

education and training, the FAA has 

retained the requirement that all 

individuals directly involved in 

flightcrew scheduling and/or 

operational control, as well as their 

direct supervisors, receive the training 

required under this section. 

In response to a question by ATA and 

Alaska Airlines about whether an air 

carrier’s CEO would be required to 

undergo fatigue education and training, 

that CEO would have to undergo fatigue 

education and training only if he or she 

is either (1) directly involved in 

scheduling flightcrew members/ 

exercising operational control, or (2) 

directly manages someone who is 

directly involved in scheduling 

flightcrew members/exercising 

operational control. Business decisions 

made by the CEO that only indirectly 

affect flightcrew scheduling/operational 

control would not trigger the fatigue 

education and training requirements of 

this section. 

Alaska Airlines and Delta asserted 

that they already have fatigue education 

and training programs. Alaska Airlines 

asked whether the proposed education 

and training requirements are 


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352 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

25AQP is a systematic methodology for 

developing the content of training programs for air 

carrier flightcrew members and dispatchers. It 

replaces programmed hours with proficiency-based 

training and evaluation derived from a detailed job 

task analysis that includes crew resource 

management. The AQP provides an alternate 

method of qualifying and certifying, if required, 

pilots, flight engineers, flight attendants, aircraft 

dispatchers, instructors, evaluators, and other 

operations personnel subject to the training and 

evaluation requirements of 14 CFR parts 121 

and 135. 

cumulative with regard to the existing 

Advanced Qualification Program 

(AQP).25 UPS suggested that the FAA 

rely on the AQP and FRMS to provide 

fatigue-related information to airline 

personnel. 

Delta requested that it be permitted to 

include material from its existing 

training program in the program now 

required by this section and that it be 

given credit for the training that its 

employees have already received. ATA 

and Alaska Airlines asked whether, in 

the case of an employee that changes 

employers, training received from a 

prior employer would count towards the 

requirements of this section. These 

commenters asserted that because the 

proposed training subject areas are 

generic and untethered to a specific 

airline’s operations, fatigue training 

from a prior employer should count 

toward fulfilling the requirements of 

this section. 

The FAA has determined that the 

problem with simply relying on AQP 

and FRMS to carry out the goals of the 

proposed fatigue education and training 

section is that both AQP and FRMS are 

programs that have been designed as 

alternatives to general requirements 

imposed on part 121 certificate holders. 

An air carrier can opt into an AQP 

program as an alternative to general 

training requirements that it would 

otherwise be subject to. See 14 CFR 

121.901(a). Likewise, under section 

117.7(a) of this rule, an air carrier can 

opt into an FRMS program as an 

alternative to some of the restrictions 

imposed by this rule. If the FAA was to 

rely on AQP and FRMS to take the place 

of the proposed fatigue education and 

training section, it would have to 

change AQP and FRMS to make them 

mandatory non-alternative programs in 

order to ensure that air carriers who 

currently choose not to participate in 

these programs have properly-trained 

personnel. This would destroy the 

alternative nature that is at the core of 

these programs, and as such, the FAA 

has decided against this approach. 

It should be emphasized, however, 

that air carriers that had fatigue 

education and training programs prior 

to development of their FRMP did not 

necessarily need to design a new 

separate program to accommodate the 

statutory requirement for training and 

may not need to do so in order to 

provide education and training to all 

personnel covered by today’s rule. 

Instead, these carriers may have simply 

supplemented their existing programs to 

meet the additional requirements 

imposed by the statute. For example, an 

existing fatigue education and training 

program that was offered as part of an 

air carrier’s AQP could have been 

amended so that it also met the 

requirements for an FRMP. That 

program would then satisfy the statute 

and the requirement adopted today, as 

well as the air carrier’s AQP-related 

fatigue education and training 

obligations. 

The FAA agrees with ATA and Alaska 

Airlines that, when changing employers, 

covered personnel do not need to repeat 

non-operation-specific fatigue training 

that they received from their previous 

employer if that training meets the 

requirements of this section. 

RAA objected to the proposed method 

of Administrator-required revisions to 

the fatigue education and training 

program. RAA argued that the proposed 

language ‘‘would open the door for 

changes directed at an airline’s fatigue 

training program from any number of 

individuals in [FAA] field offices, 

without standardization and 

coordination among those directives 

and at the risk of creating confusion in 

the important fatigue risk mitigation 

programs, messages and strategies that 

are sought though this regulation.’’ RAA 

suggested that the FAA update fatigue 

education and training programs by 

either: (1) Initiating a new rulemaking 

each time that the programs need to be 

updated, or (2) using its OpSpec 

authority under 14 CFR 119.51 to 

require changes to the fatigue education 

and training programs. 

Since the regulatory requirements 

adopted today will be administered 

through the carrier’s FRMP, the FAA 

has adopted the same language as the 

statute, to wit, the education and 

training programs must be updated 

every two years and the FAA will either 

approve or reject the updates within 12 

months of submission. If an update is 

rejected, the FAA will provide 

suggested modifications for 

resubmission of the update. 

RAA asked that this section be 

renamed ‘‘Fatigue Training Program’’ 

because the word ‘‘education’’ does not 

have a well-understood regulatory 

meaning. NJASAP asked whether 

distance learning would be permitted to 

satisfy the fatigue education and 

training requirements or whether the 

training must be conducted in person. 

With regard to NJASAP’s question about 

distance learning, this section does not 

prohibit distance learning. 

The FAA has also decided to retain 

the word ‘‘education’’ in the name of 

this program. The Merriam-Webster 

Dictionary defines ‘‘educate’’ as: (1) To 

train by formal instruction and 

supervised practice, or (2) to provide 

with information. Because covered 

personnel will receive formal 

instruction and be provided with 

information, the term ‘‘education’’ aptly 

describes the program that is required 

by this section. To further clarify the 

goals of this program, the FAA has 

amended the program’s name to the 

‘‘Fatigue Education and Awareness 

Training Program.’’ 

E. Fatigue Risk Management System 

The FAA proposed a Fatigue Risk 

Management System (FRMS) as an 

alternative regulatory approach to 

provide a means of monitoring and 

mitigating fatigue. Under an FRMS, a 

certificate holder develops processes 

that manage and mitigate fatigue and 

meet an equivalent level of safety. 

Under proposed § 117.7, an FAAapproved FRMS would include: (1) A 

fatigue risk management policy; (2) an 

education and awareness training 

program; (3) a fatigue reporting system; 

(4) a system for monitoring flightcrew 

fatigue; (5) an incident reporting 

process; and (6) a performance 

evaluation. In addition, if the 

Administrator determines that revisions 

were necessary to a carrier’s FRMS, the 

certificate holder must make the 

requested changes upon notification. 

Most commenters generally supported 

the concept of an FRMS as a way to 

manage fatigue and incorporate risk 

mitigation. Commenters questioned the 

scope and implementation of FRMS, 

and whether FRMS is a mature process 

that can be used effectively. There were 

few commenters, including Southern 

Air, who flatly disagreed that the FRMS 

would be effective. 

Commenters were split between two 

approaches: those who endorsed the 

concept of FRMS as an alternative 

approach to the regulatory provisions 

adopted in this rule; and those who 

argued that FRMS should not permit 

certificate holders to deviate from the 

prescriptive measures, but rather 

supplement the regulatory 

requirements. 

ATA contended that the FAA should 

wait for ICAO and international 

standards because the ambiguities 

presented in the proposal, as well as 

possible certificate holder reliance on 

future FAA determinations, could 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 353 

26The objective of the ASAP is to encourage air 

carriers and repair station employees to voluntarily 

report safety information that may be critical to 

identifying potential precursors to accidents. Under 

an ASAP, safety issues are resolved though 

corrective action rather than through punishment or 

discipline. The ASAP provides for the collection, 

analysis, and retention of the safety data that is 

obtained. An ASAP is based on a safety partnership 

that will include the FAA and the certificate holder, 

and may include a third party, such as the 

employee’s labor organization. 

27FOQA is a voluntary safety program that is 

designed to make commercial aviation safer by 

allowing commercial airlines and pilots to share deidentified aggregate information with the FAA so 

that the FAA can monitor national trends in aircraft 

operations and target its resources to address 

operational risk issues. The fundamental objective 

of this new FAA/pilot/carrier partnership is to 

allow all three parties to identify and reduce or 

eliminate safety risks, as well as minimize 

deviations from the regulations. 

competitively disadvantage U.S. 

carriers. Furthermore, ATA commented 

that the timing and approval of an 

FRMS is critical as operators that want 

to use an FRMS should be able to do so 

immediately once these rules are in 

place. UPS argued that the FRMS 

approval process must be available for 

least 12 months prior to the 

implementation of any final rule so that 

carriers can transition to an FRMS on 

the day that the requirements are 

effective. Lynden Air Cargo (Lynden) 

believed that the FRMP and FRMS 

processes are redundant and sought 

further explanation on the necessity of 

the two processes. 

ALPA, IPA, FedEx ALPA, APA, 

SWAPA and the Flight Time ARC 

specifically stated that the FRMS needs 

to be an equal partnership that includes 

the FAA, the certificate holder, and the 

pilot body. APA further commented that 

successful safety programs such as 

Aviation Safety Action Program 

(ASAP) 26 and the Flight Operational 

Quality Assurance (FOQA) 27 are based 

on a three-way partnership and that 

FRMS should be treated the same way. 

ATA, however, argued for a 

collaborative approach, similar to that of 

an AQP as a relationship between the 

carrier and FAA with no other parties 

involved. The Flight Time ARC argued 

that pilot representatives must have the 

right to suspend or terminate 

participation in the FRMS if they 

determine that the program’s safety 

purpose is not being met. Multiple 

entities commented that the FRMS 

should provide for an open reporting 

system and non-punitive environment. 

A number of commenters questioned 

the process by which an FRMS is to be 

amended and which FAA office would 

provide this oversight. ATA commented 

that the process of the FRMS should be 

centrally located at the headquarters 

level, to provide a uniform approval 

scheme. RAA, however, interpreted the 

proposed language as enabling FAA 

field offices to require certificate holders 

to makes changes to their FRMS, which 

creates standardization and 

coordination problems and possibly 

confusion. NACA commented that 

industry must have a clear 

understanding of the parameters and 

implementation of FRMS so that 

competitive advantages cannot be 

gamed through differing interpretations 

and implementation of FRMS. 

Some commenters, including RAA, 

believed that the approval of FRMS 

programs can best be accomplished via 

the same Operations Specifications 

authority that was established for each 

airline’s recently filed FRMP under 

§ 119.51. Additionally, RAA stated that 

generally the process for incorporating 

new science or advances regarding a 

program such as FRMS is through 

Advisory Circular process, where it can 

be presented as a new best practice. 

RAA further stated that if the FAA finds 

that future FRMS changes cannot be 

accommodated through the Advisory 

Circular process, then the agency should 

undertake appropriate rulemaking 

action and not simply skip the 

rulemaking process. ATA commented 

that the proposed regulatory text and 

draft AC120–103 do not provide the 

criteria used to approve a submitted 

FRMS. 

APA and ALPA argued that FRMS 

should be limited to specific certificate 

holders’ data and scheduled city pairs 

or substantially similar city pairs in 

terms of FDP length, start time and 

block, which must be scientifically and 

operationally validated by all 

stakeholders. ATA commented that in 

the NPRM, the FAA appears to suggest 

that FRMS will disfavor a system-wide 

approach. 

Some commenters sought stronger 

regulatory text describing the FRMS as 

active, data-driven and scientifically 

based. 

In response to the above comments, 

the FAA notes that, as stated in the 

NPRM, the option of an FRMS provides 

flexibility for certificate holders to 

conduct operations using a process that 

has been approved by the FAA based 

upon an equivalent level of safety for 

monitoring and mitigating fatigue for 

certain identified operations. A 

certificate holder may decide to use 

FRMS as a supplement to the 

requirements adopted in the rule, or it 

may use the FRMS to meet certain 

elements of this rule for which the 

adopted regulatory standard is not 

optimal. 

The FAA has decided to adopt 

subsections (a) and (b) of the regulatory 

text as proposed. Subsection (a) 

provides for a certificate holder to use 

an approved FRMS as an alternative 

means of compliance with the flight 

duty regulations provided that the 

FRMS provides at least an equivalent 

level of protection against fatiguerelated accidents or incidents. 

Subsection (b) specifies the components 

of an FMRS. 

The FAA has also decided to extend 

the voluntary FRMS program to allcargo operations, which are not required 

to operate under part 117. Under the 

FRMS provisions that this rule adds to 

subparts Q, R, and S of part 121, an allcargo operator that does not wish to 

operate under part 117 can nevertheless 

utilize an FRMS as long as it has the 

pertinent FAA approval. 

The implementing guidance in AC 

120–103 details each component, the 

minimum necessary tools for a complete 

and effective FRMS, the steps in the 

FRMS process and the roles and 

responsibilities of all the participants. 

An FRMS is a data-driven and 

scientifically based process that allows 

for continuous monitoring and 

management of safety risks associated 

with fatigue-related error. See AC 120– 

103 at p.3. Furthermore, an FRMS is an 

effective mitigation strategy when the 

organization bases it on valid scientific 

principles. Id. 

ICAO requires member states to 

implement some alternative means of 

compliance with existing rules and has 

recently issued Standards and 

Recommended Practices (SARPs) 

(effective December 15, 2011) that 

authorize the use of FRMS. In addition, 

ICAO, IATA and the International 

Federation of Air Line Pilots’ 

Association (IFALPA) jointly issued the 

Implementation Guide for Operators, 1st 

Edition, in July, 2011 to provide carriers 

with information on implementing an 

FRMS that is consistent with the ICAO 

SARPs. The FAA concludes that 

incorporating an FRMS element is 

critical to implementing a 

comprehensive regulatory schedule 

addressing fatigue. Therefore, this rule 

incorporates the ability of a certificate 

holder to use an FRMS. The provisions 

adopted in this rule are consistent with 

the ICAO standards and AC 120–103 

provides a means by which the operator 

may comply with these provisions. 

The FAA agrees that certificate 

holders should be able to use an 

approved FRMS on the effective date of 

these regulations. The FAA understands 

that this rule may impact collective 

bargaining agreements and that time is 

needed for those changes to be adopted 

and for certificate holders to submit and 

receive approval for an FRMS. 


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354 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

28AC No. 120–103 was issued on August 3, 2010. 

Therefore, the effective date of this rule 

is two years after publication date. This 

should allow adequate time for 

certificate holders to take the necessary 

steps prior to the effective date. 

The FAA indicated in the NPRM that 

it anticipates that all the FRMS 

proposals would be evaluated and 

approved at headquarters by individuals 

within Air Transportation Division, 

Flight Standards Service (AFS–200), 

who are dedicated to ensuring the 

continued quality of FRMS. The FAA 

has determined that the above course of 

action remains the best process to 

ensure consistency in the approval 

process. 

The process of evaluating FRMS 

proposals will generally proceed as 

follows. The certificate holder will 

request a meeting with AFS–200 to 

express its interest in pursuing an FRMS 

authorization. During this meeting, the 

certificate holder will outline its plans 

for an FRMS. AFS–200 will then review 

the certificate holder’s plans for an 

FRMS. Based upon the requirements for 

data collection identified by the 

certificate holder, the certificate holder, 

working in concert with AFS–200, will 

identify the applicable limitations from 

which the certificate holder may need a 

limited exemption for the sole purpose 

of data collection. 

Once the certificate holder has 

petitioned for this exemption, AFS–200 

will review the petition providing an 

analysis and developing applicable 

limitations and conditions for the 

exemption based upon the certificate 

holder’s data collection plan. If AFS– 

200 grants the requested exemption, the 

resulting exemption will be limited in 

duration and scope for the purpose of 

the necessary data collection. Once the 

data has been collected, the data will be 

submitted to AFS–200 for data 

validation and evaluation of FRMS 

policies and procedures and FRMS 

training requirements. The FAA will 

publish guidance for review and 

approval of an FRMS authorization. 

A successful FRMS will require a 

shared responsibility among 

management and the flightcrew 

members. In particular, developing 

mitigation strategies and schedule 

adjustments is going to be the result of 

a collaborative management process that 

includes all the stakeholders. In FAA 

Advisory Circular No. 120–103 Fatigue 

Risk Management Systems for Aviation 

Safety, the FAA identified four basic 

tools for a complete, workable, effective, 

and accountable FRMS: (1) Fatiguerelated data; (2) fatigue analysis 

methods; (3) identification and 

management of fatigue drivers; and (4) 

application of fatigue mitigation 

procedures. As flightcrew member input 

is critical to implementing these tools, 

the FAA finds that the FRMS 

philosophy is consistent with the 

approach of the identified voluntary 

programs, such as ASAP and FOQA and 

requires participation by more than just 

the FAA and the certificate holder. 

The FAA does not agree with the 

Flight Time ARC on imposing a 

requirement that the FRMS must be 

terminated or suspended if pilot 

representatives disagree with the 

program’s purpose. This issue is beyond 

the scope of the NPRM and pilot 

representatives independently may raise 

their issues with the certificate holder. 

In managing fatigue risk, the FAA has 

identified two types of operational 

evidence that are available to operators. 

(See AC No. 120–103, para (6)(1) and 

(2).) The first is monitoring flightcrew 

member duty schedules, which provides 

indirect evidence of potential fatigue 

resulting from inadequate or poorly 

timed opportunities to sleep. The 

second type of operational evidence is 

a non-punitive reporting system. 

Flightcrew members and other 

employees will be more encouraged to 

report subjective fatigue and to request 

relief from duties as necessary because 

of chronic fatigue. This reported 

information can be critical, in 

conjunction with other information 

about the conditions that contributed to 

fatigue, such as the work schedule for 

the week prior to the report. 

The FAA agrees with the commenters 

and has deleted the proposed paragraph 

in § 117.7 that would have required a 

certificate holder to make necessary 

changes to its FRMS upon notification 

by the Administrator. Once approved by 

the FAA, an FRMS will be incorporated 

into the certificate holder’s operations 

specifications and as contemplated in 

the NPRM, the FAA will use the process 

outlined in § 119.51 to amend 

operations specifications, if changes are 

necessary to a certificate holder’s FRMS. 

The FAA agrees with RAA that the 

use of advisory circulars is appropriate 

to incorporate new science or advances 

regarding fatigue as it relates to aviation 

operations. The regulations adopted in 

this rulemaking provide the baseline 

requirements for mitigating fatigue and 

instituting rest requirements. In the 

future, if the FAA concludes that the 

baseline regulations for flight and duty 

need to be revised, a rulemaking will be 

initiated. An approved FRMS can take 

advantage of the gains in science and 

experience, and if approved by the FAA, 

can permit certificate holders to exceed 

the baseline requirements. 

The regulatory text provides the 

mechanism for a certificate holder to 

use an FRMS and the elements that 

must be addressed in the FRMS. The 

implementing guidance addresses how 

the certificate holder may proceed with 

documentation and scientific analyses 

to support its request to deviate from the 

standards adopted in this rule. The 

analyses and supporting documentation 

needed for approval are driven by how 

the certificate holder intends to use the 

FRMS and the elements of the flight and 

duty regulations that the FRMS is 

intended to supplement. 

The FAA clarifies that a certificate 

holder may use an FRMS for any of the 

elements of the flight and duty 

requirements provided under this rule. 

While the FAA did state in its response 

to clarifying questions that ‘‘validating 

an FRMS will be costly and likely to be 

used only on a ‘route specific’ basis,’’ 

the agency was not attempting to 

discourage the use of an FRMS. The 

FAA encourages the use of an FRMS for 

certificate holders that can optimize 

their operations by doing so. 

The FAA has updated its guidance in 

AC No. 120–103, Fatigue Risk 

Management Systems for Aviation 

Safety,28 as a result of this rule. This AC 

is available at www.faa.gov. The FAA 

fully expects that as the program 

matures, certain carriers may apply the 

system to more than specific operations. 

In accordance with Public Law 111– 

216, each part 121 air carrier had to 

submit to the FAA an FRMP. An FRMP 

is statutorily required for each part 121 

air carrier; whereas, an FRMS is an 

optional approach to fatigue mitigation. 

The FRMP outlines the certificate 

holder’s policies and procedures for 

managing and mitigating day-to-day 

fatigue from within a regulatory 

structure. This plan addresses the 

carrier’s flightcrew members. The FRMP 

consists of three elements with respect 

to managing pilot fatigue: (1) Current 

flight time and duty period limitations; 

(2) a rest scheme that enables the 

management of fatigue and includes 

annual training to increase awareness of 

fatigue and fatigue countermeasures; 

and (3) the development and use of a 

methodology that continually assesses 

the effectiveness of the program. 

While this plan is required under the 

statute, the simple adherence to this 

plan would not permit for any 

allowances by the certificate holder 

outside the adopted flight and duty 

regulations. An FRMS requires a process 

to apply to other individuals 

responsible for flightcrew fatigue other 

than pilots. As stated previously, there 

is a variety of positions held by 

individuals who are responsible for 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 355 

29See, e.g., NASA, supra note 22, at 19–34. 

30Folkard, supra note 15, at 98 (analyzing three 

studies that reported a trend in risk over successive 

hours on duty). 

31Continental Connection Flight 3407 was 

operated by Colgan Air. 

addressing fatigue other than pilots. The 

FRMS requires the process to include all 

applicable individuals. Furthermore, the 

FRMS is a means to permit a carrier to 

meet the requirements of this rule 

through an alternative measure. The 

FRMP does not contain adequate 

elements to allow the FAA to authorize 

operations or specific operations to be 

conducted outside the regulatory 

baseline requirements. Therefore, it is 

necessary to retain both the FRMS 

section and the FRMP requirement. 

These two processes, while sharing 

similar information, pose two distinct 

purposes. 

F. Flight Duty Period—Unaugmented 

One of the regulatory concepts that 

this rule introduces is the restriction on 

flightcrew members’ maximum FDP. In 

creating a maximum FDP limit, the FAA 

attempted to address three concerns: (1) 

Flightcrew members’ circadian rhythms, 

(2) the amount of time spent at work, 

and (3) the number of flight segments 

that a flightcrew member is scheduled 

to fly during his or her FDP. 

First, flightcrew members’ circadian 

rhythms needed to be addressed 

because studies have shown that 

flightcrew members who fly during their 

window of circadian low experience 

severe performance degradation.29

Second, the amount of time spent at 

work needed to be taken into 

consideration because longer shifts 

increase fatigue.30 Third, the number of 

flight segments in a duty period needed 

to be taken into account because flying 

more segments requires more takeoffs 

and landings, which are both the most 

task-intensive and the most safetycritical stages of flight. These takeoffs 

and landings require more time on task, 

and as pilots generally appear to agree, 

‘‘flying several legs during a single duty 

period could be more fatiguing.’’ 75 FR 

5858. 

To address the concerns listed above, 

the FAA proposed a table limiting 

maximum FDP based on the time of day 

and the number of segments flown 

during the FDP period. This table was 

based on the conservative proposal 

articulated by the Flight Time ARC 

members representing labor, which in 

turn was based on the approach used by 

foreign flight, duty, and rest regulations 

such as United Kingdom Civil Aviation 

Authority Publication 371 (CAP–371) 

and European Aviation Safety Agency 

(EASA) Notice of Proposed Amendment 

No. 2009–02A. Under the FAA’s 

proposal an FDP would begin when a 

flightcrew member is required to report 

for duty that includes a flight and would 

end when the aircraft is parked after the 

last flight and there is no plan for 

further aircraft movement by the same 

flightcrew member. Under the proposal, 

the maximum FDP limit would be 

reduced: (1) During nighttime hours to 

account for being awake during the 

WOCL; (2) when an FDP period consists 

of multiple flight segments in order to 

account for the additional time on task; 

and (3) if a flightcrew member is 

unacclimated to account for the fact that 

the unacclimated flightcrew member’s 

circadian rhythm is not in sync with the 

theater in which he or she is operating. 

In filed comments, Drs. Belenky and 

Graeber stated that ‘‘there is no 

scientific basis’’ for the different FDP 

limits assigned during different 

departure times. NACA and Atlas Air 

also stated that the different FDP limits 

are too complex and not based on 

science. Conversely, the National 

Institute of Occupational Safety and 

Health (NIOSH), Delta, APA, NJASAP, 

and three individual commenters 

endorsed the FAA’s approach of varying 

FDP limits based on the time of day. In 

support, NIOSH pointed out that studies 

have shown that long night shifts 

significantly increase the risk of an 

accident, as compared to day shifts. 

Delta stated that its pilot working 

agreement has used a time-of-day-based 

approach ‘‘to mitigate fatigue for many 

years.’’ 

ATA, UPS, and Southwest Airlines 

also asserted that the reduction of the 

daily FDP limit to account for additional 

segments flown during the FDP is not 

supported by science or any other 

evidence. ATA argued that anecdotal 

evidence was not sufficient to support 

reducing the FDP limit in response to 

multiple flight segments assigned 

during the FDP. The SkyWest Airlines 

Pilot Association also stated that 

reducing FDP based on the number of 

flight segments disproportionately 

affected regional air carriers. Southwest 

stated that an FDP reduction based on 

the number of flight segments would 

also significantly raise the operational 

costs of its point-to-point business 

model. 

Conversely, RAA stated that ‘‘[i]t is 

also intuitive that there is likely 

correlation between the number of flight 

segments flown during an FDP and the 

level of fatigue that a flightcrew member 

will experience, although the exact 

science for that relationship remains 

under research.’’ FedEx ALPA agreed, 

stating that ‘‘[w]e also know that 

additional flight segments significantly 

increase fatigue and workload.’’ APA’s 

comment pointed to a number of 

scientific studies indicating that flying 

multiple segments is more fatiguing 

than flying a single segment. APA 

argued that Table B should reduce FDPs 

after the first segment instead of after 

the first 2–4 segments. The Families of 

Continental Connection Flight 3407,31

as well as three individual commenters, 

also stated that flying additional flight 

segments, with the corresponding 

additional takeoffs and landings, adds to 

fatigue. 

ATA, CAA, Capital Cargo, and UPS 

also argued that some of the limits set 

out in Table B are unreasonable and 

overly restrictive. These commenters 

asserted that the 9-hour limit is 

unscientific, and significantly lower 

than the 11-hour nighttime limit 

established by CAP–371 and EU Rules 

Subpart Q. UPS emphasized that the 

9-hour FDP limit constitutes a 44% 

reduction from the current regulations. 

CAA also argued that the Campbell-Hill 

report indicates that regulation of FDPs 

under 15 hours is unnecessary because 

the FAA’s regulatory impact analysis 

indicates that the rate of accidents 

begins to increase only after 15 hours on 

duty. 

CAA submitted an alternative 

proposal in which nighttime FDPs are 

limited to 11 hours. Capital Cargo 

emphasized that, if this rule built in 

additional rest requirements, the longer 

FDPs in the CAA proposal could be 

implemented without decreasing safety. 

ATA added that the 9-hour limit for 

night operations is unreasonable 

because air carriers that regularly 

operate nighttime operations provide 

mitigation to their crews that would 

allow those crews to exceed the 9-hour 

limit. Grand Canyon Airlines argued 

that the 9-hour nighttime limit is 

unreasonable because flightcrew 

members who repeatedly fly at night 

will acclimate to working during their 

WOCL. SkyWest Airlines asked that the 

FAA increase the nighttime FDP limit to 

14 hours to accommodate overnight 

continuous duty operations. SkyWest 

asserted that these types of operations 

are safe because ‘‘most all [continuous 

duty operation] pairings provide at least 

5 hours of sleep between the periods of 

11:30 p.m.–4:30 a.m., spanning a 12–13- 

hour duty period.’’ 

NIOSH, on the other hand, suggested 

that the FDP limit for night shifts be 

decreased to 8 hours. In support of its 

suggestion, NIOSH pointed out that, in 

general, studies have shown that ‘‘[r]isk 

for worker errors and injuries are 15% 

higher for evening shifts and 28% 


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356 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

32See NASA, supra note 22, at 28. 

33See, e.g., Folkard, supra note 15, at 98. 

34 Id. 

35 David Powell, et al., Fatigue in Two-Pilot 

Operations: Implications for Flight and Duty Time 

Limitations, Aviation, Space, and Environmental 

Medicine, Vol. 79, No. 11, Nov. 2008, at 1047. 

36 David Powell, et al., Pilot Fatigue in Short-Haul 

Operations: Effects of Number of Sectors, Duty 

Length, and Time of Day, Aviation, Space, and 

Environmental Medicine, Vol. 78, No. 7, Jul. 2007, 

at 701. 

37Samira Bourgeois-Bougrine, et al., Perceived 

Fatigue for Short- and Long-Haul Flights: A Survey 

of 739 Airline Pilots, Aviation, Space, and 

Environmental Medicine, Vol. 74, No. 3, Oct. 2003, 

at 1076. 

higher for night shifts, as compared to 

day shift[s].’’ NIOSH also stated that 

‘‘[w]hen compared with 8-hour shifts, 

10-hour shifts increased the risk by 13% 

and 12-hour shifts increased risk by 

28%.’’ NIOSH thus concluded that 

permitting night shifts consisting of long 

hours could result in risk ranging from 

41% to 55%, as compared to 40-hourweek day shifts. NJASAP stated that ‘‘it 

is prudent to keep the FDP at 9 hours 

or less when the FDP touches the 

[window of circadian low].’’ 

A number of individual commenters 

wrote in suggesting maximum FDP 

limits ranging from 10 to 16 hours. 

Washington State University (WSU), at 

the behest of RAA, examined the parts 

of the FAA-proposed FDP limits that 

were different from the FDP limits 

proposed by the Flight Time ARC 

members representing industry. As part 

of its examination, WSU ran the 

different limits through its own 

unvalidated model, as well as the 

SAFTE model. Both the WSU and 

SAFTE models showed that, in the 

0400–1759 timeframe, the FAAproposed FDP limits were more 

restrictive than necessary as compared 

to the industry ARC members’ proposed 

FDP limits. As a result of WSU’s 

findings, RAA suggested: (1) That the 

Table B limits in the 0400 through 1059 

timeframe be adjusted upward to reflect 

the industry ARC members’ proposal, 

and (2) that the Table B limits for a 5- 

flight-segment FDP in the 1700 through 

2159 timeframe be adjusted downward 

to reflect the industry ARC members’ 

proposal. Continental also urged the 

FAA to adopt the industry ARC 

members’ FDP-limit proposal. 

In addition, ATA argued that the 

limits for the 0500–0559 and 0600–0659 

blocks are unreasonable. ATA stated 

that these block times would involve 

flying mostly during daytime hours, and 

that they would involve flightcrew 

members who received most of their 

sleep during the window of circadian 

low. ATA emphasized that the costs 

associated with these limits cannot be 

justified in light of the fact that there is 

no scientific basis for the specific daily 

FDP limits proposed by the FAA. 

Conversely, APA argued that the FDP 

limits for early morning and late 

evening duty periods should be reduced 

because flightcrew members on those 

FDPs will either (1) receive truncated 

window-of-circadian-low sleep, or (2) 

have been awake for an extended period 

of time. NJASAP added that the FDP 

limits proposed by labor ARC members 

promote a higher level of safety than the 

FDP limits proposed by industry ARC 

members. 

In response to the above comments, 

the FAA finds that, as NIOSH correctly 

pointed out, studies have shown that 

human performance varies significantly 

depending on the time of day. Thus, for 

example, a NASA report on fatigue in 

flight operations found that ‘‘75% of 

night workers experience sleepiness on 

every shift, and 20% report falling 

asleep.’’ 32 To account for these time-ofday-based variations of human 

performance, Table B sets FDP limits 

that are higher for FDPs taking place 

during peak circadian times and lower 

for FDPs taking place during the WOCL. 

Studies have also shown that after a 

person works for approximately eight or 

nine hours, the risk of an accident 

increases exponentially for each 

additional hour worked.33 According to 

a series of studies that examined the 

national rate of accidents as a function 

of the amount of hours worked, the risk 

of an accident in the 12th hour of a 

work shift is ‘‘more than double’’ the 

risk of an accident in the 8th hour of a 

work shift.34 To account for this data, 

the flight time limits in Table A restrict 

a flightcrew member’s time on task to 

either 8 or 9 hours. Because Table A 

does not allow a flightcrew member’s 

time on task to exceed 9 hours, the 

maximum FDP limits in Table B permit 

an FDP that is up to 14 hours, 

depending on the time of day. 

Turning to the complex nature of the 

FDP limits, the reason for Table B’s 

complexity is to avoid regulating to the 

lowest common denominator. As an 

alternative to the different FDP limits 

listed in Table B, the FAA could have 

set an across-the-board FDP limit of 9 

hours. This limit would have been 

simple to understand, and it would have 

provided the necessary protection for 

multi-segment FDPs that take place 

during the WOCL. However, this limit 

also would have effectively reduced 

flight times, since with a 9-hour FDP, a 

flightcrew member would never reach a 

full 9-hour flight time. Such an 

approach would also fail to recognize 

the flexibility required for multisegment operations, which incorporate 

some ‘‘down-time’’ into intermittent 

time-on-task. Thus, in order to provide 

air carriers with additional scheduling 

flexibility and avoid unnecessarily 

restricting all FDPs to the lowest 

common denominator, the FAA 

ultimately decided to utilize the 

somewhat more complex FDP limits 

listed in Table B. 

Turning to the comments concerning 

flight segments, each flight segment that 

is flown by a flightcrew member 

includes a takeoff and a landing, which 

are the most task and safety-intensive 

parts of the flight. A flightcrew member 

whose FDP consists of a single flight 

segment only has to perform one takeoff 

and landing, while a flightcrew member 

whose FDP consists of six flight 

segments will have to perform six sets 

of takeoffs and landings. Because 

takeoffs and landings are extremely 

task-intensive, it logically follows that a 

flightcrew member who has performed 

six sets of takeoffs and landings will be 

more fatigued than the flightcrew 

member who has performed only one 

takeoff and landing. 

While there are no studies measuring 

the objective performance of pilots who 

have flown multiple flight segments, 

there are studies that are based on 

subjective pilot reporting of fatigue that 

support a link between fatigue and the 

number of flight segments. For instance, 

a 2008 study of fatigue in two-pilot 

operations found that ‘‘the most 

important influences on pilot fatigue 

were the number of sectors and the 

length of the duty period.’’ 35 A 2007 

study of pilot fatigue in short-haul 

operations found that ‘‘[d]uty length and 

the number of sectors increased fatigue 

in a linear fashion.’’ 36 A 2003 study of 

perceived fatigue for long and shorthaul flights found that ‘‘time pressure, 

number of legs per day, and consecutive 

days on duty contributed to increased 

fatigue.’’ 37 Based on these studies, its 

operational experience, and the logical 

connection between fatigue and 

additional flight segments, the FAA has 

decided to retain, in Table B, the FDPdecreases caused by FDPs with multiple 

flight segments. 

However, while there is a link 

between FDP and multiple flight 

segments, it is unclear exactly how 

much fatigue is caused by each flight 

segment. As such, Table B does not 

utilize the method employed by other 

civil aviation authorities of a linear 

FDP-limit decrease after the first flight 

segment. Instead, Table B generally does 

not decrease FDP limits until a 

flightcrew member is assigned an FDP 

that has five or more flight segments. 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 357 

38See, e.g., NASA, supra note 22, at 19–34. 

39See Folkard, supra note 15, at 98. 

40See id. 

41 Id. 

42See Comments of the Cargo Airline 

Association, Attachment C at 5 (Nov. 15, 2010). 

43CAP–371 section 7.3.1. 

44 Id. section 7.3. 

45EU Rules, Subpart Q, OPS 1.1105, sections 1.3 

and 1.5. 

46 Id. OPS 1.1105, section 2.1; OPS 1.1110, 

section 1.1. 

For several FDP limits that are 

unusually high and/or that take place 

during critical circadian times, Table B 

decreases FDP limits after the first two 

flight segments to account for the 

additional fatigue caused by those FDPs. 

The FAA understands that an FDPlimit decrease linked to multiple flight 

segments will disproportionately affect 

regional air carriers and point-to-point 

operations, such as the one employed by 

Southwest. That is why, given the lack 

of information on the specific amount of 

fatigue caused by each flight segment, 

Table B does not follow the approach 

taken by CAP–371 and the EU OPS 

subpart Q of reducing FDP after the first 

flight segment. However, as discussed 

above, there appears to be a link 

between fatigue and the number of flight 

segments, and the flightcrew members 

working for Southwest and regional 

carriers are as susceptible to multipleflight-segment-caused fatigue as other 

flightcrew members. Because a flight 

duty and rest rule must take into 

account the increased fatigue caused by 

performing multiple takeoffs and 

landings in a single FDP, Southwest and 

regional air carriers cannot be exempted 

from this portion of Table B. 

The FAA also agrees with NIOSH that 

long duty periods that take place during 

the WOCL substantially increase the 

risk of an accident. As discussed above, 

studies have found that human beings 

who work during the WOCL experience 

substantial degradation in their ability 

to safely perform their assigned duties.38

Studies have also found that each 

additional hour worked after 

approximately 8 or 9 hours 

exponentially increases the risk of an 

accident.39 Given this data, the FAA has 

restricted nighttime FDPs to 9 hours. 

Because a 9-hour FDP is relatively safe, 

the FAA has decided not to reduce the 

nighttime FDP limit any further. 

However, given the significantly 

increased risk of an accident posed by 

long nighttime FDPs, the FAA has also 

decided not to raise the nighttime FDP 

limit above 9 hours, even though this 

means that in many instances the 

flightcrew member would not reach the 

allowable flight limit. 

In addition, the FAA has determined 

that there is little evidence that a 

flightcrew member who repeatedly 

works on nightshifts will experience 

substantial safety-relevant changes to 

his or her circadian rhythm through 

acclimation. Acclimation consists of 

changes to a person’s circadian rhythm 

that are made in response to external 

environmental factors, such as receiving 

sunlight at a time when one’s body is 

used to experiencing nighttime 

darkness. While people who 

continuously work at night may 

experience some acclimation, that 

acclimation is neither complete nor 

long-lasting. The nightshift acclimation 

also generally disappears after only a 

few days off. 

Similarly, it does not appear likely at 

this time that a longer rest period would 

necessarily decrease the substantial risk 

associated with longer nighttime FDPs. 

This is because daytime sleep is less 

restful than nighttime sleep, and the 

additional rest provided to a nightshift 

flightcrew member would be taken 

during the day. However, the FAA is 

open to the possibility of allowing air 

carriers to exceed the 9-hour nighttime 

FDP limit if they can establish through 

an FRMS that additional daytime sleep 

would allow their flightcrew members 

to safely work on longer nighttime 

FDPs. 

The FAA has also considered CAA’s 

argument concerning the Campbell-Hill 

report’s analysis, which states that the 

accident rate only statistically increases 

in the 15th hour of duty and beyond. 

The FAA finds the peer-reviewed 

studies analyzing the national accident 

rate to be more persuasive.40 This is 

because the national-accident-rate 

analyses are based on the overall 

national accident rate, which provides a 

far larger sample than the number of 

aviation incidents on which the 

Campbell-Hill analysis is based. As 

discussed above, according to the peerreviewed national-accident-rate studies, 

the risk of an accident increases 

exponentially for each hour worked 

after 8 hours.41 Even CAA, which 

submitted the Campbell-Hill report, 

appears to have implicitly recognized 

that report’s limitations because the 

alternative proposal that CAA submitted 

to the FAA did not use the 15-hour FDP 

limit suggested by Campbell-Hill. 

Instead, CAA’s proposal limited 

nighttime FDPs to 11 hours and daytime 

FDPs to 13 hours.42

The FAA has also recognized that 

CAP–371 and EU OPS subpart Q permit 

higher nighttime FDP limits in some 

situations. However, these foreign 

regulators are able to safely allow higher 

nighttime FDP limits because their 

operating environment allows them to 

mitigate the risk associated with 

nighttime FDPs in other ways. For 

example, CAP–371 sets general 

nighttime FDP limits to 11 hours for 

one-segment nighttime FDPs. However, 

if a flightcrew member is scheduled for 

nighttime duty on five consecutive 

nights, CAP–371 reduces that flightcrew 

member’s nighttime FDP limit to eight 

hours and imposes substantial 

additional rest requirements.43 CAP– 

371 also imposes a mandatory split duty 

rest period for flightcrew members who 

have a nighttime FDP for at least two 

consecutive nights.44 This rule, on the 

other hand, only requires a mid-duty 

rest period if a flightcrew member has 

a nighttime FDP for at least four 

consecutive nights. 

Similarly, EU OPS subpart Q also 

appears to set slightly higher FDP limits 

for nighttime operations.45 However, in 

exchange for these higher limits, 

Subpart Q limits FDP extensions to 1 

hour and requires a minimum of 12 

hours’ rest between FDP periods.46 This 

rule, on the other hand, permits FDP 

extensions of 2 hours and only requires 

10 hours’ rest between FDP periods. As 

these examples illustrate, some of the 

key provisions of this rule are 

fundamentally different from the 

provisions of its international 

counterparts. These differences are a 

result of the different operating 

environments in which these rules 

regulate, and, by themselves, these 

differences are insufficient to justify 

increasing the nighttime limits of Table 

B. 

With regard to comments about 

nightshift carriers providing mitigation 

to their crews and continuous duty 

operations that employ mitigation 

measures, this rule takes nighttime 

mitigation into account through the split 

duty and augmentation credits. If an air 

carrier employs mitigation measures not 

addressed by this rule, that air carrier 

may submit its mitigation measures for 

FAA evaluation as part of an FRMS 

program. 

The FAA agrees with RAA that 

SAFTE modeling shows that the 

proposed FDP limits in the 0400 

through 1059 timeframe were excessive 

and did not increase the degree of safety 

as compared to the industry-ARCmembers’ proposal. As such, these 

limits have been adjusted upward to 

reflect the industry-ARC-members’ 

suggested FDP limits for these 

timeframes. The FAA also agrees with 

ATA that the proposed limits for the 

0500–0659 timeframe were set 

unreasonably low. This is because 


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358 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

47The FAA has actually increased the FDP limit 

in question to account for concerns expressed by 

supplemental carriers. The increases based on supplemental-carrier comments are discussed more 

fully below. 

flightcrew members who fly during 

those times obtain most of their sleep at 

night and sleep through most of their 

WOCL. The upward adjustment that the 

FAA made in response to RAA’s SAFTE 

modeling increases the FDP limits in 

this timeframe to a reasonable level, and 

should address ATA’s concerns in this 

area. 

The FAA declines to make a 

downward adjustment to the fivesegment FDP limit in the 1700–2159 

timeframe.47 This is because the flight 

time limits contained in Table A 

substantially restrict a flightcrew 

member’s time on task. The time-on-task 

restriction allows the FAA to safely 

impose a higher FDP limit for a fivesegment FDP in this timeframe. As such, 

the FAA has not made downward 

adjustments to this limit. 

In addition, the FAA declines APA’s 

suggestion of decreasing FDP limits for 

early morning and late evening FDPs. 

The primary time-of-day safety concern 

on which Table B is based is that 

flightcrew members who fly during the 

WOCL suffer a severe degradation of 

performance. FDPs that begin in the 

early morning or end late in the evening 

do not infringe on the WOCL, and thus, 

do not trigger this concern. Also, as 

ATA correctly pointed out, flightcrew 

members assigned to these FDPs are 

able to obtain most of their sleep at 

night, and nighttime sleep is the most 

restful type of sleep. Moreover, as 

discussed above, RAA’s SAFTE 

modeling showed that a slight upward 

adjustment to early morning FDPs 

would not decrease safety. For all these 

reasons, the FAA has decided not to 

decrease the FDP limits for FDPs that 

begin early in the morning or end late 

in the evening. 

UPS stated that because the FDP 

limits are determined by actual pilot 

reporting time and not the pilot’s 

scheduled reporting time, air carriers 

are put in an untenable position of 

having to track the fluctuating and 

unpredictable FDPs of individual pilots. 

The Aerospace Medical Association 

(AMA) asserted that the different FDP 

limits were inefficient and would crowd 

departure times at busy airports. AMA 

suggested that, instead of changing FDP 

limits based on reporting time, duty 

time that takes place during the window 

of circadian low be counted as timeand-a-half or double time. APA 

suggested that FDP limits not be 

associated with specific reporting times, 

but that they instead be determined 

through a linear function, which could 

then be utilized by modern scheduling 

software. This approach, APA argued, 

would be better than the FAA-suggested 

approach in which a 1-minute reporting 

difference can result in a 1-hour FDP 

limit difference. 

The FAA has determined that an 

approach to daily FDP limits that 

requires a linear function or 

mathematical computations in order to 

determine the applicable limit would be 

unduly complex. Under the FAA’s 

approach to Table B, a flightcrew 

member can determine his or her FDP 

limit simply by finding the cell in Table 

B that applies to his or her scheduled 

FDP. Given that some commenters find 

even this approach to be unduly 

complex, the FAA has decided not to 

add any more complexity to this 

section. 

In response to UPS’ concern, the FAA 

clarifies that FDP limits are determined 

by scheduled reporting time and not by 

actual reporting time. Thus, an air 

carrier can determine a flightcrew 

member’s maximum FDP limit simply 

by looking at that flightcrew member’s 

schedule. The labels for Tables B and C 

are amended to clarify that the 

applicable limits are based on 

scheduled start time. 

The FAA also emphasizes that FDP is 

defined as beginning at the time that a 

flightcrew member is ‘‘required’’ to 

report for duty. Thus, if a flightcrew 

member is late for an FDP, the FDP 

begins to run at the time that the 

flightcrew member was scheduled to 

report for an FDP, not the time that he 

or she actually reported for the FDP. 

Aloha Air Cargo (AAC) recommended 

upward modifications to the proposed 

maximum FDPs. At AAC, flightcrews 

report for night flight duty between 

1935 and 2142 local time and end at 

0700 each morning. To support 

flightcrew rest periods occurring at the 

same time each day, AAC schedules its 

crews to assure that flightcrews 

complete their duty by 0700 each 

morning. This system naturally reduces 

the FDP for later report times without 

artificially constricting earlier report 

times. AAC has evaluated this fatigue 

mitigation process for over nine months 

through daily reviews of FRMP crew 

data, and through selective crew 

debriefs when FRMP data results 

flagged elevated fatigue risk. AAC 

asserted that this method has proven to 

be more reliable in mitigating fatigue 

risk within AAC’s flight operation than 

the FAA’s current proposal. Therefore, 

AAC recommended that the FAA 

consider the table below as an 

alternative to the proposed table, and 

that the FAA include ‘‘Time of 

Completion’’ (the end of the FDP) as an 

additional criterion to support adequate 

rest in consideration of the flightcrew’s 

circadian rhythms. 

Time of start (home base or acclimated) 

Maximum flight duty period (hours) 

for lineholders based on number of flight segments 

1 2 3 4 5 6 7+ 

1300–1659 ......................................................................................... 12 12 12 12 11 .5 11 10 .5 

1700–2159 ......................................................................................... *12 *12 *11 *11 *10 .5 *10 *10 

2200–2259 ......................................................................................... *11 .5 *11 .5 *10 .5 *10 .5 *10 *10 *9 .5 

2300–2359 ......................................................................................... *10 .5 *10 .5 *10 *10 *9 .5 *9 .5 *9 

* Proposed changes. 

The FAA has declined to adopt AAC’s 

suggestion of requiring FDPs to 

terminate at a certain time. This rule 

applies to many different air carriers 

with differing business models, and the 

approach taken by AAC may not work 

for an air carrier conducting 

supplemental operations whose 

schedule is subject to the demands of its 

clients. In order to take into account the 

diverse business models subject to this 

rule, the FAA has chosen not to include 

a ‘‘Time of Completion’’ as part of its 

FDP restrictions. The FAA notes that, 

because Table B sets higher FDP limits 

for FDPs that begin earlier in the 

evening, AAC will be able to retain its 

existing business model if it opts to 

operate its all-cargo operations under 

part 117 so long as each scheduled FDP 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 359 

complies with the limits set out in Table 

B. 

Turning to the specific FDP limits 

proposed by AAC, the FAA has chosen 

not to make further upward adjustments 

to FDPs in the 1700 to 2359 timeframe. 

FDPs that begin during this timeframe 

will infringe on the WOCL, and, as 

discussed above, this infringement 

raises significant safety concerns. 

NACA and a number of other 

commenters stated that the limits in the 

proposed Table B unduly focus on 

domestic scheduled service and do not 

recognize the needs of non-scheduled 

operations currently flown under 

Subpart S. These commenters suggested 

the following alternative to the FAAproposed Table B: 

Time of start 

Acclimated segments 

1–4 5 6 7+ 

0000–0559 ....................................................................................................... 12 11 10 9 

0600–1159 ....................................................................................................... 14 13 12 11 

1200–1259 ....................................................................................................... 13 12 11 10 

1300–2359 ....................................................................................................... 12 11 10 9 

The SkyWest Airlines Pilot 

Association similarly asked the FAA to 

increase the FDP limits to avoid 

disproportionately impacting regional 

air carrier pilots. SkyWest Airlines 

stated that the proposed FDP limits 

would significantly increase its 

operating expenses, as well as the 

amount of time that its flightcrew 

members spend resting away from 

home. SkyWest, NAA, and Northern Air 

Cargo suggested that the FAA permit air 

carriers to schedule FDPs that are either 

12 or 14 hours, depending on whether 

they infringe on the window of 

circadian low. Allegiant also supported 

permitting a 14-hour FDP for FDPs that 

included two or less flight segments. 

Conversely, American Airlines and 

American Eagle Airlines supported the 

FDP limits set out in Table B. The 

Families of Continental Connection 

Flight 3407 also endorsed the maximum 

13-hour FDP limit, asserting that it 

effectively limits the fatigue exposure of 

regional airline pilots. APA supported 

the 13-hour maximum FDP limit, citing 

studies showing a higher likelihood of 

an accident for each additional hour 

worked, a conclusion supported by the 

crash of American Airlines Flight 1420, 

in which fatigue was a causal factor, and 

which occurred at the 13:06 point in the 

flightcrew members’ FDP. APA added 

that duty days that exceed 13 hours 

could result in flightcrew members 

being awake for 16 to 17 hours before 

the beginning of their FDP. APA cited 

a study showing that a person who has 

been awake for 17 hours exhibits the 

same level of performance as a person 

who is legally drunk. NJASAP 

expressed concern over increasing the 

maximum FDP limits, citing a NASA 

study in which a poll of corporate pilots 

revealed fatigue concerns for duty time 

over 8 and 10 hours. 

Due to the WOCL considerations 

discussed above, the FAA has declined 

the suggestion by air carriers conducting 

supplemental operations to increase 

nighttime FDP limits to 12 hours. 

However, the FAA notes that these 

concerns do not apply to daytime FDPs 

that begin in the morning, especially 

since flightcrew members’ time on task 

is restricted by the flight time limits of 

Table A. As such, and in response to the 

comments made by regional carriers, 

and those conducting only 

supplemental passenger operations, the 

FAA has made upward adjustments to 

some of the FDP limits in Table B. 

First, the FAA has increased the oneand two-segment FDP limits in the 0600 

to 0659 timeframe from 12 to 13. 

However, the FAA did not further 

increase the FDP limits for FDPs with 

four or less segments in this timeframe 

to 14 hours (as the supplemental 

carriers suggested) because an early 

morning FDP that starts between 0600 

and 0659 does not start during peak 

circadian alertness. As such, without 

additional FRMS-provided data, the 

FAA cannot justify permitting longer 

multi-segment early morning FDPs. 

Second, the FAA has increased most 

of the FDP limits in the 0700 to 1659 

timeframe to reflect the limits suggested 

by NACA’s proposal. The reason for this 

increase is that the FDPs in this 

timeframe mostly take place during the 

day and do not infringe on the WOCL. 

Given the 8 and 9-hour flight time 

restrictions contained in Table A, the 

FAA has determined that an increase to 

the FDP limits in the 0700 to 1659 

timeframe would not have a detrimental 

effect on safety. 

It should also be noted that, in the 

0700 to 1159 timeframe, the FAA has 

only allowed one- and two-segment 

FDPs to go to 14 hours. The reason that 

the FAA did not follow NACA’s 

suggestion of allowing three- and foursegment FDPs to be 14 hours long is 

because, as discussed above, additional 

flight segments increase fatigue. Since a 

14-hour FDP is a very long FDP, the 

FAA has chosen to disallow 14-hourlong multi-segment FDPs without 

additional data showing that a multisegment FDP greater than 2 segments of 

this duration does not decrease safety. 

The FAA has also chosen not to increase 

the FDP limit to 14 hours for FDPs that 

begin after 1159 because this type of 

increase would result in more FDPs 

infringing on the WOCL. 

Third, the FAA has reevaluated the 

FDP limits in the 1700 to 2359 

timeframe and has made slight upward 

adjustments to those limits to reflect the 

safety mitigation provided by the time 

on task restrictions of Table A. These 

adjustments are not as high as the 

supplemental air carriers recommended 

because FDPs that begin during these 

times infringe on the WOCL. 

The FAA has considered the concern 

raised by APA, NJASAP, and the 

Families of Continental Connection 

Flight 3407 about raising the maximum 

FDP limit above 13 hours. However, 

there are a number of reasons why the 

FAA considers a 14-hour FDP limit for 

FDPs that begin in the morning to be 

safe. First, most of the 14-hour FDP 

would take place during the day after a 

flightcrew member has had a full night’s 

sleep and thus, this type of FDP does 

not raise any circadian-rhythm 

concerns. 

Second, the flight time restrictions in 

Table A have been adjusted downward 

to 9 hours in order to restrict the 

amount of time on task that a flightcrew 

member can be subjected to in a 

14-hour FDP. Thus, a flightcrew 

member in a 14-hour FDP can only be 

asked to fly an aircraft for 9 of those 

hours, and the remaining 5 hours must 

be spent on non-flight activities. The 

FAA notes that the studies cited by APA 

in support of a 13-hour-maximum FDP 

limit did not impose any time-on-task 

(flight-time) restrictions. The FAA 

agrees with APA that a 14-hour 

unaugmented FDP in which a flightcrew 

member spends the entire 14 hours 

flying an aircraft would be unsafe, 

which is why, as discussed more fully 


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48See Folkard, supra note 15, at 98. 

elsewhere, the FAA has decided to 

retain the flight-time limits set out in 

Table A. 

Finally, the cumulative limits in this 

rule limit the frequency at which an air 

carrier can assign long FDPs to its 

flightcrew members. For example, under 

the 60-hour weekly FDP limit set out in 

section 117.23(c)(1), if an air carrier 

insists on repeatedly assigning a 14- 

hour FDP to its flightcrew members, 

those flightcrew members will reach 

their weekly FDP limit after slightly 

more than four days of work, and will 

be unable to accept an FDP for the 

remainder of the week. Under the 190- 

hour monthly FDP limit set out in 

section 117.23(c)(2), if an air carrier 

regularly assigns 14-hour FDPs, its 

flightcrew members will reach their 

monthly limits after slightly over 13 

days, and will be unable to accept an 

FDP for the remainder of the month. 

Thus, the cumulative FDP limits 

contained in section 117.23(c) severely 

limit the frequency at which air carriers 

can assign the longer FDPs permitted by 

Table B. Given these numerous 

safeguards, a 14-hour FDP that consists 

of only one or two flight segments and 

takes place during peak circadian times 

does not raise significant safety 

concerns. 

UPS objected to basing the FDP limits 

for an unacclimated flightcrew member 

on the time at that flightcrew member’s 

home base. UPS stated that, under this 

approach, an unacclimated flightcrew 

member could be assigned a long FDP 

during a local night. UPS added that the 

FAA’s acclimation approach does not 

take into account flightcrew members 

who change their acclimation status 

mid-pairing. UPS provided an example 

of an international flight arriving early 

and, as a result, the flightcrew on that 

flight having enough time in a new 

theater to unexpectedly become 

acclimated. Because this unexpected 

acclimation could lead to a reduced FDP 

limit for the return trip, UPS argued that 

this type of scenario was ‘‘patently 

absurd’’ because in this scenario a 

flightcrew that unexpectedly received 

additional rest would be subjected to a 

lower FDP limit. 

In response, the FAA notes that this 

section does not determine 

unacclimated flightcrew members’ FDP 

limits based on local time. This is 

because the circadian rhythm of 

flightcrew members who are 

unacclimated is not synchronized to the 

theater in which they are operating. 

Consequently, in order to accurately 

take into account each flightcrew 

member’s WOCL and general circadian 

rhythm, this section determines FDP 

limits based on the local time at the 

theater with which a flightcrew 

member’s circadian rhythm is 

synchronized. 

With regard to mid-pairing 

acclimation, the FAA has amended the 

language in section 117.13(b)(2) to state 

that an unacclimated flightcrew 

member’s FDP limit is determined by 

the local time at the theater in which 

that flightcrew member was last 

acclimated. The reason for this change 

is that a flightcrew member may be 

away from his or her home base for a 

significant amount of time. If that 

happens, the flightcrew member’s 

circadian clock will not be 

synchronized with his or her home base, 

but rather, with the theater in which he 

or she was last acclimated. 

Turning to UPS’ scenario, it is indeed 

possible that a flightcrew member who 

arrives in a new theater unexpectedly 

early will experience unanticipated 

acclimation. Depending on the local 

hours, this acclimation may reduce that 

flightcrew member’s FDP limit for the 

return trip. The reason for this reduction 

is that the longer amount of time that 

this flightcrew member will spend intheater will result in his or her body 

becoming synchronized with the local 

time in that theater. Once this 

synchronization takes place, the 

flightcrew member will experience the 

circadian penalties associated with 

working during non-peak local times. 

As such, this rule prevents acclimated 

flightcrew members from accepting 

longer FDPs during non-peak local 

times. This result is not ‘‘patently 

absurd’’ because the shorter FDPs that 

may stem from unexpected acclimation 

are not a result of longer rest, but rather, 

a result of more time that a flightcrew 

member spends in-theater. 

NACA and NAA also stated, without 

elaboration, that when a pilot is 

unacclimated, the FDP in Table B 

should be decreased by one hour 

instead of half an hour. The 30-minute 

FDP-limit reduction for unacclimated 

flightcrew members was imposed to 

account for the additional fatigue 

experienced by these flightcrew 

members. However, at this time, the 

FAA is unaware of any reasons for 

increasing this reduction to one hour. 

NJASAP sought clarification of how 

acclimation is determined when a 

flightcrew is made up of flightcrew 

members who are based in different 

time zones. In response, the FAA 

emphasizes that acclimation and FDP 

limits are specific to each flightcrew 

member. As such, the unacclimated 

flightcrew members on a flightcrew are 

subject to subsection (b) of this section. 

However, the acclimated flightcrew 

members on that flightcrew are only 

subject to subsection (a) of this section. 

Drs. Belenky and Graeber criticized 

the maximum FDP limits for not taking 

into account onboard rest facilities, 

which, they argued, allowed a 

flightcrew to obtain rest onboard the 

aircraft prior to descent. Boeing also 

endorsed the concept of controlled 

napping. AMA stated that controlled incockpit naps should be ‘‘vigorously 

encouraged,’’ but should not be allowed 

to increase the maximum FDP. In 

response, the FAA notes that there is 

currently insufficient data about 

whether a controlled nap could safely 

be taken by a flightcrew member during 

an actual unaugmented flight. As such, 

the FAA is not prepared to regulate for 

controlled napping as a mitigation 

measure at this time. Once more data 

becomes available, the FAA may 

conduct a rulemaking to add controlled 

napping to the flight, duty, and rest 

regulations. 

NACA and NAA stated that the timeof-day windows in Tables A and B are 

not synchronized. However, the reason 

that Tables A and B are not 

synchronized is that Table B uses many 

different FDP limits ranging from 9 to 14 

hours, and multiple rows were 

necessary to clearly distinguish each 

different set of FDP limits. Table A, on 

the other hand, only uses 8 and 9 hours 

as flight time limits, and as such, fewer 

rows were necessary to clearly convey 

the flight time limits for each phase of 

the day. 

G. Flight Time Limitations 

As discussed above, studies indicate 

that if a person works for longer than 8 

or 9 hours, the risk of an accident 

increases exponentially for each 

additional hour worked.48 Given this 

data, the FAA was hesitant to eliminate 

current flight time regulations, which 

generally limit flightcrew members to 8 

hours of flight time regardless of the 

time of day. Thus, instead of relying 

solely on FDP limits to regulate acute 

fatigue, the FAA proposed flight time 

limits ranging from 8 to 10 hours 

(depending on the time of day) for 

unaugmented flights. The FAA also 

proposed a 16-hour flight time 

limitation for augmented flights. 

ATA, NACA, CAA, RAA, and 

multiple air carriers objected to 

including daily flight time limits in this 

rule. ATA, RAA, International Air 

Transport Association (IATA), and a 

number of other commenters argued 

that the daily flight time limits were 

arbitrary, not scientifically justified, 

inconsistent with leading international 


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49See id.; John A. Caldwell, Fatigue in aviation, 

Travel Medicine and Infectious Disease, 3, at 88– 

90 (2005). 

50The FAA also notes that the near-total lack of 

consensus among ARC members as to the 

appropriate levels to adopt indicates that the ARC 

members understood that the FAA could not 

assume either industry or labor support of all 

aspects of its proposal. 

51See supra note 50. 

standards, operationally unwieldy, 

unduly burdensome to carriers, and 

against the public interest. 

The above commenters stated that the 

daily flight time limits were 

unnecessarily redundant. The 

commenters emphasized that this rule 

creates a large number of regulatory 

limitations, and an additional limitation 

on flight time limits only unnecessarily 

adds complexity to this rule. These 

commenters stated that flight time is 

considered to be part of an FDP, and 

thus, flight time is subject to the FDP 

limits. The commenters emphasized 

that being awake is what causes fatigue, 

and this fatigue factor is addressed 

through FDP limits better than through 

flight time limits. 

ATA stated that this rule also 

indirectly regulates flight times through 

mandatory rest periods because a 

flightcrew member cannot fly an aircraft 

during a rest period. UPS stated that 

industry ARC members’ acceptance of 

FDP limits was predicated on the 

abolition of flight-time limits. 

In filed comments Drs. Belenky and 

Graeber stated that there was no 

justification for flight time limits in 

addition to FDP limits apart from 

regulating for ‘‘differences in 

workload.’’ Drs. Belenky and Graeber 

stated that the differences in workload 

are taken into account in the FDP limits 

through the different limitations on 

circadian timing and the number of 

flight segments. As such, Drs. Belenky 

and Graeber concluded that there was 

no remaining justification for retaining 

flight time limits in this rule. ATA, 

CAA, and a number of air carriers 

supported Drs. Belenky and Graeber’s 

analysis. 

ATA, IATA, CAA, and a number of air 

carriers noted that other regulatory 

regimes, such as CAP–371 and EU OPS 

subpart Q, have largely eliminated the 

concept of daily flight-time limits. 

These commenters argued that this 

demonstrates that a flight-time limit is 

unnecessary, and that imposing this 

limit on U.S. carriers will make them 

less competitive with carriers operating 

under other regulatory regimes. The 

commenters asked the FAA to eliminate 

the daily flight-time limit to make this 

rule more consistent with the other 

regulatory regimes. 

Conversely, NJASAP, AAC, and a 

number of labor groups supported the 

flight time limits. NJASAP emphasized 

that ‘‘[m]ultiple stressors are present in 

flight operations such as weather and 

[air traffic control] that take a 

cumulative toll on fatigue levels.’’ 

In response, the FAA notes that 

existing regulations generally limit 

flight time to 8 hours. Studies have 

shown that fatigue accumulated by 

working longer than 8 or 9 hours 

significantly increases the risk of an 

accident.49 Given this data, the FAA 

needs to ensure that flightcrew members 

are not permitted to fly an aircraft for 

longer than 8 or 9 hours. This rule 

accomplishes this goal by setting flighttime limits at 9 hours for peak circadian 

times, and 8 hours for all other times. 

As the industry commenters correctly 

pointed out, the FDP limits in this rule 

also limit flight time. However, 

abolishing flight-time limits and relying 

solely on FDP limits to regulate flight 

time poses a significant problem. This 

problem arises from the fact that the 

FDP limits do not differentiate between 

flight time and non-flight activities. For 

example, if a flightcrew member spends 

5 total hours flying an aircraft and 4 

hours sitting in an airport on a layover, 

that flightcrew member’s FDP is 9 

hours. However, if another flightcrew 

member spends 8 total hours flying an 

aircraft and 1 hour sitting in an airport 

on a layover, that flightcrew member’s 

FDP is also 9 hours. Thus, the FDP 

limits would treat the above two 

flightcrew members identically, even 

though one of them spent an additional 

3 hours engaged in the more fatiguing 

activity of flying an aircraft. 

To resolve the above problem and 

differentiate between flight time and 

less-fatiguing non-flight activity 

conducted on behalf of the certificate 

holder, the FAA has decided to impose 

flight-time limits in addition to FDP 

limits. Setting flight-time limits at 8 or 

9 hours ensures that flightcrew members 

do not fly an aircraft for longer periods 

of time. This also allows the FAA to 

provide air carriers with more 

scheduling flexibility by setting higher 

FDP limits because with flight-time 

limits in place, longer FDPs will simply 

include more non-flight activities 

instead of longer flight times. 

An alternative approach that the FAA 

considered was eliminating flight-time 

limits, and setting lower FDP limits to 

ensure that flightcrew members do not 

fly an aircraft for longer than 8 or 9 

hours. However, the FAA ultimately 

rejected this approach because it would 

have resulted in peak-circadian-time 

FDP limits of approximately 10 or 11 

hours, which would have greatly 

hampered the scheduling flexibility of 

air carriers. This approach also would 

have unnecessarily limited non-flight 

activities, which are generally not as 

fatiguing as flying an aircraft. 

The FAA also considered ATA’s 

comment that rest requirements 

indirectly limit flight time. However, 

the problem with relying solely on rest 

requirements to regulate flight time is 

the same as the problem with relying 

solely on FDP limits—neither provision 

differentiates between non-flight and 

flight activities. In addition, the 

proposed rest requirements do not even 

closely approximate levels that would 

effectively limit flight time to acceptable 

levels. As such, the FAA has chosen not 

to use the rest requirements in this rule 

as a replacement for flight-time limits. 

Turning to UPS’ comment that 

industry ARC members’ acceptance of 

FDP limits was predicated on the 

abolition of flight-time limits, the FAA 

notes that the ARC’s recommendations 

are advisory.50 Thus, for example, in 

response to industry concerns that were 

raised in the comments, the FAA has 

increased some of the FDP limits in 

Table B beyond the levels suggested by 

the ARC members. Similarly, to address 

scientific data showing that the risk of 

an accident greatly increases after a 

person has worked for 8 or 9 hours,51

the FAA has decided to set firm flighttime limits to ensure that flightcrew 

members do not fly an aircraft for longer 

than 8 or 9 hours. 

As Drs. Belenky and Graeber correctly 

pointed out, the number of flight 

segments flown by a flightcrew member 

is taken into account by the FDP limits. 

However, while takeoffs and landings 

associated with multiple flight segments 

are the most task-intensive portions of a 

flight, they are not the only taskintensive portion of the flight. When 

flying an aircraft after takeoff, a 

flightcrew member must, among other 

things, keep track of weather patterns, 

communicate with air traffic control, 

and respond to unforeseen 

developments that may arise during the 

flight. All of these tasks (as well as the 

constant alertness needed to perform 

these tasks) increase fatigue, and they 

are not fully taken into account by the 

FDP limits, which do not distinguish 

between a flightcrew member flying an 

aircraft and a flightcrew member sitting 

at an airport during a layover. To 

account for these fatigue-inducing tasks, 

the FAA has decided to retain flighttime limits in this rule. 

Turning to the foreign aviation 

standards cited by some of the 

commenters, the FAA notes that the 


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52EU Rules, Subpart Q, OPS 1.1100, section 1.3 

and OPS 1.1110, section 1.1. 

53See, e.g., EU Rules, Subpart Q, OPS 1.1100, 

section 1.2. 

54See id.; CAP–371, section 21.1. 

55See Folkard, supra note 15, at 98. 

56 Jeffrey H. Goode, Are pilots at risk of accidents 

due to fatigue?, Journal of Safety Research, 34, at 

311 (2003). 

57Caldwell, supra note 50, at 90. 

Administrative Procedure Act requires 

the FAA to consider the specific 

operating environment that it is 

regulating instead of simply following 

the foreign standards. The FAA notes 

that while other regulatory regimes have 

eliminated daily flight-time limits, the 

elimination of these limits has resulted 

in more stringent requirements 

elsewhere. For example, EU OPS 

subpart Q sets the maximum FDP limit 

at 13 hours and requires 12 hours of rest 

between FDP periods.52 This rule, on 

the other hand, sets a maximum FDP 

limit at 14 hours (for peak circadian 

times) and requires a rest period of only 

10 hours between FDP periods. One of 

the reasons why some provisions of this 

rule are less stringent than their EU OPS 

counterparts is because this rule 

contains a daily flight-time limit that 

regulates how long flightcrew members 

can fly an aircraft. 

The FAA also notes that the other 

regulatory regimes did not completely 

eliminate flight-time limits. While other 

regulations do not contain daily flighttime limits, many of them still retain 

cumulative flight-time limits.53 These 

cumulative flight-time limits are 

significantly lower than the cumulative 

flight-time limits imposed by this rule.54

Over 1,300 individual commenters 

objected to the proposed 10-hour flighttime limit for the 0700–1259 timeframe. 

These commenters emphasized that the 

10-hour limit constitutes a 25% flight 

time increase over existing limitations, 

and as such, will increase fatigue. A 

number of commenters stated that flight 

time limitations should not be greater 

than 8 hours. NJASAP emphasized that 

existing regulations limit flight time to 

8 hours, and, given studies that show 

the risk of an accident increasing 

exponentially for each additional hour 

worked, there is no reason to increase 

the existing flight-time limits. The 

Families of Continental Connection 

Flight 3407, Captain Sullenberger, 

International Brotherhood of Teamsters 

(IBT) Local 1224, and multiple labor 

groups stated that there are no scientific 

findings supporting an increase in flight 

time to 10 hours, and that this type of 

increase should be permitted only if it 

is supported by FRMS-provided data. 

NTSB cautioned the FAA about 

increasing flight-time limits to 10 hours 

without first studying adverse 

consequences that could result from this 

increase. Many of the above commenters 

recommended reducing the 10-hour 

flight-time limit to 9 hours, emphasizing 

that this would still be a 12.5% increase 

over existing flight-time restrictions. A 

number of labor groups recommended 

that the early morning and late evening 

flight-time limits be reduced to 7 hours 

‘‘to reflect the unanimous view of the 

ARC.’’ 

Conversely, RAA stated that there is 

no scientific evidence that a small 

increase in the current flight time limits 

would adversely affect safety. SkyWest 

objected to decreasing the flight time 

limits, arguing that it would impose 

additional hardships upon air carriers. 

Delta stated that increasing flight time 

limits beyond 8 hours is safe because 

the maximum FDP limits reduce the 

amount of time that flightcrew members 

spend at work. 

The FAA agrees with the 

overwhelming number of commenters 

who stated that a 10-hour flight-time 

limit is not justified by current scientific 

data. A series of studies examining the 

national accident rate has shown that 10 

hours spent at work pose a much greater 

risk of an accident than 8 or 9 hours 

spent at work.55 A study examining the 

number of aviation accidents 

determined that ‘‘[f]or 10–12 hours of 

duty time, the proportion of accident 

pilots with this length of duty period is 

1.7 times as large as for all pilots.’’ 56

Another study found that ‘‘20% of all 

U.S. commercial aviation mishaps 

appear to occur at the 10th hour [of pilot 

duty] and beyond.’’ 57 Because scientific 

data shows that the risk of an accident 

substantially increases when a person’s 

time on task is 10 hours, the FAA has 

decided to limit flight-time that begins 

during 0700–1259 to 9 hours. 

The FAA has also decided not to 

reduce any of the proposed 9-hour 

flight-time limits to 8 hours. The 

existing regulations impose an acrossthe-board 8-hour flight-time limit. 

However, that limit regulates to the 

lowest common denominator because it 

does not take into account the fact that 

people are capable of safely working 

longer hours during periods of peak 

circadian alertness. Accordingly, this 

rule retains the 8-hour flight-time limit 

for shifts encompassing non-peak 

circadian times, but increases the flighttime limit to 9 hours for shifts 

encompassing periods of peak circadian 

alertness. 

Turning to comments about the ARC 

recommendations, the FAA notes that 

the ARC’s recommendations are 

advisory and there was no consensus on 

the hourly limitations with industry 

generally supporting more generous 

limits and labor generally supporting 

more restrictive limits. The existing 

regulations impose an 8-hour flight-time 

limit, and the FAA has been 

administering this limit for over 50 

years. Based on its operational 

experience, the FAA does not believe 

that an 8-hour flight-time limit for nonpeak circadian times is unsafe, 

especially if that limit is based on actual 

and not scheduled flight time. As such, 

the FAA has decided not to decrease 

any of the flight-time limits below 8 

hours. 

ATA, IATA, UPS, United, and a 

number of other air carriers also 

objected to the lack of an extension for 

daily flight-time limits. These 

commenters stated that an inflexible 

daily flight time limit would severely 

restrict scheduling because air carriers 

would have to build in large scheduling 

buffers to account for unforeseen 

circumstances occurring after takeoff. 

IATA emphasized that the prohibition 

on continuing an FDP that exceeds the 

flight-time limits may result in 

flightcrew members unsafely rushing to 

complete preflight activities to avoid 

violating the flight time limits. UPS 

stated that, without a flight time 

extension, unforeseen delays could 

leave crews stranded in international 

destinations. United asserted that an 

inflexible flight-time limit may, as a 

result of unforeseen delays, result in 

cancellations of multi-leg itineraries 

after some of the legs have been 

completed. Southwest stated that large 

numbers of flights would be disrupted 

by an inflexible flight-time limit because 

small delays would eventually build up 

during the day, and these would require 

air carriers to cancel flights in order to 

comply with the rigid flight-time limits. 

The above commenters suggested that 

flight time limits be based on scheduled 

and not actual flight time. 

Conversely, ALPA, FedEx ALPA, IBT 

Local 1224, and a number of other labor 

groups supported the lack of a flighttime extension, arguing that air carriers 

currently do not build sufficient buffers 

into their schedules. These commenters 

stated that air carriers currently 

schedule flights up to the last 

permissible limit of flight time, even 

when the air carriers know that a high 

possibility of a delay makes their 

schedules unrealistically optimistic. 

These commenters emphasized that an 

inflexible flight-time limit was 

particularly important in this case 

because this rule does not have a 

compensatory rest provision. 


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58See Folkard, supra note 15, at 98. 

59 If the destination is unavailable, the aircraft 

would land at the designated alternate airport. 

60The ‘‘FDP Extensions’’ section contains a more 

detailed discussion of the reporting requirements 

that apply to flightcrew members who exceed the 

applicable FDP and/or flight-time limits. 

61Citing Colquhoun, P., Psychological and 

Psychophysiological Aspects of Work and Fatigue, 

Activitas Nervosa Superior, 1976, 18:257–263. 

The flight-time limits apply to actual 

and not scheduled flight time because 

actual flight time is what impacts safety. 

Flight-time calculations are based on the 

en route times contained in the flight 

plan. Once a flightcrew member flies an 

aircraft for a certain amount of time, that 

flightcrew member’s risk of being 

involved in an accident increases 

exponentially for each additional hour 

worked.58 This exponential increase in 

risk is based on actual hours worked 

and not the hours that someone was 

scheduled to work. Thus, a flightcrew 

member who flies an aircraft for 11 

hours does not have a lower risk of an 

accident simply because he or she was 

scheduled to fly the aircraft for only 9 

hours. In order to account for the factors 

that control accident risk, the flight-time 

limits in this rule are based on actual 

and not scheduled flight time. 

Turning to the concerns expressed by 

industry commenters, the FAA notes 

that air carriers currently utilize 

schedules that are unrealistically 

optimistic and do not include sufficient 

buffers for unforeseen circumstances. It 

has been the FAA’s experience that an 

air carrier subject to an 

8-hour scheduled flight-time limit will 

sometimes schedule a flight that, on 

paper, lasts 7 hours and 59 minutes 

when the air carrier knows that the 

actual flight will likely take well over 8 

hours to complete. Because many 

current air carrier schedules are 

unreasonably optimistic, air carriers can 

prevent many of the pre-takeoff 

situations listed in their comments 

simply by incorporating reasonable 

buffers for unforeseen circumstances 

into their scheduling practices. 

However, in evaluating the above 

comments, the FAA noted that different 

considerations apply after an aircraft 

has taken off. If unexpected 

circumstances significantly increase the 

length of the flight while an aircraft is 

in the air, the only way for a flightcrew 

member to comply with the flight-time 

limits imposed by this rule would be to 

conduct an emergency landing instead 

of piloting the aircraft to its intended 

destination. Because this is not the 

preferred method of complying with 

flight-time limits, the FAA has amended 

this section to provide a post-takeoff 

flight-time extension to the extent 

necessary to safely land the aircraft at its 

intended destination airport 59 if 

unexpected circumstances occur after 

takeoff. To monitor the use of this posttakeoff extension, the FAA is requiring 

certificate holders to report their 

flightcrew members who exceed the 

flight-time limits and describe the 

circumstances surrounding the 

exceeded flight time.60

The FAA emphasizes that this 

extension only applies to unexpected 

circumstances that arise after takeoff. If 

a flightcrew member becomes aware, 

before takeoff, that he or she will exceed 

the applicable flight-time limit, that 

flightcrew member may not take off, and 

must return to the gate. 

One hundred sixty-seven individual 

commenters opposed increasing the 

augmented flight-time limit to 16 hours. 

AMA supported the 16-hour flight-time 

limit for augmented operations, stating 

that peer review studies and SAFTE/ 

FAST modeling show that after 16 hours 

on duty crew performance falls off 

dramatically.61 NJASAP stated that 

flight-time limitations are necessary for 

augmented operations, and that use of 

an FRMS to extend maximum flight 

times should be subject to high levels of 

scrutiny and oversight. Conversely, 

Continental asked that augmented FDPs 

be allowed to exceed the 16-hour flighttime limit. Atlas Air stated that, for 

some augmented FDPs, the 16-hour FDP 

flight time would exceed the applicable 

FDP limit. 

Continental submitted supplemental 

comments objecting to the 16-hour flight 

time limit for augmented flights. 

Continental objected to this limitation 

on ultra long range (ULR) flights, and it 

submitted new studies, which it 

claimed showed that ULR flights do not 

pose additional fatigue risk. ALPA 

submitted a response to Continental’s 

supplemental submission, pointing out 

that ‘‘[f]lights over 16 hours block 

conducted by U.S. carriers are rare so 

there is only limited actual experience 

with the fatigue factors of such flights.’’ 

ALPA also asserted that the studies 

submitted by Continental were actually 

a single study (based on the 

composition of the subjects), and that 

the study suffered from a number of 

biases, including an age, gender, and 

volunteer participation. ALPA also 

stated that the sample size that the 

study examined was too small to 

provide meaningful data for a systemwide standard. 

A 16-hour flight-time limit was 

proposed for augmented operations 

because, for a four-pilot crew working in 

shifts of two, a 16-hour flight time 

supposes that each pilot will be at the 

duty station for about 8 hours. In 

response to industry comments, the 

FAA has concluded that a slight 

increase of the limit for four-pilot 

augmented FDPs would not impact 

safety. As such, the augmented flighttime limit for a four-pilot crew has been 

increased to 17 hours. Seventeen hours 

was selected as the limit because each 

member of a four-pilot crew that works 

on a 17-hour flight in shifts of two 

would only be at the duty station for 

8.5 hours. Eight and a half hours of 

manning the duty station falls within 

the 8-to-9-hour flight-time range that, as 

discussed above, the FAA considers to 

be safe. 

Upon reevaluation of the augmented 

flight-time limit, the FAA has also 

concluded that a separate flight-time 

limit is necessary for a three-pilot 

flightcrew. This is because if a threepilot crew works in shifts of two on a 

17-hour flight, each flightcrew member 

will be at the duty station for 

approximately 11 hours. Because this 

falls outside the 8-to-9-hour flight-time 

range that the FAA considers to be safe, 

the flight-time limit for three-pilot 

augmented flightcrews has been 

reduced to 13 hours. A 13-hour flighttime limit ensures that each member of 

a 3-pilot crew only needs to be at the 

duty station for approximately 

8.5 hours. 

Turning to Continental’s 

supplemental comment, as ALPA 

correctly pointed out, there are 

currently very few flights that exceed 16 

hours of flight time, and as such, there 

is little data concerning the safety issues 

presented by these very long flights. The 

studies put forward by Continental are 

not particularly helpful in this regard 

because they analyzed a small sample of 

flights. Due to the small size of this 

sample, the data provided by these 

studies is not sufficient to justify further 

increasing the augmented flight-time 

limits. However, the FAA may relax the 

limits for ULR flights (through either an 

FRMS or a future rulemaking) if more 

data is provided showing that longer 

flight times do not adversely affect 

safety. 

H. Flight Duty Period—Augmented 

In formulating this rule, the FAA 

considered the fact that augmentation is 

currently used by air carriers to mitigate 

fatigue. An augmented flight is staffed 

by more than the minimally-required 

number of flightcrew members, and the 

extra staffing allows the flightcrew 

members to work in shifts and rest 

during the flight. Existing regulations 

allow higher flight times for augmented 

flights, and this allows air carriers to 

conduct longer flights. 


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364 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

62TNO Report at 19. 

Augmentation has three significant 

impacts on flight safety. First, flightcrew 

members on augmented flights work in 

shifts, and therefore, do not spend as 

much time engaged in the fatiguing task 

of piloting an aircraft. For example, on 

a 17-hour flight staffed by 4 flightcrew 

members working in shifts of 2, each 

flightcrew member will only be on the 

flight deck for approximately 8.5 hours. 

This is in contrast to unaugmented 

flights, in which each flightcrew 

member must be on the flight deck for 

the full length of the flight. 

Second, when they are not on the 

flight deck, flightcrew members on an 

augmented flight have access to an 

onboard rest facility, which will allow 

them to sleep during the flight. This inflight rest will, depending on the quality 

of the rest facility, help mitigate against 

some of the fatigue accumulated during 

the FDP. Third, the redundancy created 

by augmentation allows fatigued 

flightcrew members to ask for assistance 

from other flightcrew members. Thus, if 

a flightcrew member discovers, midflight, that he or she is unduly fatigued, 

that flightcrew member can ask one of 

the extra flightcrew members to take 

over his or her duties and safely land 

the aircraft at its intended destination. 

Because augmentation significantly 

mitigates fatigue, the FAA has found 

that longer FDPs can safely be permitted 

for augmented flights. In determining 

the specific FDP limits, the FAA took 

note of the recommendations set out in 

the TNO Report. The TNO Report was 

created to provide science-based advice 

on the maximum permissible extension 

of the FDP related to the quality of the 

available onboard rest facility and the 

augmentation of the flightcrew with one 

or two pilots. The TNO Report 

recommended that: (1) An aircraft with 

a Class I rest facility provide an FDP 

extension equal to 75% of the duration 

of the rest period; (2) an aircraft with a 

Class II rest facility provide an FDP 

extension equal to 56% of the duration 

of the rest period; and (3) an aircraft 

with a Class III rest facility provide an 

FDP extension equal to 25% of the 

duration of the rest period.62

Based on the TNO Report, the FAA 

proposed Table C, which set out 

separate FDP limits for augmented 

flights. These limits were generally 

based on the unaugmented FDP limits, 

and then were increased in accordance 

with the available rest facility by the 

TNO–Report-recommended extension. If 

a flightcrew member was unacclimated, 

the augmented FDP limits were reduced 

by 30 minutes, and the applicable FDP 

limits were determined based on the 

local time at the flightcrew member’s 

home base. Because augmented FDPs 

were generally intended to be used for 

longer flights, the proposal limited 

augmented FDPs to three flight 

segments. In addition, to ensure 

sufficient in-flight rest for augmented 

flightcrew members, the proposal would 

have required: (1) Two consecutive 

hours of in-flight rest during the last 

flight segment for flightcrew members 

who would be manipulating the 

controls during landing, and (2) ninety 

consecutive minutes of in-flight rest for 

all other flightcrew members. The 

proposal also would have required that 

at all times during flight, at least one 

flightcrew member with a PIC typerating must be alert and on the flight 

deck. 

Drs. Belenky and Graeber stated that 

‘‘there is no scientific basis for the 

different hours assigned as limits for 

different departure times.’’ They 

asserted that ‘‘[u]npublished alertness 

modeling data provided to the ATA 

(and presumably the ARC) 

demonstrated that a rest provided 

during the second half of a long-haul 

flight equal to (flight time minus two 

hours) divided by two produced roughly 

equivalent alertness regardless of time 

of departure.’’ Drs. Belenky and Graeber 

concluded that, based on the modeling 

data, there is no need to differentiate 

between the different departure times so 

long as in-flight rest was provided 

during the second half of the flight. 

ATA added that augmented flights 

departing later in the day would provide 

in-flight sleep during the WOCL for 

flightcrew members who would be 

manipulating the controls during 

landing, and thus, that in-flight sleep 

would be more restful. 

NACA and a number of air carriers 

who conduct supplemental operations 

submitted the following FDP limits as 

an alternative to the proposed Table C. 

NACA PROPOSED TABLE C TO PART 117—FLIGHT DUTY PERIOD: AUGMENTED OPERATIONS

Acclimated 

Maximum flight duty period (hours) based on rest facility and number 

of pilots 

Class 1 rest facility Class 2 rest facility Class 3 rest facility 

3 Pilots 4 Pilots 3 Pilots 4 Pilots 3 Pilots 4 Pilots 

0000–2359 ............................................................................................... 18 20 17 19 16 18 

The above proposal for augmented 

operations extends the flight duty 

period limits for augmented operations 

by four to six hours, depending on the 

number of pilots used and the type of 

rest facilities available onboard the 

aircraft. Because in-flight rest is 

provided through onboard rest facilities, 

the proposal made by the air carriers 

who conduct supplemental operations 

does not decrease a flightcrew member’s 

flight duty period limits when the pilot 

flies during the WOCL. 

UPS suggested that ‘‘four person 

augmented operations with a class one 

rest facility should provide a 16-hour 

FDP regardless of report time.’’ UPS 

asserted that this type of augmented 

FDP limit ‘‘would allow U.S.-based 

certificate holders to compete globally 

without an FRMS.’’ 

Atlas Air asserted that most of its 

augmented flights have FDPs lasting 

between 18 and 20 hours, many of 

which are single-stop and nonstop 

flights in support of AMC missions. 

Atlas Air stated that it would not be able 

to keep operating those flights under the 

limits set out in Table C. As such, Atlas 

Air suggested that the FAA increase the 

FDP limits in Table C. 

Conversely, ALPA, IPA, CAPA, Flight 

Time ARC, and other labor groups 

submitted the following alternative to 

the proposed Table C, arguing that, in 

applying the TNO Report, Table C 

utilized a rounding process ‘‘that 

doesn’t adequately represent the actual 

calculations used in the ARC process.’’ 


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63See, e.g., James K. Wyatt, et al., Circadian 

temperature and melatonin rhythms, sleep, and 

neurobehavioral function in humans living on a 20- 

h day, Am. J. Physiol. 277 (4), at R1160–62 (1999); 

Torbjorn Akerstedt & Mats Gillberg, The Circadian 

Variation of Experimentally Displaced Sleep, Sleep, 

Vol. 4, No. 2, at 159–69 (1981). 

REVISED TABLE C—FLIGHT DUTY PERIOD: ACCLIMATED AUGMENTED FLIGHTCREW

Time of start (local time) 

Maximum flight duty period (hours) based on rest facility and number 

of pilots 

Class 1 rest facility Class 2 rest facility Class 3 rest facility 

3 Pilots 4 Pilots 3 Pilots 4 Pilots 3 Pilots 4 Pilots 

0000–0559 ............................................................................................... 13:50 16:05 12:55 14:20 11:45 12:15 

0600–0659 ............................................................................................... 15:10 17:40 14:10 15:40 12:55 13:25 

0700–1259 ............................................................................................... 16 18 15:25 17:05 14 14:30 

1300–1659 ............................................................................................... 15:10 17:40 14:10 15:40 12:50 13:20 

1700–2359 ............................................................................................... 13:50 16:05 12:55 14:20 11:45 12:15 

APA criticized the proposed Table C 

for not applying the TNO Report’s 

rationale to the unaugmented FDP limits 

for the late evening and early morning 

hours. APA’s alternative to Table C had 

significantly lower FDP limits for the 

late evening and early morning hours. 

APA also stated that the TNO Report 

has not been validated in the aviation 

context, and that consequently, the FAA 

should proceed more cautiously in 

increasing the existing limits for 

augmented operations. 

Table C differentiates between 

different FDP departure times because 

of the type of rest that flightcrew 

members receive prior to beginning the 

FDP. As discussed in more detail below, 

section 117.25 requires a 10-hour rest 

period with a minimum 8-hour sleep 

opportunity immediately before a 

flightcrew member begins his or her 

FDP. Based on this requirement, 

flightcrew members who begin an FDP 

in the morning will obtain their pre-FDP 

sleep at night during the WOCL. 

Conversely, flightcrew members who 

begin an FDP later in the day or at night 

will obtain their pre-FDP sleep during 

the daytime. Because sleep taken at 

night during the WOCL is more restful 

than sleep taken during the day,63

flightcrew members who begin their 

FDP in the morning will be better rested 

than flightcrew members who begin 

their FDP later in the day or at night. 

Accordingly, Table C sets higher FDP 

limits for augmented FDPs that begin in 

the morning and lower FDP limits for 

augmented FDPs that begin later in the 

day or at night. 

In selecting the specific timeframes 

for Table C, the FAA was primarily 

concerned with the quality of pre-FDP 

rest obtained by the flightcrew 

members, and not with whether those 

flightcrew members’ FDP required them 

to work during the WOCL. This is 

because the redundancy inherent in an 

augmented operation ensures that there 

are extra flightcrew member(s) available 

to take over the duties of someone who 

becomes unduly fatigued during the 

WOCL. Since the timeframes of the 

unaugmented FDP limits in Table B 

were calibrated to ensure that 

unaugmented flightcrew members with 

long FDPs do not work during the 

WOCL, the specific timeframes of the 

augmented FDP limits in Table C 

(which address a different concern) are 

different from the timeframes of Table 

B. 

The FAA has considered Drs. Belenky 

and Graeber’s suggestion that, based on 

unpublished modeling data studying 

long-haul flights, there is no need to 

differentiate between the different 

departure times so long as in-flight rest 

was provided during the second half of 

the flight. The FAA notes that the 

modeling data cited by Drs. Belenky and 

Graeber relies on in-flight rest being 

provided during the second half of the 

flight. However, in order to provide 

operational flexibility to air carriers, this 

rule requires that only the pilot who 

will be flying the aircraft during landing 

receive his or her in-flight rest during 

the second half of the FDP. As such, the 

FAA is unpersuaded by the fatigue 

modeling data cited by Drs. Belenky and 

Graeber because that data does not take 

into account the fatigue levels of all the 

members of the augmented flightcrew. 

The FAA has also considered ATA’s 

argument that augmented flights leaving 

later in the day would provide in-flight 

sleep during the WOCL for flightcrew 

members who would be manipulating 

the controls during landing. However, 

there is little real-world data concerning 

the extent of the mitigation provided by 

in-flight sleep during the WOCL. The 

FAA is particularly concerned about 

whether the benefits of in-flight WOCL 

sleep would outweigh the less-restful 

daytime sleep obtained by flightcrew 

members who begin FDPs later in the 

day. Consequently, the FAA has 

decided to retain the shorter FDP limits 

for augmented FDPs that begin later in 

the day, but this position may change if 

FRMS-provided real-world data 

addresses the FAA’s concerns in this 

area. 

The FAA has decided to retain the 

departure-time-based approach in Table 

C because, as discussed above, that 

approach is necessary to take into 

account the quality of rest that a 

flightcrew member receives 

immediately prior to beginning an FDP. 

However, in response to industry 

concerns, the FAA has determined that 

a slight upward adjustment to the FDP 

limits in Table C would not have an 

adverse effect on safety. This is because, 

as discussed in the Flight Time section, 

the flight-time limits for augmented 

operations effectively limit the time that 

each augmented flightcrew member 

spends flying an aircraft to 

approximately 8.5 hours. Accordingly, 

the FAA has increased each of the FDP 

limits in Table C by one hour. The FAA 

is also open to the possibility of further 

increasing the FDP limits in Table C if 

additional data is provided, as part of 

the FRMS process, showing that longer 

augmented FDPs do not have an adverse 

impact on safety. 

The FAA has considered the labor 

groups’ concern that the specific limits 

in Table C somewhat deviate from the 

TNO Report’s rationale. However, the 

FAA believes that these deviations are 

justified in light of the fact that the 

flight-time limits in this rule curtail the 

time that flightcrew members spend 

engaged in the fatiguing activity of 

piloting an aircraft. As discussed above, 

each of the augmented flight-time limits 

has been calibrated so that each 

flightcrew member only spends 

approximately 8.5 hours flying the 

aircraft. Because the remainder of each 

flightcrew member’s FDP is spent either 

resting or doing less-fatiguing activities, 

the FAA has determined that an upward 

deviation from the TNO Report is 

justified in this case. 

The FAA agrees that the TNO Report 

has not yet been validated in the 

aviation context. However, the TNO 


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366 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

64See Folkard, supra note 15, at 98 (showing an 

exponential increase in accident risk after the 8th 

and 9th hour of work). 

Report contains the latest scientific 

evaluation of onboard rest facilities, and 

the report also contains the most 

comprehensive evaluation of these 

facilities. Consequently, the FAA finds 

the TNO Report to be persuasive in this 

case. 

The FAA understands the need to 

proceed cautiously with setting the 

limits for augmented operations. That is 

why this rule largely retains the existing 

flight-time limits for augmented flights. 

These flight-time limits curtail the timeon-task of each flightcrew member and 

serve as a crucial mitigation measure 

against fatigue. The specific flight-time 

limits are set at levels with which the 

FAA has significant operational 

experience and that have scientifically 

been shown to be relatively safe.64 As 

discussed above, given the time-on-task 

mitigation provided by the flight-time 

limits, the FAA has determined that a 

slight increase to the proposed FDP 

limits would have no adverse impact on 

flight safety. 

NACA stated that the proposed 

language was unclear as to whether the 

two-hour in-flight rest opportunity was 

required for each augmented flight 

segment. Drs. Belenky and Graeber 

criticized the proposed requirement that 

flightcrew members manipulating the 

controls during landing receive their inflight rest during the last flight segment. 

They stated that the last flight segment 

on an augmented flight may be short, in 

which case the flightcrew members 

manipulating controls during landing 

would not receive their in-flight sleep 

during the most optimal FDP time. As 

an alternative, Drs. Belenky and Graeber 

suggested allowing in-flight rest to occur 

before the last flight segment, but then 

limiting the flightcrew members to only 

conducting one more landing after their 

in-flight rest. ATA and CAA endorsed 

Drs. Belenky and Graeber’s analysis. 

ATA, CAA, Atlas Air, Delta, and UPS 

criticized the proposed requirement that 

in-flight rest for flightcrew members 

manipulating the controls occur during 

the last flight segment. ATA stated that 

to accommodate this requirement, the 

last flight segment would have to be at 

least 3.5 hours long, which would not 

accommodate some current operations. 

ATA and UPS added that turbulence or 

other factors affecting the final leg— 

such as a diversion—may also prevent 

the landing pilot from receiving a full 

two hours’ rest on the last leg. UPS 

stated that a customer in a supplemental 

operation may require a short final 

segment. Atlas Air stated that some of 

its customers request short flight 

segments as the last segments of an FDP. 

ATA and Delta recommended that the 

in-flight rest for flightcrew members 

landing the aircraft be permitted to take 

place during the last six hours of the 

FDP. UPS recommended that the 

required in-flight rest for the landing 

flightcrew take place during the last 

eight hours of the FDP. 

NACA recommended doing away 

with the two-hour and ninety-minute 

in-flight rest requirements altogether, 

arguing that shorter amounts of rest 

were also recuperative. In support, 

NACA cited a NASA study showing that 

a short in-cockpit nap mitigated shortterm fatigue. NACA also stated that 

NTSB records do not reveal a single 

accident involving an augmented crew 

in which fatigue was a factor. 

Drs. Belenky and Graeber also argued 

that the 2-hour required in-flight rest 

opportunity could be broken up and 

distributed over multiple flight 

segments. In support, they cited the 

2003 Bonnet and Arand clinical review 

for the proposition that rest of less than 

2 hours would be beneficial in the 

augmentation context. They also cited a 

NASA study showing that short cockpit 

naps could be used to mitigate shortterm fatigue. 

ALPA, IPA, CAPA, Flight Time ARC, 

and other labor groups suggested that 

the 2-hour sleep requirement for the 

flightcrew member manipulating the 

controls during landing apply to both 

flightcrew members who will be 

occupying a control seat during landing. 

These commenters emphasized that 

both flightcrew members manipulate the 

controls, i.e., the non-flying pilot 

normally operates flaps, landing gear 

and radios and performs monitoring so 

he must be equally alert. The 

commenters added that there are also 

other high workload circumstances 

where both pilots are manipulating the 

controls such as when a landing must be 

rejected or decision-making is required 

for diversion. Conversely, Delta stated 

that only one flightcrew member 

actually manipulates the controls to 

land an aircraft while the other 

flightcrew member at the control station 

performs secondary functions. 

NJASAP asked whether the 2-hour 

and 90-minute rest requirements for 

augmented operations were cumulative. 

Specifically, NJASAP asked whether 

flightcrew members who will be 

manipulating the controls during 

landing are required to have in-flight 

rest totaling 3.5 hours. NJASAP and 

North American Airlines also asked 

whether there was a minimum length 

for a flight segment in an augmented 

FDP. NJASAP suggested that each flight 

segment in an augmented FDP should 

be long enough for a flightcrew member 

to gain sufficient amounts of in-flight 

rest. North American Airlines suggested 

that subsections 117.19(c) and (d) be 

eliminated in order to prevent 

confusion. NJASAP also asked when the 

flightcrew member who will land the 

plane should end his or her in-flight nap 

and take his or her space at the flight 

controls. 

The reason that the proposed rule 

required two hours of rest during the 

last flight segment for flightcrew 

members who will be manipulating the 

aircraft controls during landing was to 

ensure that the landing flightcrew 

members obtain fatigue-mitigating rest 

close to the time that they begin the 

landing. However, the FAA agrees with 

commenters that requiring the rest to 

take place during the last flight segment 

unnecessarily limits existing operations, 

some of which use a short flight 

segment as the last segment of an 

augmented operation. As such, this 

section has been amended to require 

that the flightcrew member who will be 

flying the aircraft during landing receive 

his or her in-flight rest during the 

second half of the FDP. This 

amendment allows air carriers 

flexibility with scheduling flight 

segments for augmented FDPs while at 

the same time ensuring that the landing 

flightcrew member receives at least two 

hours of continuous rest close to the 

time that he or she will be landing the 

aircraft. 

The FAA has also considered the 

NASA study cited by NACA. This 

NASA study showed that a 40-minute 

sleep opportunity resulting in a 20–26 

minute nap created a relative 

improvement in alertness for the 90- 

minute period following the nap. 

However, this study does not justify 

eliminating the requirement that the 

flightcrew member who will be flying 

the aircraft during landing receive two 

hours of rest during the second half of 

the FDP. This is because the NASA 

study did not establish whether the 20– 

26 minute nap mitigated fatigue for 

more than 90 minutes after the nap was 

taken. As such, if a landing flightcrew 

member takes his or her in-flight rest at 

the beginning of the FDP, it is unclear 

from the results of the NASA study 

whether the benefits from the short inflight nap would still exist at the end of 

that flightcrew member’s FDP when that 

flightcrew member is engaged in the 

safety and work-intensive task of 

landing an aircraft. 

The FAA also notes that it is retaining 

the requirement that the 2 hours of rest 

be continuous. This is because there is 

an overhead cost associated with getting 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 367 

to sleep, and a person waking up from 

a nap also does not immediately become 

fully alert upon waking up. 

Consequently, if a person takes only one 

continuous nap, the going-to-sleep/ 

waking-up costs only have to be paid 

once. However, if a single nap is split 

up into multiple naps, those costs have 

to be paid each time a nap is taken. 

Because augmented flights will only be 

in the air for a limited amount of time, 

the additional going-to-sleep/waking-up 

costs would reduce the total amount of 

time available for recuperative in-flight 

rest. As such, to maximize the amount 

of recuperative rest obtained by 

augmented flightcrew members and 

minimize the costs associated with 

going to sleep and waking up, the 

minimum in-flight rest requirements in 

this section require that the rest be 

continuous. 

As Delta pointed out, only one 

flightcrew member actually flies the 

aircraft during landing while the other 

flightcrew member on the flight deck 

performs secondary functions. While 

these secondary functions are 

important, they are not as task-intensive 

as landing an airplane. Therefore, this 

section only requires two hours of inflight rest in the second half of the FDP 

for the pilot who will be flying the 

aircraft during landing. The regulatory 

language in this section has been 

clarified accordingly. The regulatory 

language in this section has also been 

amended to clarify that the ninetyconsecutive-minute rest opportunity is 

only necessary for the pilot who will be 

performing the secondary monitoring 

duties on the flight deck during landing. 

In addition, the 2-hour and 90-minute 

rest requirements for augmented 

operations are not cumulative. If a 

flightcrew member only performs 

secondary monitoring duties during 

landing, that flightcrew member is only 

required to have a minimum of 90- 

minutes of in-flight rest. If a flightcrew 

member flies an aircraft during landing, 

that flightcrew member is required to 

have a minimum of 2 hours of in-flight 

rest in the second half of his or her FDP. 

Based on these rest requirements, at 

least one flight segment in the second 

half of the augmented FDP of a 

flightcrew member who will be flying 

an aircraft during landing must exceed 

two hours so that the flightcrew member 

can obtain his or her minimum 

continuous in-flight rest. This flight 

segment need not be the last flight 

segment of the FDP. The two hours of 

in-flight rest simply needs to take place 

in the second half of the FDP of the 

flightcrew member who will be flying 

the aircraft during landing. 

The flightcrew member who will be 

flying the aircraft during landing should 

end his or her in-flight nap and assume 

control of his or her duty station before 

the top of the descent, which is about 

45 minutes to 1 hour before landing. 

This is will allow the flightcrew 

member to take into account all of the 

surrounding circumstances before 

reducing the aircraft’s altitude in 

preparation for an eventual landing. 

NJASAP asked whether certificate 

holders could use augmentation on 

domestic operations. ATA asked that 

the FAA ‘‘affirmatively state in the rule 

text that for the purposes of operational 

reliability and flexibility, carriers can 

augment any flight that would not 

otherwise require and/or qualify for 

augmentation.’’ A number of air carriers 

stated that augmentation on domestic 

flights should be permitted because the 

science underlying domestic and 

international augmentation is the same. 

Conversely, three individual 

commenters, APA, NJASAP, and 

Captain Sullenberger stated that 

augmented flightcrews should be used 

only on international and not domestic 

flights. NJASAP emphasized that 

‘‘[a]ugmented crews were intended to 

allow an aircraft to fly to a destination 

which was too far to reach under the 

flight rules governing two flightcrew 

members, meaning a flight route too 

long over a geographical region which 

prohibited the allowing of changing 

crews.’’ APA stated that domestic flights 

are capable of replacing the crew 

between flight segments, and thus, they 

do not have the same need for 

augmentation as international flights. 

This rule permits augmentation on 

domestic and international FDPs that 

meet the criteria set out in section 

117.17. This is because, as the air 

carriers correctly pointed out, 

augmentation mitigates fatigue the same 

way on both domestic and international 

flights. Therefore, augmentation allows 

air carriers to safely schedule longer 

FDPs both domestically and 

internationally. 

While augmentation was originally 

designed to allow air carriers to 

schedule longer flights, that is not a 

sufficient justification to limit 

augmentation to international flights. As 

an initial matter, some domestic flights 

are longer than some international 

flights. Thus, for example, a flight from 

Atlanta to Mexico City, which is an 

international flight, is shorter than a 

flight from Washington DC to Los 

Angeles, which is a domestic flight. In 

addition, augmentation provides safety 

benefits on shorter flights as well as 

longer flights. A flightcrew member 

working on an 8-hour augmented FDP 

will be able to obtain in-flight rest and 

all of the other benefits of augmentation. 

Consequently, the augmented flightcrew 

member will have a less-fatiguing FDP 

than an unaugmented flightcrew 

member working on a similar FDP. 

The FAA has determined that the 

ability to replace flightcrew members 

between flight segments is also not a 

sufficient justification for prohibiting 

augmentation on domestic flights. Many 

of the air carriers that fly international 

routes have a substantial international 

presence and could easily replace 

flightcrew members between flight 

segments on international flights. 

Conversely, some air carriers do not 

have a substantial presence at some of 

the smaller domestic airports, and these 

air carriers may find it more difficult to 

replace flightcrew members between 

domestic flight segments involving 

those airports. 

Because augmentation provides the 

same amount of fatigue mitigation on 

both domestic and international flights 

and because there is no meaningful 

justification for prohibiting 

augmentation on domestic flights, this 

rule permits augmentation on both 

domestic and international flights. 

NACA, CAA, North American 

Airlines, and Capital Cargo objected to 

augmented flights being limited to three 

flight segments. Capital Cargo stated 

that multi-segment augmented FDPs are 

safe because flightcrew members on 

those FDPs receive in-flight rest. 

Conversely, ALPA, IPA, CAPA, 

NJASAP, Flight Time ARC, and other 

labor groups stated that the TNO report 

was only intended for one-segment 

flights, and as such, multi-leg 

augmentation should only be allowed 

when no crew change is possible. ALPA 

emphasized that ‘‘[m]ulti-leg 

augmentation should never be allowed 

solely for the purpose of extending a 

flight duty period.’’ NJASAP asserted 

that multi-leg domestic augmentation is 

counter to the intent behind 

augmentation. IPA, CAPA, and IBT 

Local 1224 suggested that only two 

flight segments should be permissible 

for an augmented FDP. 

As discussed in the Unaugmented 

FDP section, there is evidence that 

additional flight segments increase 

flightcrew member fatigue. Because 

existing augmented operations generally 

do not exceed three flight segments, the 

FAA has little data concerning the 

effects of FDPs consisting of more than 

three flight segments on the fatigue 

levels of augmented flightcrew 

members. As such, the FAA has decided 

to permit augmented FDPs of three 

flight segments or less, which are used 

in existing operations, and to require 


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368 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

65CAP–371, section 15.3. 

additional FRMS-provided data from air 

carriers wishing to exceed the threeflight-segment limit. 

ATA and UPS stated that the FDP 

limits for four-pilot crews are counter to 

science because they permit longer 

FDPs for pilots who land during the 

WOCL than for pilots who do not land 

during the WOCL. As such, ATA 

suggested that the limits for four-pilot 

operations ‘‘be adjusted to uniformly 

reflect the maximum values currently 

set forth in the table.’’ ATA stated that 

such an adjustment would make this 

rule similar to other standards like 

CAP–371. 

Conversely, IPA, CAPA, IBT Local 

1224, and Flight Time ARC suggested 

that the FAA not allow four-pilot 

augmentation for flights with a Class 3 

rest facility. These commenters argued 

that a Class 3 rest facility only provides 

marginal rest, and placing more pilots 

on board with this type of facility would 

just increase the likelihood that there 

will be more fatigued pilots. 

As discussed above, the specific 

timeframes in Table C were calibrated to 

take into account only the quality of rest 

received by each flightcrew member 

before beginning an FDP. Because of the 

redundancy safeguards inherent in 

augmentation, the FAA determined that 

there was less of a safety concern 

associated with augmented pilots flying 

an aircraft during the WOCL. 

Turning to the distinction between 

three- and four-pilot flightcrews, the 

reason that Table C sets lower limits for 

three-pilot crews than it does for fourpilot crews is that, in a three-pilot crew, 

each pilot spends more time piloting the 

aircraft. Take, for example, a 12-hour 

flight segment. Because two pilots are 

required to operate the aircraft, pilots in 

a four-pilot crew working in shifts of 

two would each spend 6 hours on the 

flight deck. Conversely, pilots in a threepilot crew working in shifts of two 

would each spend 8 hours on the flight 

deck. Because pilots working as part of 

a three-pilot crew spend more time 

piloting the aircraft and less time 

resting, Table C sets lower FDP limits 

for three-pilot crews. 

The FAA understands that this 

distinction makes this rule different 

from other regulatory rules, such as 

CAP–371, which do not distinguish 

between three and four-pilot augmented 

crews. Here, while CAP–371 does not 

distinguish between three- and fourpilot crews, it addresses the safety 

issues associated with augmentation 

flights in other ways by requiring three 

hours of in-flight rest during augmented 

operations 65 instead of the ninety 

minutes to two hours required by this 

rule. 

The FAA has also decided to retain 

augmentation for four-pilot flightcrews 

on flights with a Class 3 rest facility 

because, even though these flights have 

a lower-quality rest facility, each of the 

pilots in the four-pilot flightcrew will 

spend less time piloting the aircraft than 

the pilots in a three-pilot flightcrew. 

Consequently, the members of the fourpilot augmented flightcrew will 

accumulate less fatigue during their 

flight than the members of the threepilot augmented flightcrew. The lower 

quality of the Class 3 rest facility is 

instead reflected in the relatively-low 

FDP limits associated with that facility. 

APA suggested amending subsection 

117.19(e) to add a requirement that the 

PIC-type-rated flightcrew member be 

fully qualified and landing current. APA 

stated that the flightcrew member(s) 

flying the aircraft need to be capable of 

performing a landing because 

unforeseen circumstances during the 

flight may require the flightcrew 

member(s) in the cockpit to make a 

prompt emergency landing. NJASAP 

stated that all flightcrew members in an 

augmented operation should be typerated. 

In response to APA’s concern, the 

language in section 117.19(e) has been 

amended to require that at least one 

flightcrew member on the flight deck 

must be qualified in accordance with 14 

CFR 121.543(b)(3)(i). A flightcrew 

member qualified in accordance with 

section 121.543(b)(3)(i) will be both 

fully qualified and landing current. 

Turning to NJASAP’s concern about 

all flightcrew members being type-rated, 

the FAA notes that the existing 

regulations require the second in 

command (SIC) to be type-rated for all 

non-domestic flights. See 14 CFR 

61.55(a)(3). While these regulations do 

not require the SIC to be type-rated on 

domestic flights, the FAA has 

determined that 14 CFR 121.543(b)(3)(i) 

requires a high degree of training, and 

having at least one flightcrew member 

on the flight deck who is qualified in 

accordance with this section provides 

sufficient staffing to safely operate the 

aircraft and respond to any unforeseen 

circumstances that may arise. 

Boeing asked for clarification about 

whether FDPs consisting of a mix of 

augmented and unaugmented flights are 

subject to Table B or Table C. 

The FDP and flight-time limits for 

augmented operations were set at higher 

levels based on the assumption that 

flightcrew members working on those 

operations would obtain the fatiguemitigation benefits of augmentation. A 

flightcrew member who works on an 

unaugmented flight does not obtain 

these fatigue-mitigation benefits. As 

such, if an FDP contains both an 

augmented and an unaugmented flight, 

that FDP is subject to the unaugmented 

FDP-limits set out in Table B and the 

unaugmented flight-time limits set out 

in Table A. 

IPA, CAPA, Flight Time ARC, and 

other labor groups also suggested that, 

to ensure proper in-flight rest, this rule 

require a Class I rest facility for any 

augmented FDP in which the flight time 

exceeds 12 hours. 

As discussed in the Flight Time 

section, the flight-time limits for 

augmented FDPs have been set so that 

each flightcrew member flies the aircraft 

for approximately 8.5 hours. Because 

this flight-time restriction limits each 

flightcrew member’s time-on-task to 

acceptable levels, there is no need to 

impose minimum rest facility 

limitations for sub-categories of 

augmented operations. 

NACA suggested, without elaboration, 

that the FDP limits for unacclimated 

flightcrew members be decreased by 

1 hour instead of the proposed 30 

minutes. ALPA, IPA, IBT Local 1224, 

and Flight Time ARC argued that the 

proposed 30-minute reduction for 

unacclimated flightcrew members is too 

simplistic. As an alternative, these 

commenters proposed a Table D, 

containing FDP limits for unacclimated 

flightcrew members, which decreased 

unacclimated flightcrew member FDP 

times by values ranging from 20 to 50 

minutes (depending on the time of day). 

The 30-minute FDP-limit reduction 

for unacclimated flightcrew members 

was imposed to account for the 

additional fatigue experienced by these 

flightcrew members. The FAA is 

unaware of NACA’s reasons for 

suggesting that the FDP reduction for 

unacclimated flightcrew members be 

increased to one hour. 

Turning to the suggestions put 

forward by the labor groups, because the 

unacclimation reductions set out in the 

commenters’ suggested Table D are 

relatively close to the FAA-proposed 30- 

minute reduction, the FAA has decided 

to retain the 30-minute reduction for the 

sake of regulatory simplicity. As 

commenters have pointed out 

elsewhere, parts of this rule are 

somewhat complex, and as such, the 

FAA has determined that adding 

another table solely for unacclimated 

flightcrew members would add undue 

complexity to this section. 

ALPA, IPA, CAPA, and IBT Local 

1224 recommended changing the label 

in Table C for ‘‘Time of start’’ to clarify 

that the timeframes specified in Table C 

are based on home base or acclimated 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 369 

time. The FAA adopts this 

recommendation, and the label in Table 

C has been changed to clarify that the 

‘‘Time of start’’ in Table C is based on 

home base or acclimated time. 

I. Schedule Reliability 

In the NPRM, the FAA proposed 

reporting requirements to facilitate 

realistic scheduling by the certificate 

holders. Proposed § 117.9, Schedule 

reliability, would have required the 

certificate holder to adjust (1) its 

system-wide FDPs if the total actual 

FDPs exceed the scheduled FDPs more 

than 5% of the time; and (2) a specific 

FDP if it is shown to exceed the 

schedule 20% of the time. The 

certificate holder would have to adjust 

its schedule within 60 days for any 

FDP(s) that exceeded the above-stated 

percentages. 

The FAA also proposed that each 

certificate holder must submit a report 

every two months detailing the 

adjustments described above (the 

overall schedule reliability and pairingspecific reliability) and include the 

following information: (1) The carrier’s 

entire crew pairing schedule for the 

previous two-month period, including 

the total anticipated length of each set 

of crew pairings and the regulatory limit 

on such pairings; (2) the actual length of 

each set of crew pairing; and (3) the 

percentage of discrepancy between the 

two data sets on both a cumulative, and 

pairing-specific basis. 

No commenters supported the 

requirements for schedule reliability as 

proposed. Many commenters argued 

that the proposed requirements were 

unnecessary as they would not do 

anything to mitigate transient, 

cumulative or chronic fatigue. Others 

believe that the proposal was seriously 

flawed and that adjustments to the 

proposed requirements were necessary. 

Pinnacle, RAA, ATA, Alaska Airlines, 

Continental, American Airlines and 

Capital Cargo International Airlines 

(CCIA) contend that the schedule 

reliability section should be deleted 

entirely. They argue that these proposed 

requirements do not advance fatigue 

mitigation and present unjustified costs 

and burdens on certificate holders. RAA 

stated that the NPRM did not set forth 

any discussion of a statistical basis/ 

reality check for the selection of a 5% 

FDP ‘‘late arrival’’ rate for the certificate 

holder’s operation as a whole, or as the 

trigger point for when the certificated 

holder must take action to ‘‘adjust.’’ 

Similarly, RAA states that there is no 

discussion to support the selection of 

20% for a particular FDP that actually 

exceeds the scheduled time. RAA also 

commented that there is limited 

likelihood that the flightcrew member 

FDP reliability analysis under the 

NPRM would differ greatly from an 

airline’s on-time arrival statistics even if 

the proposed regulatory text is changed 

to reflect a 14-minute ‘‘grace period’’ 

that DOT affords in its on-time reporting 

statistics. 

Several commenters, including CAA, 

UPS, World Airways, American Eagle 

Airlines (AE), and ALPA, also objected 

to the schedule reliability provision and 

suggested that instead of reporting when 

actual FDPs exceed scheduled FDPs, 

certificate holders should only report 

FDPs that exceed the maximum limits 

under the regulations. They argue that 

as long as the flightcrew member’s FDP 

falls within the parameters of the 

maximum permitted under the 

regulation, the certificate holder must 

have the operational flexibility to 

manage schedules as they determine. 

The commenters also stated that a 

reporting schedule which requires a 

certificate holder to detail occurrences 

that exceed the maximum limits 

provided in Tables B and C, and to 

adjust the schedules that consistently 

exceed those limits, is reasonable. 

Commenters also submitted varying 

timeframes for the reporting. Some 

recommended 30 days, other suggested 

quarterly reporting. There were various 

comments on how long the certificate 

holder had before taking corrective 

action. 

IBT Local 1224, IPA, the Flight Time 

ARC, and FedEx ALPA recommended 

that the schedule reliability section 

extend to flight segments as well. 

IATA commented that any reporting 

requirements should relate directly to 

fatigue and not to compliance with 

published schedules. UPS stated that 

the reporting requirements should be 

seasonal to comport with schedule 

changes. UPS also argued that schedule 

reliability would actually increase 

fatigue because certificate holders 

would pad time spent on the ground 

during multi-segment FDPs, which 

would result in a corresponding 

reduction in restorative layover rest. 

UPS and NAC contend that this section 

addresses domestic scheduled 

operations and is illogical for others, 

particularly non-scheduled operators. 

The FAA acknowledged in its 

Response to Clarifying Questions that 

the NPRM discussion on schedule 

reliability was confusing. The FAA also 

acknowledges that this section as 

proposed raised considerable concerns 

from virtually all commenters. After 

reviewing the comments, the FAA 

concludes that the concept of schedule 

reliability is better addressed by the 

simpler approach recommended by the 

group of commenters, who suggested 

reporting actual FDPs that exceed the 

maximum regulatory limits. This is 

discussed in detail in the next section. 

J. Extensions of Flight Duty Periods 

The FAA agrees that FDPs that exceed 

the maximum FDP permitted under 

Table B are the ones that directly impact 

fatigue and must be addressed by the 

certificate holder. Adopting this 

approach will make the certificate 

holder accountable for scheduling FDPs 

realistically. While a certificate holder 

can schedule FDPs up to the maximum 

presented in the tables, it is unlikely to 

do so because of the cumulative limits 

(weekly and monthly) on FDPs. This 

approach addresses a significant portion 

of the commenters’ concerns. Proposed 

section 117.9 is deleted and the FAA 

adopts new § 117.19 Flight Duty Period 

Extensions. 

This new section sets forth the limits 

on the number of FDPs that may be 

extended; implements reporting 

requirements for affected FDPs; and 

distinguishes extended FDPs due to 

unforeseen operational circumstances 

that occur prior to takeoff from those 

unforeseen operational circumstances 

that arise after takeoff. For purposes of 

maintaining all requirements for FDP 

extensions in a single section, the 

provisions permitting extended FDPs 

based on unforeseen circumstances 

proposed in § 117.15 FDP: Unaugmented operations and § 117.19 

FDPs: Augmented flightcrew are now 

codified in § 117.19. 

RAA, Southwest Airlines and World 

Airways object to the pilot in command 

being the decision maker on whether to 

extend an FDP. Continental, however, 

recommends that the decision to extend 

a FDP should be a joint decision 

between the pilot in command and the 

certificate holder. APA commented that 

the decision of the pilot in command is 

crucial in determining whether to 

extend an FDP. 

The FAA agrees that the 

responsibility for determining whether a 

FDP needs to be extended rests jointly 

with the pilot in command and the 

certificate holder. This ensures that one 

party is not taking excessive action over 

another party, and that proper 

considerations are factored into the 

decision-making. Paragraph (a)(1) of this 

section permits, under unforeseen 

operational circumstances that arise 

prior to takeoff, the pilot in command 

and the certificate holder to extend the 

maximum FDP permitted in Table B and 

C by two hours. 

In the NPRM, the FAA specifically 

questioned whether the proposed twohour extension was appropriate. 


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370 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

66Section 117.25(b) provides that before 

beginning any reserve or FDP, a flightcrew member 

must be given at least 30 consecutive hours free 

from all duty in any 168 consecutive hour period, 

subject to certain limitations. 

SWAPA opposed any extension beyond 

the free 30-minute extension and argued 

that this would invite abuse. NJASAP 

supported one extension up to two 

hours, as long as compensatory rest was 

applied following the extension. IPA 

supported the two-hour extension as 

reasonable but opposed the three-hour 

extension for augmented operations 

because greater rest opportunities are 

not provided for those operations. APA 

supports the limits on extensions and 

argues in particular that the 12–13 hour 

period repeatedly has been cited as a 

point at which accident risk increased 

dramatically. APA also commented, 

however, that there are certain 

circumstances in which a FDP can be 

safely extended beyond the two hours 

contemplated in the NPRM. NACA 

supports a two-hour extension for both 

augmented and unaugmented 

operations. 

The FAA agrees that an extension 

must be based on exceeding the 

maximum FDP permitted in Table B and 

C. It is unreasonable to limit extensions 

on FDPs that are less than what the 

certificate holder can legally schedule. 

In addition, there is a 30-minute buffer 

attached to each FDP to provide 

certificate holders with the flexibility to 

deal with delays that are minimal. 

However, after the 30-minute buffer, any 

time that the FDP needs to be extended, 

the requirements and limitations of this 

section apply. In the NPRM, the FAA 

proposed a two-hour FDP extension for 

unaugmented operations due to 

unforeseen operational circumstances 

and a three-hour FDP extension for 

augmented operations under similar 

situations. The FAA concludes that 

there is no distinction for FDP extension 

based on whether the operation is 

conducted by an augmented flightcrew. 

The difference between unaugmented 

and augmented operations is accounted 

for by the different hourly limits in 

Tables B and C. The hourly limits of 

Table C were developed in 

consideration of the extra flightcrew 

members and rest facilities onboard the 

aircraft for augmented operations that 

mitigate the effects of longer FDPs. 

There is no further mitigation that 

warrants an additional hour for an 

augmented crew. The FAA believes that 

two hours is reasonable and provides 

the certificate holder with sufficient 

operational flexibility to adjust for 

unforeseen operational circumstances. If 

an unforeseen operational circumstance 

occurs prior to takeoff, a flightcrew 

member cannot accept an extended FDP 

if the completion of that FDP would be 

more than two hours beyond the 

maximum FDP permitted under Table B 

and C for that flight. 

In the NPRM, the FAA proposed that 

an extension of an FDP of more than 30 

minutes may occur only once in any 168 

consecutive hour period. Hawaiian 

Airlines, IPA, IBT Local 24, Alaska 

Airlines, Aloha Air Cargo and several 

individual commenters supported this 

proposal. One commenter suggested one 

extension in a 90-day period. SkyWest, 

United, FedEx Express, ATA, and CAA 

argue that one extension is too 

restrictive and does not allow any 

operational flexibility to recover a 

schedule after an event. SkyWest 

suggested up to three extensions per 

week with a total of eight per month. 

ATA argued that the once in 168 hours 

rule ‘‘is another example of a 

requirement made unnecessary by other 

mitigations in the NPRM and which will 

result in unjustified adverse impacts.’’ 

ATA and CAA support the statements 

submitted from Drs. Belenky and 

Graeber, who commented ‘‘that clear 

science supports that extended work 

hours over consecutive work days 

reduces the opportunity for sleep, 

which can lead to cumulative sleep loss 

and fatigue. However, there is no 

scientific evidence to support limiting 

an extension to once in seven days.’’ 

They further comment that extensions 

should not be permitted on consecutive 

days in order to allow for sleep recovery 

and no more than two extensions within 

any one 168 hour period. RAA, 

Continental, North American, 

Southwest and two individuals 

requested two extensions in a 168 

consecutive hour period. Kalitta Air and 

North American Airlines support two 

non-consecutive extensions in 168 

hours, with a 16-hour rest period 

required if the second extension 

actually occurs. 

Lynden Air Cargo, Southern Air and 

NACA object to the limit on extensions. 

They argue that supplemental, nonscheduled operations require flexibility 

to schedule their operations that is not 

needed by the domestic scheduled 

community because they have crews on 

reserve for use in lieu of extensions. 

The FAA is not persuaded by the 

commenters that more than one 

extension is appropriate within a 168 

consecutive hour period with one 

exception, discussed below. The 

elements of the flight and duty 

requirements adopted in this rule 

present a conceptual departure from the 

practice that is in place under the 

current rules. Under the current rules, 

extensions of flight time were largely 

unrestricted as long as a flightcrew 

member was provided with 

compensatory rest. Under the 

requirements adopted today, rest is 

prospective and the certificate holders 

are responsible to schedule realistically 

so that FDP limits can be maintained. 

Permitting weekly extensions simply 

encourages scheduling to those 

extensions and undercuts the purposes 

of strict limits on FDPs. 

In response to the commenters 

however, the FAA is modifying one 

aspect of this requirement. In the 

NPRM, an FDP extension was limited to 

once every 168 consecutive hour period. 

While this limited potential abuse of 

extensions, it did result in an illogical 

outcome based on certain facts. For 

example, a flightcrew member that has 

an FDP extended on Day 1 and then has 

two days off would be unable to accept 

another extended FDP on Day 4. After 

having 48 hours rest, that flightcrew 

member would not be subject to fatigue 

based on a two-hour extended FDP. 

Paragraph (a)(2) provides that an 

extension of the FDP of 30 minutes or 

more may occur only once prior to 

receiving a rest period described in 

§ 117.25(b).66 This provides certificate 

holders with one extended FDP but 

resets the clock for the 168 consecutive 

hours limit if a rest period of 30 hours 

or more has been received. Furthermore, 

the FAA is mindful of the daily tracking 

and recordkeeping/compliance burden 

placed on both individual flightcrew 

members and the certificate holders by 

a rolling 168 consecutive hour period. 

This modification will alleviate this 

tracking requirement. 

The FAA has included, in paragraph 

(a)(3), that a flightcrew member’s FDP 

may not be extended due to unforeseen 

operational circumstances that occur 

prior to takeoff if such extension could 

cause the flightcrew member to exceed 

the cumulative FDP limits specified in 

§ 117.23(c). The basis for this provision 

is that prior to takeoff a flightcrew 

member will know whether the delay 

will result in the flightcrew member 

exceeding the cumulative limits. If so, 

the flightcrew member cannot continue 

the flight. 

In lieu of the reporting requirements 

proposed under the schedule reliability, 

the FAA adopts a two-prong 

requirement for reporting extended 

FDPs. In addressing unforeseen 

operational circumstances, it is critical 

to distinguish those situations that arise 

prior to takeoff and those that arise after 

takeoff. Under both situations, the 

certificate holder must report to the 

FAA within 10 days any FDP that 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 371 

67See, e.g., Wyatt, supra note 64, at R1160–62; 

Akerstedt, supra note 64 at 159–69. 

68See NASA, supra note 22, at 19–34. 

exceeded the maximum FDP permitted 

by Table B or C by more than 30 

minutes. In this report, the certificate 

holder must describe the FDP and the 

circumstances surrounding the need for 

an extension. If the situation giving rise 

to the extension occurred prior to 

takeoff, the certificate holder must 

address in this report whether the 

circumstances giving rise to the 

extension were within its control. Since 

it is prior to takeoff, once the certificate 

holder becomes aware of such issue, the 

certificate holder and pilot-in-command 

have discretion to evaluate the situation 

and determine whether it is permissible 

and appropriate to extend the applicable 

FDPs and continue with the flight or 

whether it is more appropriate to 

replace the affected flightcrew member. 

Therefore, in situations where the 

circumstances were within the 

certificate holder’s control, the 

certificate holder must include in its 

report the corrective actions that it 

intends to take to minimize the need for 

future extensions. The certificate holder 

then has 30 days to implement such 

corrective actions. For situations that 

are not within the certificate holder’s 

control, it is unlikely that there is a 

corrective action that can be taken. 

Therefore, under these scenarios, the 

certificate holder must simply report the 

extension within 10 days and provide 

the details surrounding the need for the 

extended FDP. 

Similarly for situations that arise after 

takeoff, the certificate holder and pilot 

in command have very little discretion 

concerning FDPs and flight time limits. 

Therefore, if an FDP or flight time needs 

to be extended due to unforeseen 

circumstances that occur after takeoff, 

the pilot-in-command and the certificate 

holder may extend the subject FDPs and 

flight time, to the extent necessary to 

safely land the aircraft at the next 

destination airport or alternate airport, if 

appropriate. In addition, the extended 

portion of the flightcrew member’s FDP 

and flight time will be permitted in the 

flightcrew member’s weekly and annual 

cumulative limits on FDP and flight 

time limitations. The certificate holder 

also must report the extension to the 

Administrator within 10 days of 

occurrence with the same level of detail 

as described above. 

The reports for extended FDPs and 

flight time will be forwarded to the 

appropriate certificate-holding district 

office where the FAA will monitor all 

extensions filed. The FAA will review 

the circumstances surrounding the need 

for the extensions and if appropriate, 

whether the circumstances were, in fact, 

beyond the certificate holder’s control. 

As explained in the NPRM, this 

determination is on a case-by-case basis. 

Certificate holders must be aware of 

scheduling operations into and out of 

chronically delayed airports. Similarly, 

certificate holders must be mindful of 

anticipated weather conditions, e.g., 

predicted snow storms/blizzards 

affecting certain airports in the winter. 

Obviously, not all weather occurrences, 

ATC delays, or a variety of other 

situations can be anticipated and 

addressed by the certificate holder. 

However, situations that result from 

inadequate planning are within the 

certificate holder’s control and will 

warrant corrective action. 

The FAA believes that the above 

requirements will result in realistic 

scheduling of FDPs. The FAA selected 

10 days for the time period to file a 

report because it is within the time 

period for retrieval of ATC and weather 

data in the event that data is necessary 

for an investigation. This information 

may be necessary in addressing 

extended FDPs so it is critical that the 

FAA receive the report within the same 

timeframe. In addition, when situations 

occur that require an extension, the 

certificate holder must look at the 

offending segment and identify whether 

adjustments are needed. 

It must be noted that the FAA will 

investigate each filed report denoting an 

extended FDP and flight time. This 

investigation would be conducted by 

the certificate management office 

responsible for day-to-day oversight of 

the air carrier. If the circumstances are 

found to be within the certificate 

holder’s control, the certificate holder 

has responsibility to determine the 

corrective action and to implement that 

corrective action within the time period 

required under the regulations. Failure 

to adhere to the adopted requirements 

may result in enforcement by the FAA. 

K. Split Duty 

Sleep studies show that sleep which 

takes place during the day is less restful 

than sleep that takes place at night.67

Other studies indicate that working 

during the WOCL substantially degrades 

the ability of a flightcrew member to 

safely perform his or her duties.68 One 

of the problems that this rule was 

intended to address is the performance 

degradation experienced by flightcrew 

members who conduct overnight FDPs 

and perform their duties during the 

WOCL after receiving less-restful 

daytime sleep. This rule addresses this 

problem by incentivizing fatigue 

mitigation measures. 

One of these fatigue mitigation 

measures is split duty which is based on 

the premise that there are times during 

an unaugmented nighttime FDP when a 

certificate holder could reasonably 

provide a flightcrew member with an 

opportunity for rest. This rest 

opportunity (opportunity to sleep) 

would allow a flightcrew member to get 

some sleep during the night. The 

nighttime sleep could be used to 

mitigate the performance degradation 

created by working through the WOCL. 

To incentivize split duty rest, the 

FAA proposed that a flightcrew member 

who received a split duty rest 

opportunity be allowed to extend his or 

her FDP by 50% of the available split 

duty rest opportunity. Under the FAA’s 

proposal, the split duty rest opportunity 

had to be at least 4 hours long, and it 

could not be used to extend an FDP 

beyond 12 hours. The rest opportunity 

had to be calculated from the time that 

the flightcrew member actually reached 

the suitable accommodation (sleep 

facility). 

NJASAP opposed the proposed split 

duty extension, but noted that the 

proposed rule presented an 

improvement over existing limitations 

on such operations. NJASAP argued that 

split duty sleep is a theoretical concept 

that may result in cumulative fatigue 

and circadian disruption. In support of 

its argument, NJASAP cited to a study 

showing that pilots who obtained 7 

hours of sleep at night scored 

consistently worse than pilots who 

obtained 9 hours of sleep at night. Given 

this study and the theoretical nature of 

split duty, NJASAP cautioned the FAA 

against awarding an FDP extension 

based on split duty rest. 

Conversely, ATA stated that ‘‘science 

and operational experience supports the 

concept that a flightcrew member can 

recuperate because of the opportunity to 

sleep during a period of their FDP.’’ 

CAA strongly supported the recognition 

of split duty as a fatigue mitigation 

measure. One individual commenter 

also supported the extension of FDPs 

through split duty schedules. 

NJASAP also asked whether the fourhour threshold was mandatory or 

whether split duty credit could be 

obtained for split duty rest that was less 

than four hours. ATA and UPS argued 

that the four-hour split duty threshold is 

arbitrary and not science-based. ATA 

also criticized as unscientific the 

NPRM’s assumption that there is 

increased overhead involved with 

falling asleep during a split duty rest. 

Conversely, FedEx ALPA supported the 

four-hour split duty threshold, stating 


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372 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

69See Daniel J. Mollicone, et al., Optimizing 

sleep/wake schedules in space: Sleep during 

chronic nocturnal sleep restriction with and without 

diurnal naps, Acta Astronautica 60, at 354–61 

(2007) (examining the fatigue mitigation potential of 

naps taken during the day). 

70 In a previous Bonnet article, the author also 

states that ‘‘* * * [i]t does appear that any 

repetitive stimulation of sufficient magnitude to 

precipitate any changes in ongoing EEG is sufficient 

to make sleep nonrestorative.’’ Bonnet MH. Sleep 

restoration as a function of periodic awakening, 

movement, or electroencephalographic change. 

Sleep, Vol. 10, at 371 (1987). 

that the four-hour threshold is a valid 

conservative approach until more 

scientific data is collected. 

Drs. Belenky and Graeber cited a 2003 

Bonnet and Arand clinical review for 

the proposition that ‘‘any sleep longer 

than 20 minutes provides full minuteby-minute recuperative value.’’ Based 

on this review, Drs. Belenky and 

Graeber asserted that, for night 

operations, ‘‘any time behind the door 

of more than 30 minutes would have 

recuperative value.’’ As such, Drs. 

Belenky and Graeber argued that the 

four-hour split duty threshold is not 

supported by science. ATA, CAA, and 

FedEx supported this conclusion. 

NACA, Kalitta Air, Atlas Air, and 

NAA cited a NASA study, which states 

that a 45-minute cockpit nap, including 

use of a jump seat, with a 20-minute 

recovery resulted in increased alertness 

for a minimum of 90 minutes of the 

flight. These commenters argued that, if 

this type of benefit could be achieved 

through a cockpit nap, it could 

definitely be achieved through a ground 

rest facility. 

The FAA agrees with ATA and CAA 

that split duty is a valid fatigue 

mitigation measure. Science has shown 

that naps can serve to mitigate fatigue.69

Consequently, split duty naps taken at 

night will permit a flightcrew member 

to obtain restful nighttime sleep in the 

middle of his or her FDP. This restful 

nighttime sleep will decrease that 

flightcrew member’s fatigue level, and 

will allow him or her to safely work for 

a longer period of time. As such, the 

FAA has retained the split duty FDP 

extension in this rule. 

In response to comments about 

specific split duty provisions, the FAA 

conducted further SAFTE/FAST 

modeling to examine the safety-relevant 

effects of changing the provisions of the 

split duty section. The SAFTE/FAST 

model works by predicting flightcrew 

member effectiveness on a 0 to 100 scale 

for each minute of that flightcrew 

member’s FDP. Lower predicted 

flightcrew member effectiveness results 

in a lower SAFTE/FAST number. An 

effectiveness level of 77 is 

approximately equivalent to the 

effectiveness of someone with a blood 

alcohol concentration of 0.05. 

With regard to the 4-hour threshold, 

that threshold was included in the 

proposal to ensure that all flightcrew 

members obtain a minimum amount of 

restful sleep during split duty. Upon 

further modeling, the SAFTE/FAST 

model showed that a split duty break of 

less than 3 hours with the 

corresponding FDP extension would, 

over a 5-night period, result in 

flightcrew member effectiveness 

dropping below 77 for a portion of the 

FDP. Conversely, a split duty break of at 

least 3 hours resulted in flightcrew 

member effectiveness consistently 

staying above 77 over a 5-night period. 

Accordingly, this section has been 

amended to reduce the threshold for the 

split duty extension to a 3-hour split 

duty break. In response to NJASAP’s 

question, split duty rest that is less than 

3 hours simply counts as part of a 

flightcrew member’s FDP and does not 

serve to extend the maximum FDP 

limits. 

The FAA disagrees with Drs. Belenky 

and Graeber’s assessment of the Bonnet 

and Arand clinical review. The studies 

examined in this clinical review tested 

the impact that sleep fragmentation had 

on restfulness and the potential 

resultant daytime sleepiness. During the 

course of the studies, subjects would be 

allowed to fall asleep, and their sleep 

would then be intermittently disrupted. 

The studies found that if one’s sleep is 

interrupted every 20 minutes following 

sleep onset during the night (when one 

is normally sleeping), that person’s 

daytime sleepiness, as measured by the 

Mean Sleep Latency Test (MSLT), is the 

same as someone who has not had their 

sleep interrupted. 

There are two problems with applying 

the Bonnet and Arand clinical review to 

split duty. The first problem is that the 

MSLT results measured by the studies 

analyzed in the clinical review do not 

necessarily mean that the performance 

capabilities of subjects who had their 

sleep interrupted at 20-minute intervals 

were equivalent to subjects who did not 

have their sleep interrupted. All the 

MSLT results mean is that, when MSLT 

measurements were taken of subjects 

who had their sleep interrupted, these 

subjects did not fall asleep within the 

MSLT’s protocol termination at 20 

minutes. 

The second problem with applying 

these studies to split duty sleep is that 

split duty sleep does not involve sleep 

fragmentation, but rather a restriction on 

the total amount of sleep provided 

during the night. A flightcrew member 

engaging in split duty sleep will 

presumably not have his or her sleep 

cycle intermittently disrupted. Instead, 

that flightcrew member’s total split duty 

sleep amount may be significantly lower 

than the 8-hour minimum necessary to 

recover from fatigue. Because the 

Bonnet and Arand clinical review did 

not analyze any studies that actually 

examined the ‘‘recuperative value’’ of 

receiving less than 8 hours of sleep, that 

review is not applicable to the 

minimum threshold necessary to ensure 

a sufficient amount of split duty sleep.70

As the commenters correctly pointed 

out, a NASA study showed that a 40- 

minute sleep opportunity resulting in a 

20–26 minute nap created a relative 

improvement in alertness for the 90- 

minute period following the nap. 

However, there are three problems with 

using this study to justify extending a 

night FDP. First, the NASA study was 

conducted to see if alertness might be 

maintained or improved long enough to 

more safely complete a scheduled flight. 

The NASA study was not conducted to 

determine the conditions necessary to 

extend the flight duty period. Second, 

the study did not establish whether the 

20–26 minute nap mitigated fatigue for 

more than 90 minutes after the nap was 

taken. 

The third problem with using the 

above study to extend an FDP is that 

this study did not explore the full extent 

of the fatigue mitigation created by the 

20–26 minute nap. For example, if a 20- 

minute split-duty nap was to be used to 

extend an FDP so that it infringes 

deeper into the WOCL, would the 20- 

minute rest provide sufficient mitigation 

to counter the extra fatigue created by 

the additional infringement on the 

WOCL? Because the study concerning 

the 20–26 minute nap did not provide 

an answer to the issues discussed above, 

the FAA has declined to utilize it in 

determining the threshold rest amount 

for the split duty FDP extension. 

NJASAP asked whether the split duty 

rest must be scheduled in advance or 

whether it could be adjusted as 

necessary by the certificate holder. ATA 

stated that the 4-hour threshold is 

operationally unsound because split 

duty periods are ‘‘calculated 

dynamically in real time, based upon 

the actual amount of rest opportunity 

afforded.’’ ATA provided an example of 

‘‘split duty rest periods [that] may occur 

during breaks at a hub while cargo is 

loaded on an aircraft.’’ In those cases, 

‘‘[c]rewmembers [would] receive rest in 

ground facilities during the aircraft 

loading process.’’ UPS disagreed with 

the extension being based on the 

flightcrew member’s actual rest time 

‘‘behind the door’’ because it removes 

an air carrier’s ability to shorten split 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 373 

duty rest in response to an unforeseen 

circumstance, such as a weather event. 

UPS stated that this is a significant 

change from current practice because, 

currently, split duty rest most often 

occurs during an unforeseen 

circumstance. To adjust for this change, 

UPS asserted that air carriers would 

have to delay outbound flights, which 

will increase pilot fatigue by delaying 

the onset of post-FDP rest. 

The FAA has amended the split duty 

section to clarify that split duty rest 

must be scheduled in advance, and that 

the actual split duty rest break may not 

be less than the scheduled split duty 

break. The reason for the advance 

scheduling requirement is that section 

117.5(b) requires flightcrew members to 

determine at the beginning of their FDP 

whether they are sufficiently rested to 

safely perform the assigned FDP. In 

order to accurately perform this 

assessment at the beginning of their 

FDP, flightcrew members need to know 

approximately when their FDP is going 

to end. Thus, flightcrew members must 

be notified of any planned split duty 

extensions before they begin their split 

duty FDP so that they can accurately 

self-assess, at the beginning of the FDP, 

whether they are capable of safely 

performing their duties throughout the 

entire FDP. Thus, for example, a 

flightcrew member who feels fit to 

accept an overnight FDP that contains 

five hours of split duty sleep may not 

feel fit to accept an overnight FDP that 

contains only three hours of split duty 

sleep. 

In addition, knowing in advance 

about split duty rest allows a flightcrew 

member to prepare for, and to 

maximize, the rest opportunity. For 

example, a flightcrew member who does 

not know whether he or she will have 

a split duty break may drink a cup of 

coffee only to subsequently find out that 

he or she must take a three-hour split 

duty rest 20 minutes later. In contrast, 

a flightcrew member who knows in 

advance when he or she is taking a split 

duty break will not drink coffee shortly 

before the break. Because flightcrew 

members must determine their fitness 

for duty before beginning an FDP and 

because they must conduct themselves 

in a way that maximizes their rest 

opportunities, they must be informed 

prior to commencing an FDP, about the 

full extent of the split duty rest that they 

will receive during the FDP. 

The FAA understands that this 

departs from the current air carrier 

practice of reducing split duty rest in 

order to recover a schedule during 

unforeseen circumstances. To mitigate 

the impact of this change and account 

for unforeseen circumstances, this rule 

provides air carriers with a two-hour 

FDP extension (discussed previously) 

that they can use to recover their 

schedules if unforeseen circumstances 

arise. 

NJASAP asked whether an air carrier 

could obtain the split duty credit if its 

flightcrew members do not actually 

occupy the suitable accommodation 

during the split duty rest opportunity. 

UPS criticized the split duty regulation 

as not taking into account the actual 

amount of sleep that a pilot receives. 

Split duty rest taken under this 

section does not begin to count until the 

flightcrew member reaches the suitable 

accommodation. If the flightcrew 

member never reaches the suitable 

accommodation, then that flightcrew 

member’s split duty break will not 

qualify for a longer FDP. The FAA also 

emphasizes that, as discussed above, 

section 117.5(a) requires a flightcrew 

member to report for duty rested. By 

virtue of that requirement, flightcrew 

members must take advantage of any 

rest periods that are provided, and use 

them for their intended purpose, which 

is to sleep. 

The FAA has considered UPS’ 

suggestion of amending the split duty 

extension to track the actual amount of 

sleep that a flightcrew member receives 

instead of the length of the split duty 

break. However, this type of standard 

would be very difficult to implement 

because air carriers would need to track 

when each flightcrew member actually 

falls asleep. Because this would place a 

substantial burden on air carriers, the 

FAA ultimately decided to give credit 

for the length of the split duty rest 

opportunity instead of the amount of 

actual sleep received by the flightcrew 

members. 

Drs. Belenky and Graeber asserted 

that the 50% split-duty credit was 

unreasonably conservative for split-duty 

rest that is taken during usual bedtime 

hours. However, Drs. Belenky and 

Graeber cautioned that the 50% credit 

‘‘may be warranted for split duties that 

require daytime sleep.’’ ATA stated that 

the 50% credit was unjustified because 

a sleep opportunity longer than 20 

minutes provides a full minute-byminute recuperative value. ATA 

criticized the NPRM’s underlying 

assumption that a four-hour sleep 

opportunity would only result in two 

hours of sleep, arguing that this 

assumption did not apply to groundbased suitable accommodations. 

Northern Air Cargo asked for a more 

generous split duty credit. ATA 

proposed a split duty credit that 

increases in proportion to the length of 

the split duty rest. CAA and FedEx 

proposed a split duty credit ranging 

from 100 to 300%, based on the time of 

day in which the credit is given. 

As stated above, in response to 

comments, the FAA conducted further 

SAFTE/FAST modeling to determine 

whether the split duty provision could 

be modified without decreasing safety. 

The modeling has revealed that a 100% 

credit for split duty rest would not 

result in flightcrew member 

effectiveness dropping below 77 for any 

portion of a series of 5-night FDPs. As 

such, the split duty credit has been 

increased to provide for an extension 

equal to 100% of the split duty rest. The 

FAA has considered CAA and FedEx’s 

suggestion of providing more than a 

100% credit, but, due to the concerns 

associated with nighttime flying, the 

FAA would need additional data to 

provide more than a 100% credit for 

split duty. 

The FAA was also concerned with the 

fact that the above comments appear to 

show some misunderstanding of how 

the split duty section works. In order to 

clarify the meaning of the split duty 

section, the FAA has amended this 

section as follows. 

First, the split duty framework, as set 

out in the NPRM, would count split 

duty rest as part of a flightcrew 

member’s FDP, and then extend that 

FDP by the amount of the split duty 

credit. Now that the split duty credit has 

been increased to 100%, the FAA has 

determined that the NPRM’s split duty 

framework is needlessly complicated. 

As such, this section has been amended 

so that split duty rest that meets the 

requirements of this section will simply 

not count as part of the FDP. 

Second, split duty rest was intended 

to be taken at night so that it could 

provide flightcrew members with restful 

nighttime sleep. See 75 FR 55866. To 

ensure that the split duty rest credit is 

not awarded for rest taken during the 

day, this section has been amended to 

require that split duty rest only be taken 

between 22:00 and 05:00 local time. 

Third, as the name implies, ‘‘split 

duty’’ rest should be provided in the 

middle of a flightcrew member’s FDP. 

To ensure that split duty rest is not 

taken earlier, the FAA has added a 

condition that split duty rest cannot be 

provided before the completion of the 

first flight segment in an FDP. Finally, 

the FAA has moved all of the split duty 

conditions into subsections to improve 

their readability. These changes should 

provide additional clarity, and ensure 

that the split duty section is used in the 

intended manner. 

UPS, Kalitta Air, and ATA stated that 

the credit given for split duty rest in 

ground-based suitable accommodations 

was less than the credit given for some 


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374 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

augmented flights, which provide a 

lower quality rest in aircraft-based rest 

facilities. UPS pointed out that, under 

the proposed rule, ‘‘[a] 90-minute rest 

opportunity for a relief officer on an 

augmented flight in an aircraft with a 

Class I rest facility permits five 

additional hours of operation versus an 

un-augmented flight.’’ UPS added that 

this disparity between augmented 

flights and split duty ‘‘is even more 

illogical given that at a ground facility, 

all flightcrew members receive the same 

sleep opportunity, whereas while on 

board, only one pilot can sleep at a 

time.’’ NACA proposed a split duty 

credit that is consistent with the credit 

given for Class 1, 2, and 3 rest facilities 

in augmented FDPs. 

Augmented flights and split duty 

provide different amounts of credit 

because they pose different safety risks. 

An augmented flight contains more than 

the minimum number of flightcrew 

members, which allows the flightcrew 

members to work in shifts during a 

flight to safely fly the aircraft. If, during 

the flight, a flightcrew member realizes 

that he or she is too tired to safely 

perform his or her duties, the extra 

flightcrew member(s) can simply take 

over those duties and safely land the 

flight at its intended destination. 

Split duty, on the other hand, applies 

only to unaugmented flights, which 

contain the minimum number of 

flightcrew members necessary to safely 

fly an aircraft. If, during an 

unaugmented flight, a flightcrew 

member realizes that he or she is too 

tired to safely perform his or her duties, 

there is no one there who could take 

over those duties. Instead, the fatigued 

flightcrew member must eventually land 

the aircraft to the best of his or her 

ability. Because a fatigued flightcrew 

member on an unaugmented flight 

presents a far greater safety risk than a 

fatigued augmented flightcrew member, 

the FAA used a more conservative 

approach in determining the split duty 

credit than it did in determining the 

limits for augmented operations. 

However, the FAA is open to the 

possibility of awarding greater credit for 

split duty within the scope of an FRMS 

if a certificate holder is able to provide 

data that shows that additional credit 

would not reduce safety. 

ATA suggested that the FAA allow 

split duty FDPs to extend beyond the 

proposed limit on split duty extensions 

in order to consistently apply the 

principles that underlie augmented 

operations. RAA criticized the 12-hour 

split-duty FDP limit as arbitrary, arguing 

that it unnecessarily limits FDPs that 

contain a large amount of restful split 

duty sleep. RAA also pointed out that 

the 12-hour limit permits greater split 

duty extensions for less-safe overnight 

flights that have a shorter FDP limit. 

RAA proposed abolishing the limit on 

split duty extensions. SkyWest 

proposed setting the split duty FDP 

limit at 14 hours if the split duty rest is 

at least 4 hours long. CAA and FedEx 

stated that the split duty FDP limit 

should be set at 15 hours. 

The SAFTE/FAST modeling that was 

conducted in response to comments 

shows that there are no safety concerns 

with increasing the split duty limit to 14 

hours. This section has been amended 

accordingly. However, the FAA has 

reservations about a split duty limit that 

exceeds 14 hours. This is because 

section 117.25 now requires a 10-hour 

rest period, and if an FDP is longer than 

14 hours, a flightcrew member’s FDP/ 

rest cycle will exceed 24 hours. This 

type of cycle, if done consecutively, will 

result in the beginning of a flightcrew 

member’s FDP being pushed back each 

day by the number of hours that the 

previous day’s FDP/rest cycle exceeded 

24. 

As an example, take an FDP that 

begins at 5 p.m. That FDP is normally 

12 hours long, but with a 7-hour split 

duty break, that FDP would end at noon. 

The flightcrew member must then 

obtain 10 hours of rest, which means 

that he or she would start the next day’s 

FDP at 10 p.m. The 10 p.m. FDP is 

normally 11 hours, but with 6 hours of 

split duty rest, it would end at 3 p.m. 

the next day. The flightcrew member 

would then receive 10 hours of rest, 

which would result in his or her next 

FDP starting at 1 a.m. Thus, with no 

limit on split duty FDPs, a flightcrew 

member could, in three days, go from a 

5 p.m. to a 10 p.m. to a 1 a.m. FDP start 

time. This type of shifting of FDP start 

times could have serious adverse effects 

on cumulative fatigue, and without 

more data, the FAA has determined not 

to take the risk of allowing split duty 

FDPs to exceed 14 hours. 

NACA, Atlas Air, and NAA stated 

that, because section 117.5 gives a 

flightcrew member the discretion to 

terminate an FDP, there is no need to 

further restate the flightcrew prerogative 

to accept or decline split duty 

accommodations or FDP extensions 

here. 

The FAA agrees with the above 

commenters, and this section has been 

amended accordingly. The FAA once 

again emphasizes that, as discussed 

above, section 117.5(a) requires a 

flightcrew member to report for duty 

rested. By virtue of that requirement, 

flightcrew members must use their rest 

periods for the intended purpose which 

is to obtain sleep. 

L. Consecutive Nights 

As discussed above, one type of 

fatigue that this rule addresses is 

cumulative fatigue. In formulating this 

rule, the FAA was particularly 

concerned about cumulative fatigue 

caused by repeatedly flying at night. See 

75 FR 55867. SAFTE/FAST modeling 

showed substantially deteriorating 

performance after the third consecutive 

nighttime FDP for flightcrew members 

who worked nightshifts during the 

WOCL and obtained sleep during the 

day. Id. However, the FAA noted that if 

a sleep opportunity is provided during 

each nighttime FDP, that sleep 

opportunity may sustain flightcrew 

member performance for five 

consecutive nights. 

To account for the above factors, the 

FAA proposed to limit nighttime FDPs 

to three consecutive nights. However, 

the FAA proposal allowed a flightcrew 

member to exceed the three-night limit 

if that flightcrew member received at 

least four hours of split duty rest during 

each of his or her nighttime FDPs. 

ATA, NACA, AAC, five individual 

commenters, and a number of air 

carriers objected to the consecutivenight limit, arguing that it was 

unreasonable and ignored operational 

experience. ATA stated that ‘‘[t]he 

industry’s substantial experience with 

nighttime operations shows that pilots 

who frequently perform night duty are 

well suited to consecutive night duties 

because they have training and 

experience specific to such operations.’’ 

NACA, NAA, and Kalitta Air suggested 

completely removing the consecutivenight limit, arguing that restricted 

nighttime FDP limits made the 

consecutive-night limit redundant. AAC 

also suggested removing the consecutive 

nighttime limit, arguing that some pilots 

are capable of adjusting their circadian 

rhythm to effectively sleep during the 

day. AAC asserted that a threeconsecutive-night limit would unfairly 

penalize those pilots. 

Conversely, one individual 

commenter stated that consecutive 

nighttime operations lower alertness. 

NJASAP, IPA, and IBT Local 1224 

supported the consecutive-nights limit. 

IPA and IBT Local 1224 indicated that, 

according to science and operational 

experience, a flight duty period 

encompassing the hours of 0200 and 

0600 is challenging, as fatigue is more 

likely. These commenters stated that the 

additional fatigue is a result of working 

during the WOCL and having the rest 

period occur during the daytime. 

Nighttime operations are particularly 

fatiguing because flightcrew members 

who work during these operations do so 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 375 

71See Philippa H. Gander, et al., Flight Crew 

Fatigue IV: Overnight Cargo Operations, Aviation, 

Space, and Environmental Medicine, Vol. 69, No. 

9, Sec. II (Sep. 1998) (discussing sleep debt that 

builds up over successive nighttime work shifts); 

Philippa H. Gander, et al., Crew Factors in Flight 

Operations VII: Psychophysiological Responses to 

Overnight Cargo Operations, NASA Technical 

Memorandum 110380 (Feb. 1996) (discussing the 

impact of night shifts on flightcrew members). 

72See Hans P.A. Van Dongen, Gregory Belenky, 

Investigation Into Motor Carrier Practices to 

Achieve Optimal Commercial Motor Vehicle Driver 

Performance, Report No: FMCSA–RRR–10–005. 

73 Id. 

74See Wyatt, supra 

note 64; Akerstedt, supra note 64. 

during the WOCL after obtaining lessrestful daytime sleep. Studies have 

shown that this type of work not only 

leads to transient fatigue, but also leads 

to cumulative fatigue if repeated over a 

series of consecutive nights.71 SAFTE/ 

FAST modeling also shows flightcrew 

member effectiveness decreasing after a 

flightcrew member works on 

consecutive nighttime FDPs. In 

addition, a study conducted by the 

Federal Motor Carrier Safety 

Administration (FMCSA) found in a 

laboratory setting that working five 

nights in a row while sleeping during 

the day leads to impaired continued 

performance even if a 34-hour ‘‘restart’’ 

rest period is provided at the conclusion 

of the five-night work period.72 This 

study indicates that simply relying on 

the required 30 hour rest period in a 

rolling 168 hour (one week) period is 

insufficient to assure sustained 

performance for individuals working 

nighttime FDPs. 

In order to address cumulative fatigue 

caused by consecutive nighttime FDPs, 

the FAA has decided to retain the 

consecutive-night limitation. This 

limitation is necessary because the 

restricted nighttime FDP limits in Table 

B only address the transient fatigue 

caused by working at night. The limits 

in Table B remain the same regardless 

of how many consecutive nighttime 

FDPs a flightcrew member works, and as 

such, they do not address the 

cumulative fatigue caused by repeatedly 

working through the nighttime hours. 

With regard to AAC’s suggestion that 

some flightcrew members can 

effectively sleep during the day, this 

suggestion (which may be true for 

certain individuals) generally goes 

against scientific evidence showing that 

working on consecutive nighttime FDPs 

creates a sleep debt.73 Since regulations 

are drafted to address the majority of the 

population, the FAA believes the 

approach adopted here is appropriate. 

Drs. Belenky and Graeber cited the 

Mollicone 2007 and 2008 laboratory 

studies for the proposition that a sleep 

period that was split into two naps (one 

at night and one during the day) had the 

same effect as a single continuous block 

of sleep taken at night. Drs. Belenky and 

Graeber suggested that 2 hours of split 

duty rest ‘‘should sustain performance 

across more than three consecutive 

nights’’ as long as flightcrew members 

obtained at least 5 hours of sleep during 

the day. ATA, CAA, and UPS endorsed 

Drs. Belenky and Graeber’s analysis and 

recommendation. 

RAA, ATA, UPS, FedEx and a number 

of other air carriers added that requiring 

a 4-hour split duty break in order to 

exceed 3 consecutive nights would 

result in more first-night shifts and more 

day and night duty schedule switches 

because air carriers will schedule pilots 

for multiple 3-night series of FDPs 

rather than a single 5-night FDP series. 

SkyWest stated that a consecutive-night 

restriction may disrupt its continuous 

duty operations, which operate at night 

and provide flightcrew members with a 

4–6 hour rest opportunity. UPS 

emphasized that the proposed 

consecutive-night restriction would 

significantly disrupt its existing 

business operations. Atlas Air added 

that cargo air carriers cannot reasonably 

provide a 4-hour mid-duty break under 

their current business models. 

ATA and CAA emphasized that the 

consecutive-night limit would 

disproportionately impact the cargo 

industry because that industry relies 

heavily on night operations. UPS stated 

that, during a night shift, its ‘‘flightcrew 

members typically enjoy, on average, at 

least a two hour rest in [its] state of the 

art sleep facilities.’’ FedEx stated that its 

flightcrew members are typically 

provided mid-duty rest ranging from 2 

to 4.5 hours while freight is offloaded, 

sorted, and reloaded. UPS asked the 

FAA to recognize the recuperative value 

of mid-duty sleep that exceeds 20 

minutes. 

The Mollicone studies cited by Drs. 

Belenky and Graeber have, at best, only 

a limited applicability to the 

consecutive-night limit because the 

subjects in those studies received a large 

block of anchor sleep at night and midduty rest breaks during the daytime. In 

contrast, flightcrew members working 

on night shifts receive their large block 

of anchor sleep during the daytime, 

which, as other studies have shown, 

provides them with sleep that is less 

restorative than nighttime sleep.74

The FAA was concerned, however, 

with comments indicating that the 4- 

hour-mid-duty rest threshold for 

exceeding the 3-consecutive-night limit 

was operationally unworkable. The FAA 

notes that, even though all-cargo 

operations are not required to abide by 

part 117, those all-cargo operations that 

opt into part 117 would be subject to the 

consecutive-night limit. In response to 

concerns raised by the commenters, the 

FAA conducted further SAFTE/FAST 

modeling to examine the safety 

ramifications of changing the length of 

the mid-duty rest break necessary to 

exceed the 3-consecutive-night limit. 

The SAFTE/FAST modeling showed 

that a 5-night FDP, in which a 

flightcrew member was provided with a 

2-hour mid-duty rest break each night, 

was actually safer than a 3-night FDP 

with no rest break. The modeling also 

showed that breaks of less than 2 hours 

were insufficient to account for the 

cumulative fatigue of working on 

multiple consecutive nights. 

In response to the data provided by 

the SAFTE/FAST modeling, the FAA 

has amended the consecutive-night 

limit to allow a flightcrew member to 

work for up to 5 consecutive nights if 

he or she receives a 2-hour mid-duty 

rest break each night. This amendment 

will greatly reduce the burden of the 

consecutive-night limit on cargo 

industry that opts into this rule because 

FedEx and UPS’ comments indicate that 

these carriers already provide their 

crewmembers who work nightshifts 

with an average of 2 hours of mid-duty 

rest. This will allow continuous duty 

operations to be conducted 5 nights a 

week if these operations provide 

flightcrew members with at least 2 

hours of mid-duty rest. 

RAA, Kalitta Air, Kalitta Charters, 

Capital Cargo, and four individual 

commenters suggested amending the 

consecutive-night limit to permit four 

nights without any mid-duty rest breaks. 

ALPA, IPA, SWAPA, IBT Local 1224, 

and Flight Time ARC suggested 

allowing four consecutive nighttime 

FDPs if there is a 12-hour rest period 

after each FDP. UPS suggested that, if 

the FAA restricts consecutive nighttime 

operations, unaugmented flightcrews 

should be allowed to operate at Table C 

FDP limits so long as they have received 

a sleep opportunity in a rule-compliant 

ground-based facility. 

This rule does not allow 4 

consecutive nighttime FDPs without a 

mid-duty rest break because flightcrew 

member performance deteriorates after a 

third consecutive nighttime FDP. 

Increasing the length of the rest between 

FDP periods is not the preferred way of 

resolving the issue because nightshift 

workers get their between-FDP rest 

during the daytime. Because daytime 

sleep is less restful than nighttime sleep, 

the FAA has chosen to focus its 

regulatory efforts on nighttime mid-duty 

rest breaks instead of longer daytime 


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rest breaks. However, if air carriers 

provide the FAA with FRMS data 

showing that longer daytime breaks can 

sufficiently mitigate cumulative fatigue, 

the FAA may allow those air carriers to 

exceed the consecutive-night limit. In 

addition, as discussed in the preceding 

section, the FAA has reduced to 2 hours 

the mid-duty-break threshold necessary 

to work during 5 consecutive nights. 

This reduction will greatly reduce the 

burden of the consecutive-night limit on 

air carriers. 

The FAA also declines UPS’ proposal 

of allowing an unaugmented flightcrew 

working a nightshift to work at the FDP 

levels specified in Table C. As discussed 

above, the augmented FDP limits in 

Table C are higher than the 

unaugmented FDP limits in Table B 

because augmentation provides a 

number of fatigue-mitigation benefits. In 

contrast, the consecutive-night limit is 

simply intended to account for the 

cumulative fatigue caused by working at 

night and does not replicate the benefits 

provided by augmentation. Accordingly, 

imposition of the consecutive-night 

limit is not sufficient to allow 

unaugmented flightcrews to work on the 

longer FDPs that are permitted for 

augmented flightcrews. 

A number of commenters asked the 

FAA to define ‘‘nighttime FDP.’’ Many 

of the commenters suggested that 

‘‘nighttime FDP’’ be defined as an FDP 

that infringes on the WOCL. The 

consecutive-night limit is intended to 

apply to FDPs that infringe on the 

WOCL because operations conducted 

during the WOCL significantly increase 

cumulative fatigue. Consistent with the 

commenters’ suggestion, the 

consecutive-nighttime-operations 

section has been amended to clarify that 

the consecutive-night limit only applies 

to FDPs that infringe on the WOCL. In 

addition, in light of the amendments 

that have been made to the split-duty 

section, the consecutive-nighttimeoperations section has also been 

amended to clarify that an FDP whose 

split-duty rest infringes on the WOCL 

counts as a nighttime FDP for the 

purposes of this section. 

NJASAP asked the FAA for 

clarification about how the rule 

determines whether two nighttime FDPs 

are ‘‘consecutive.’’ Consecutive nights 

are determined based on calendar 

nights. Thus, if a flightcrew member 

works on a WOCL-infringing FDP 

during one night, and then works during 

a WOCL-infringing FDP during the 

following night, that flightcrew member 

will have worked on two consecutive 

nights. If, however, the flightcrew 

member works one night, has the next 

night off, and then works the following 

night, these nighttime FDPs would not 

be considered ‘‘consecutive’’ for the 

purposes of this section. 

ATA also objected to applying the 

consecutive-night limit to augmented 

operations. It stated that augmented 

flightcrew members receive significant 

inflight rest, and that the consecutivenight limit was redundant as applied to 

augmented FDPs. 

Rest on the ground in a suitable 

accommodation is superior to rest 

onboard an aircraft while that aircraft is 

in flight. As such, any augmented 

operations that span more than three 

consecutive nights must mitigate the 

fatigue of these operations by providing 

flightcrew members with the two hours 

of mid-duty rest in a suitable 

accommodation required by this 

section. 

ATA stated that, because simulator 

training is now considered part of an 

FDP, the consecutive-night limit would 

also limit training opportunities for 

flightcrew members. ATA argued that 

this is an unnecessary burden because 

flightcrew members would receive a full 

rest period after training. 

Simulator training is only considered 

to be part of an FDP if it takes place 

before a flightcrew member flies an 

aircraft and there is no intervening rest 

period taken pursuant to section 117.25. 

This is because all duty after a legal rest 

and prior to flight is part of an FDP. If 

the simulator training does not take 

place before a flightcrew member flies 

an aircraft, the simulator training is not 

considered to be part of an FDP, and it 

is unaffected by the consecutive-night 

limit. 

Two individual commenters asked the 

FAA to prohibit air carriers from 

switching pilots from night to day shifts. 

These commenters also asked that 

circadian rhythms not be shifted by 

more than two hours from the prior day. 

However, these suggestions are outside 

the scope of this rulemaking. 

M. Reserve 

As stated in the NPRM, the term 

‘‘reserve’’ has not been addressed in the 

part 121 regulations; however this term 

has been the subject of several legal 

interpretations which include a 

determination of when a flightcrew 

member is on duty and whether the 

required rest associated with a duty 

period is impeded by a flightcrew 

member being in a reserve status. The 

FAA proposed that unless specifically 

designated otherwise, all reserve is 

considered long-call reserve. 

Additionally, the time that a flightcrew 

member spent on airport/stand-by 

reserve would be part of that flightcrew 

member’s FDP. For short-call reserve, 

the NPRM proposed that all time spent 

within the reserve availability period is 

duty; the reserve availability period may 

not exceed 14 hours; no flightcrew 

member on short call reserve may 

accept and no certificate holder may 

schedule the flightcrew member’s next 

reserve availability period unless that 

flightcrew member is given at least 

14 hours rest; and the maximum reserve 

duty period for an unaugmented 

operation is the lesser of: 

—16 hours, as measured from the 

beginning of the reserve availability 

period; 

—The assigned FDP, as measured from 

the start of the FDP; 

—The FDP in Table B of this part plus 

4 hours, as measured from the 

beginning of the reserve availability 

period; or 

—If all or a portion of a reserve 

flightcrew member’s reserve 

availability period falls between 0000 

and 0600, the certificate holder may 

increase the maximum reserve duty 

period by one-half of the length of the 

time during the reserve availability 

period in which the certificate holder 

did not contact the flightcrew 

member, not to exceed 3 hours. 

For an augmented operation, the 

NPRM proposed that the maximum FDP 

is the lesser of the assigned FDP, as 

measured from the start of the FDP; the 

FDP in Table C plus 4 hours, as 

measured from the beginning of the 

reserve availability period; or if the 

reserve availability period falls between 

a portion of 0000–0600, the maximum 

reserve availability period may be 

increased by one-half the length of the 

time during which the certificate holder 

did not contact the flightcrew member 

but capped at 3 hours. 

The FAA proposed that long-call 

reserve does not count as duty and that 

a flightcrew member would need to 

receive a 12-hour notice of report time 

from the certificate holder if the 

flightcrew member is being assigned an 

FDP that would begin before and 

operate into his or her WOCL. 

Lastly, the NPRM proposed 

provisions that would permit a 

certificate holder to shift a flightcrew 

member’s reserve availability period 

subject to meeting certain conditions. 

Commenters stated overall that the 

entire section was overly complicated 

and complex, with some commenters 

stating that it also was confusing and 

illogical. Industry largely objected to the 

classification of short-call reserve as 

duty. ALPA, COPA, FedEx ALPA, 

SWAPA and APA all commented 

favorably on short-call reserve as part of 

duty. These comments were addressed 


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in the Definitions section, which 

removed short-call reserve from the 

definition of the term ‘‘duty.’’ 

NACA, Atlas, NAA, and Kalitta argue 

that limiting short call reserve to 

14 hours is unwarranted for their 

operations. Kalitta separately 

recommended that the reserve 

availability period should be 16 hours 

followed by 8 hours off. Under Kalitta’s 

recommendation, if a flightcrew 

member on short-call reserve is called 

out within the first six hours of that 

reserve availability period, he or she can 

utilize the entire maximum FDP, as 

described in Table B or C. If the 

flightcrew member is called out after the 

first six hours of the reserve availability 

period, then all the time in short-call 

reserve should be subtracted from the 

maximum FDP, unless the uninterrupted short-call reserve included 

the flightcrew member’s WOCL. Then 

the full period of the WOCL should be 

considered rest. Kalitta argues that this 

will permit long-haul, non-scheduled 

operators the ability to continue current 

operations. 

NACA, Atlas, and NAA also argue the 

proposal is too restrictive because the 

controlling limitation will always be the 

assigned FDP, which is a maximum of 

13 hours. UPS and ATA state that there 

is no justification for limiting 

unaugmented short call reserve to 

assigned FDP. They contend that this 

restriction materially deviates from the 

ARC recommendation concerning this 

element of reserve. 

ATA further comments that using the 

FDP to set the maximum reserve duty 

period directly contradicts the NPRM’s 

definition of ‘‘reserve duty period’’ as 

the reserve availability period plus the 

flight duty period. 

RAA proposed instead that for 

unaugmented operations, if a flightcrew 

member is given an FDP while on shortcall reserve, the FDP, measured from the 

time for reporting for assignment, is 

limited to the Table B maximum FDP 

minus the full time spent on reserve 

during the Reserve Availability Period 

(RAP) up to the report time. Northern 

Air Cargo (NAC) contends that there is 

no logic in not allowing for the full FDP 

after callout. Delta argued that while on 

reserve, limiting reserve duty periods to 

scheduled FDP rather than maximum is 

overly restrictive. 

ALPA, COPA, FedEx ALPA, SWAPA 

and APA submitted the chart below 

depicting the maximum FDP 

permissible based on the start of time of 

the reserve availability period: 

They argue that the maximum reserve 

duty period, which would include 

phone availability and/or FDP 

assignments, is measured from the start 

of the RAP and ends at the earlier of the 

start of the RAP time plus the value in 

Table E or the FDP in Table B. The 

purpose of this process is to ensure that 

the reserve pilot does not have an 

allowable FDP limit that is greater than 

the FDP of the line holder whom that 

reserve flightcrew member is paired 

with and does not impact the certificate 

holder because the line holder and 

reserve flightcrew member end point 

will be the same. 

Peninsula Airways questions whether 

under this section, a flightcrew member 

on short-call reserve must have had 14 

hours of rest period at the beginning of 

the current reserve availability period. 

The FAA agrees that the proposed 

reserve provisions were overly 

complicated and has made numerous 

changes to reduce the complexity. The 

ARC came to a number of conclusions 

during its discussion of reserve. The 

FAA has decided to rely on the 

expertise represented in the ARC to 

address the issue of reserve duty. The 

FAA does not support Kalitta’s proposal 

described above, which would increase 

the permissible reserve availability 

period to 16 hours. Kalitta has not 

provided supporting rationale that 

warrants modifying the collective 

opinion of the ARC. Therefore, this rule 

adopts the proposal that limits the 

short-call reserve availability period, in 

which the flightcrew member is not 

called to report to work, to 14 hours. 

The FAA has modified the regulatory 

provisions addressing the reserve duty 

period and unaugmented FDPs. Under 

the NPRM, the maximum reserve duty 

period would be the lesser of 16 hours, 

the assigned FDP, or the FDP under 

Table B plus four hours. The FAA 

agrees with the commenters that 

limiting the reserve duty period to the 

assigned FDP was overly restrictive and 

could result in situations where the 

reserve duty period was unnecessarily 

short, and would be unworkable for the 

certificate holders. The FAA has deleted 

that provision but retains the other two 

proposed limitations for unaugmented 

operations. Therefore, the adopted 

regulatory provisions addressing reserve 

and unaugmented operations provide 

that the total number of hours a 

flightcrew member may spend in a flight 


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75 75 FR 55871 and n.42 (citing scientific studies). 

duty period and reserve availability 

period may not exceed 16 hours or the 

maximum applicable flight duty period 

in Table B plus four hours, whichever 

is less. This will allow most FDPs to be 

accommodated by a flightcrew member 

on short-call reserve. Additionally, the 

proposed provisions for giving credit for 

not calling during the window of 

circadian low are complicated and 

unnecessary given the above adopted 

modifications. Therefore, the credit 

provisions have been dropped from this 

rule. 

In response to the question posed by 

Peninsula Airways regarding whether 

the flightcrew member, who has 

concluded a reserve availability period, 

must have a 14 hour rest period before 

beginning the next reserve availability 

period, the FAA modified this provision 

in accordance with the amendments in 

§ 117.25 Rest period. A flightcrew 

member must be given a 10 consecutive 

hour rest period immediately before 

beginning the reserve or flight duty 

period. The regulation governing reserve 

has been adjusted for consistency with 

the rest provisions. Therefore, if a 

flightcrew member completes a reserve 

availability period, he or she must 

receive a rest period, as required in 

§ 117.25(e), prior to accepting a 

subsequent reserve availability period. 

The FAA also does not agree with the 

comments from the labor organizations 

that another Table is necessary for the 

short-call reserve duty period. Those 

organizations argue that incorporating 

the above chart would ensure that the 

reserve flightcrew member would not 

have an allowable FDP that is greater 

than the line holder with whom he or 

she is paired. This argument is not 

persuasive. Each flightcrew member is 

subject to the maximum permissible 

FDP given that flightcrew member’s 

recent assignments and rest 

requirements. Consequently, it isn’t 

reasonable to artificially limit a reserve 

pilot to the FDP limit of the line holding 

pilot when no such limit applies to the 

line holding flightcrew members. 

Kalitta and UPS questioned why a 

flightcrew member on long-call reserve 

and assigned an FDP that begins before 

and operates in the WOCL, would 

require a 12-hour rest. These 

commenters argue that a line holder 

may be scheduled for duty during the 

WOCL with 9 hours rest and that the 

long-call reserve flightcrew member 

should have similar treatment as the 

line holder. 

This provision simply requires that 

the affected flightcrew member must 

receive 12 hours notice that he or she 

will be on duty during the WOCL and 

will need to plan his or her rest during 

the day. This way, the flightcrew 

member can structure the rest period in 

order to provide the best sleep 

opportunity. As daytime rest is not as 

restorative as nighttime rest, the 

flightcrew member may choose to take 

multiple naps rather than attempting to 

get a full consecutive 8 hours of sleep 

during the day. This is comparable to a 

lineholder who knows in advance that 

he or she is scheduled for duty during 

the WOCL, and adjusts his or her sleep 

opportunity accordingly. 

NJASAP questions why the rule does 

not limit long-call reserve. APA also 

added that flightcrew members on long 

call reserve should receive a rest period 

that includes a physiological night prior 

to assignment. There is no reason to 

limit long-call reserve because, by 

definition, the certificate holder must 

notify the flightcrew member prior to 

receiving rest under 117.25(e). 

Similarly, as the flightcrew member is 

receiving a 10 hour rest period prior to 

the flight, it is not reasonable to limit 

that rest to only the hours between 0100 

and 0700. This would unnecessarily 

restrict the certificate holder’s ability to 

use long-call reserve. 

Kalitta and UPS oppose the 

provisions limiting the shifting of 

reserve availability periods. RAA also 

opposes these provisions and argues 

that they actually hinder fatigue 

reduction by forcing more flightcrew 

schedule disruptions through delay or 

cancellations than would otherwise be 

necessary. NACA, Atlas, and NAA 

contend that the provisions addressing 

the shift of reserve availability periods 

are unworkable because it restricts 

forward shifts to a maximum of 12 

hours, which can ultimately result in 

stranded flights. These commenters 

illustrate, as an example, if a flight is 

delayed for 13 hours, this rule would 

require the aircraft to sit on the ground 

for hours because the reserve flightcrew 

would be unable to operate the next 

flight until they have completed the 

required rest. 

The organizations representing labor 

also seek to limit, to once in a rolling 

168 hour period, the provision that 

would require a short call reserve 

flightcrew member coming off of a 14 

hour reserve availability period to have 

a 14 hour rest before accepting an FDP 

that begins before the flightcrew 

member’s next reserve availability 

period. The commenters contend that 

without this once per 168 hour 

limitation, a flightcrew member could 

be in a cycle of continuous reserve 

availability periods. 

Since the rest requirements mandate a 

rest period prior to accepting any shortcall reserve period and given the above 

modifications to the rule, the FAA 

concludes that the limits on shifting 

reserve availability periods are 

unnecessary and would have added a 

level of complication that is not 

warranted. This provision is not 

adopted. 

N. Cumulative Limits 

In formulating this rule, the FAA 

found that ‘‘[s]cientific studies suggest 

that long periods of time on duty 

infringe upon an individual’s 

opportunity to sleep, thus causing a 

‘sleep debt’ which is also known as 

cumulative fatigue.’’ 75 To limit the 

accumulation of cumulative fatigue by 

flightcrew members, the FAA proposed 

a cumulative duty-period limit of 65 

hours in a 168-hour period (7 days) and 

a limit of 200 hours in a 672-hour 

period (28 days). These cumulative 

duty-period limits were slightly 

increased for short-call reserve and for 

deadhead transportation in a seat that 

allows for a flat or near flat sleeping 

position. 

The FAA also proposed cumulative 

FDP limits based on the standards of 

other aviation authorities. The proposed 

cumulative FDP limits restricted FDP to 

60 hours in a 168-hour period and 190 

hours in a 672-hour period. In addition, 

the FAA proposed retaining the existing 

cumulative flight-time limits, which are 

100 hours in a 28-day period and 1,000 

hours in a 365-day period. 

Alaska Airlines stated that the 

proposed subsection 117.23(a) 

concerning cumulative FDP limits was 

ambiguous and arguably made this 

section apply to flights that a flightcrew 

member conducted on his or her days 

off. Alaska Airlines and Delta argued 

that an air carrier should not be held 

responsible for flights that a flightcrew 

member performs on his or her days off 

that are not assigned by the air carrier. 

Conversely, SWAPA stated that, due to 

the complexity of the cumulative limits, 

the certificate holder should have the 

sole responsibility of determining 

whether flightcrew members are in 

compliance with the applicable 

cumulative limits. 

The cumulative limits in section 

117.23 include any flying performed by 

the flightcrew member on behalf of any 

certificate holder, or 91K Program 

Manager during the applicable periods. 

It does not include personal flying. 

Subsection 117.23(a) has been amended 

to clarify this point. The reason that this 

section includes all flights conducted 

for a certificate holder or program 

manager is because a flightcrew member 

accumulates fatigue on those flights. A 


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flightcrew member accumulates fatigue 

whenever he or she flies an aircraft. The 

flightcrew member does not accumulate 

less cumulative fatigue simply because 

the flying is conducted for another 

operator. 

The FAA has considered the air 

carriers’ argument that the proposed 

subsection 117.23(a) may affect their 

scheduled flights as a result of flights 

that they do not assign to their 

flightcrew members. However, the FAA 

believes that its cumulative-limit 

approach is justified in light of the fact 

that compliance with this rule is a joint 

obligation that applies to flightcrew 

members as well as air carriers. Thus, 

the FAA expects flightcrew members to 

inform their employing air carriers of 

flying that they conduct on days off that 

would impact the cumulative limits set 

out in this rule, thus allowing all parties 

to abide by the applicable cumulative 

limits. 

The FAA also declines SWAPA’s 

suggestion that air carriers bear sole 

responsibility for determining 

compliance with the cumulative limits. 

As discussed in the preceding 

paragraph, without flightcrew member 

assistance, air carriers may not even 

know about some of the flying 

performed by flightcrew members. 

While the rolling time periods used in 

this section may not be as easy to keep 

track of as calendar periods, the FAA 

expects both flightcrew members and air 

carriers to be aware of how many hours 

the flightcrew members have worked 

and to abide by the cumulative limits of 

this section. 

RAA opposed the cumulative dutyperiod limits, arguing that duty was a 

nebulous concept that was hard to 

define, and that cumulative duty-period 

limits are unnecessary in light of the 

cumulative FDP limits. NACA and NAA 

stated that an air carrier should be able 

to assign additional duty time if no 

further FDPs are contemplated because 

‘‘[t]here is no further risk of an aviation 

accident unless flight is involved.’’ 

NACA, UPS, and a number of other air 

carriers added that the inclusion, in 

duty limitations, of administrative 

duties adversely affected flight-qualified 

management personnel and addressed 

work-life issues that had nothing to do 

with aviation safety. IPA disagreed, 

arguing that ‘‘[j]ust as the certificate 

holder tracks flight time and flight duty 

periods, administrative duties should 

also be tracked.’’ IPA stated that 

subordinate officials who work in an 

office all day and fly at night are more 

likely to be fatigued. 

ATA and UPS stated that the 

proposed rule unfairly expands the 

concept of duty to ‘‘circumstances 

beyond the carriers’ control such as, 

random drug tests.’’ RAA stated that the 

duty-period limits essentially limited 

the time that flightcrew members spend 

on non-flying tasks, but that this was 

not a significant factor in flightcrew 

scheduling. These commenters added 

that air carriers could not always control 

the types of seats available to 

deadheading flightcrew members, and 

that they should not be penalized for 

being unable to provide deadheading 

flightcrew members with flat or near flat 

seats. 

The FAA agrees with industry 

comments that cumulative duty-period 

limits are unnecessary in this rule. 

Cumulative duty-period limits were 

intended to address the following: (1) 

Deadheading, (2) short-call reserve, and 

(3) air carrier directed non-flight 

activities that lead to fatigue during 

flight. As discussed in other portions of 

this preamble, the FAA has amended 

other parts of this rule to address 

fatigue-related concerns raised by 

deadheading and short-call reserve. 

Turning to the fatigue-related issues 

of non-flight activities, on reevaluation, 

the FAA has determined that the FDP 

limits in this rule fully address the nonflight activities that could contribute to 

flightcrew member fatigue. This is 

because the only non-flight activities 

that have a significant impact on fatigue 

during flight are activities that occur 

immediately before the flight without an 

intervening rest period. Since there is 

no intervening rest between the nonflight activities and piloting an aircraft, 

the fatigue accumulated while 

performing these non-flight activities 

remains with the flightcrew member 

when that flightcrew member pilots an 

aircraft. Therefore, all non-flight 

activities that occur immediately before 

a flight without an intervening rest 

period are part of an FDP and are 

appropriately restricted by the FDP 

limits. 

The other non-flight (non-FDP) 

activities do not significantly affect the 

fatigue experienced during flight 

because there is an intervening rest 

period between these activities and the 

beginning of an FDP. Consequently, the 

FAA has eliminated the cumulative 

duty period limits from this rule. 

RAA, NACA, and a number of air 

carriers opposed the cumulative flighttime limits, arguing that FDPs were the 

actual source of flightcrew member 

fatigue. Because FDPs are limited by the 

proposed cumulative FDP limits, these 

commenters argued that the cumulative 

flight-time limits are unnecessary. 

Existing regulations impose 30-day 

flight-time limits of 100 hours and 

calendar-year flight-time limits of 1,000 

hours. The FAA has administered these 

cumulative flight-time limits for over 

four decades, and based on its 

operational experience, the FAA has 

found that cumulative flight-time that 

falls within these limits is safe. Because 

the FAA is unaware of any data showing 

that flight times exceeding these limits 

are safe, the FAA has decided to retain 

cumulative flightcrew member flighttime limitations within the existing 

limits. 

As the commenters correctly point 

out, because FDPs include flight time, 

the FAA could have addressed the 

concern discussed in the preceding 

paragraph by calibrating the cumulative 

FDP limits. However, as discussed in 

the Flight Time Limits section of this 

preamble, the FAA chose to retain the 

concept of flight-time limits in order to 

set higher FDP limits and provide air 

carriers with more flexibility. If the FAA 

eliminated the cumulative flight-time 

limits from this rule, it would need to 

drastically reduce the cumulative FDP 

limits from the limits that were 

proposed. This is because without 

cumulative flight-time limits, the 

proposed cumulative FDP limits would 

allow flightcrew members to accumulate 

flight time that significantly exceeds the 

cumulative flight time permitted by 

existing regulations. To keep that from 

happening and provide air carriers with 

more scheduling flexibility, this rule 

largely retains the existing flight-time 

cumulative limits and sets higher 

cumulative FDP limits than would 

otherwise have been permissible. 

ATA, RAA, and a number of air 

carriers stated that imposing cumulative 

limits for three different regulatory 

concepts (FDP, duty, and flight time) 

was unjustified and overly burdensome. 

ATA stated that cumulative limits 

would result in additional flight 

cancellations that inconvenience the 

general public. RAA stated that the 

multiple limits overlapped to a 

significant degree, and the numerous 

cumulative regulatory restrictions 

would be very difficult to keep track of 

in practice. 

RAA stated that the standards of other 

authorities were not applicable to this 

rulemaking because, instead of simply 

being concerned with safety, ‘‘CAP–371 

and the EASA regulations envision a 

system of ‘fair and equitable’ crew 

scheduling that is justified in a 

European context by its intent of 

spreading more fatiguing assignments 

among the entire flightcrew member 

community.’’ While RAA accepted the 

proposition that some cumulative 

restrictions were necessary, it believed 

that this proposal included too many 

cumulative restrictions. 


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380 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

76 49 U.S.C. 42112(b)(1). This statutory provision 

incorporates National Labor Board Decision number 

83, which, among other things, limits monthly 

flight time to 85 hours. 

As discussed above, the FAA has 

decided to eliminate the cumulative 

duty-period limits, which should greatly 

simplify compliance with this section. 

Thus, the only remaining cumulative 

limits are FDP and flight-time limits. 

The FAA has decided to retain both of 

these cumulative limits because (1) the 

FDP limits restrict the amount of 

cumulative fatigue that a flightcrew 

member accumulates before and during 

flights, and (2) the flight-time limits 

allow the FAA to provide air carriers 

with more scheduling flexibility by 

setting higher cumulative FDP limits in 

this rule. This additional scheduling 

flexibility justifies the added complexity 

of the cumulative flight-time limits, 

which can easily be tracked by 

scheduling programs currently in use 

throughout the industry. The FAA also 

notes that complying with the 

cumulative flight-time limits in addition 

to the FDP limits should not present a 

significant burden to many air carriers 

because they are already required to 

keep track of pilot flight time in order 

to comply with a statutory provision 

that limits flight time on interstate 

domestic flights to 85 hours per 

month.76

The FAA understands that standards 

such as CAP–371 and EASA were 

drafted to achieve goals that may be 

somewhat different from the safety goals 

of this rule. In light of this fact and the 

requirements of the Administrative 

Procedure Act, while the FAA has 

examined the provisions of the various 

standards of other authorities, the FAA 

ultimately made its own independent 

decisions based on the needs and 

concerns of the stakeholders and the 

FAA about how to structure this rule. 

That is why some of this rule’s 

provisions are similar to other standards 

and other provisions are very different 

from the standards adopted by other 

aviation authorities. 

RAA, NACA, AMA, Boeing, and a 

number of air carriers opposed the 365- 

day cumulative flight-time limit, 

arguing that there was no safety-based 

justification for this limit. These 

commenters stated that the 28-day 

flight-time limits, as well as the other 

proposed cumulative limits, restricted 

cumulative fatigue to acceptable levels 

on a continuing basis without the need 

for an annual flight-time limit. Four 

individual commenters and SWAPA 

suggested that the 365-day flight-time 

limit be increased to 1,200 hours. 

SWAPA noted that the proposed 

regulations allow a flightcrew member 

to have 100 flight-time hours in a 

month, and ‘‘[i]f flying 100 hours per 

month for ten months in a row does not 

create a cumulative fatigue problem, we 

find it hard to imagine that there would 

be a cumulative fatigue issue in month 

11 or 12.’’ One individual commenter 

asserted that the individual monthly 

flight-time limits should add up to the 

annual limit. 

The 1,000-hour 365-day flight-time 

limit comes from existing regulations, 

which limit yearly flight-time to 1,000 

hours and monthly flight time to 100 

hours. To meet the 1,000-hour limit, air 

carriers must restrict the average 

monthly flight times of flightcrew 

members to approximately 83 hours. 

However, because the 1,000-hour limit 

is a yearly limit, air carriers have the 

flexibility to exceed the 83-hour 

monthly average and fly up to 100 hours 

during peak months so long as they fly 

a reduced number of hours during offpeak months. 

The FAA has significant operational 

experience with the 1,000-hour annual 

limit, and based on this experience, the 

FAA has determined that a flight-time 

average of approximately 83 hours per 

month is safe. For the sake of regulatory 

simplicity, the FAA has also considered 

eliminating the 1,000-hour annual 

flight-time limit and reducing the 

monthly flight-time limit to 83 hours. 

However, the FAA ultimately 

determined that such a reduction would 

unnecessarily limit air carriers by 

prohibiting them from scheduling extra 

flight-time hours during peak months. 

Thus, in order to preserve existing air 

carrier scheduling flexibility, this rule 

retains the 1,000-hour flight-time limit 

imposed by the existing regulations. 

A number of commenters suggested 

using calendar periods for cumulative 

limits instead of rolling periods of hours 

and calendar days. Boeing, Allegiant, 

and a number of individual commenters 

suggested that the annual flight-time 

limit be based on calendar months 

instead of 365 days. Boeing and 

Allegiant stated that the existing 

regulations have a 12-calendar-month 

limit, and switching to a 365-day limit 

would: (1) Increase costs because air 

carriers would have to change their 

existing scheduling systems; and (2) 

make it more difficult for individual 

flightcrew members to keep track of the 

annual limit. 

Boeing also argued that the 

cumulative FDP limits should, for the 

sake of regulatory simplicity, use 28 

calendar days as a time-period 

measurement instead of 672 hours. 

SkyWest also suggested using calendar 

periods instead of hourly limits for the 

sake of simplicity. Conversely, NJASAP 

supported the use of hourly time 

periods instead of calendar days or 

months as a cumulative-limit 

measurement. IPA supported the use of 

hourly time periods for daily and 

weekly limits, but stated that the 

monthly and annual limits should be 

based on calendar days. AMA also 

supported the proposal’s use of rolling 

calendar day and hourly cumulative 

time periods, asserting that the use of 

calendar periods would be subject to 

abuse. 

The FAA has largely used consecutive 

hours to express time periods in this 

section in order to create a consistent 

and uniform enforcement standard. One 

problem with calendar periods is that 

different air carriers use calendar 

periods in different ways. Thus, for 

example, one air carrier’s calendar day 

may start at midnight, while another air 

carrier’s calendar day may start at 9am. 

Another problem with calendar 

periods is that a single calendar period 

can cover different lengths of time. 

Thus, a calendar month could cover a 

time period ranging from 28 to 31 days. 

A calendar year would also present 

problems if it is measured in months 

instead of days because a 28–31-day 

monthly period would create lookback 

problems. To avoid these types of issues 

with calendar periods, this section 

expresses the cumulative time periods 

largely as a function of consecutive 

hours, which are an unchanging 

uniform standard that applies the same 

way to all air carriers. The FAA does not 

believe that this will create an undue 

burden for air carriers and flightcrew 

members because modern scheduling 

programs and spreadsheets can easily 

keep track of time periods consisting of 

consecutive hours. 

In light of its preference for 

consecutive hours, the FAA has 

amended subsection 117.23(b)(1) so that 

it expresses the corresponding 

cumulative limit as a function of 

consecutive hours instead of calendar 

days. However, the FAA has decided to 

retain the flight-time limit in subsection 

117.23(b)(2) as an expression of 

calendar days because expressing 365 

days as a function of hours would result 

in a very high number of hours that 

would be difficult to apply in practice. 

Boeing, Kalitta Air, and Omni Air 

objected to the FDP limits for the 672- 

hour (28-day) time period, arguing that 

cumulative fatigue is already taken into 

account by the 168-hour cumulative 

limits. Boeing stated that there is no 

scientific evidence ‘‘proving that an 

event 672 hours ago has a predictable 

effect on alertness now.’’ Conversely, 

NACA and a number of labor groups 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 381 

77Akerstedt, T., & Gillberg, M. (1981). The 

circadian variation of experimentally displaced 

sleep. Sleep, 4 (2), 159–1659. Akerstedt, T., & 

Gillberg, M. (1990). Subjective and objective 

sleepiness in the active individual. International 

journal of neuroscience, 52 (1–2), 29–37. Gander, 

P.H., De Nguyen, B.E., Rosekind, M.R., & Connell, 

L.J. (1993). Age, circadian rhythms, and sleep loss 

in flight crews. Aviation, Space, and Environmental 

Medicine, 64 (3), 189–195. 

78Rosekind, M.R., Gander, P.H., Gregory, K.B., 

Smith, R.M., Miller, D.L., Oyung, R., Webbon, L.L., 

& Johnson, J.M. (1996). Managing fatigue in 

operational settings 1: Physiological considerations 

and countermeasures. Behavioral Medicine, 21, 

157–165. 

79Caldwell, J.A., Mallis, M.M., Caldwell, J.L., 

Paul, M.A., Miller, J.C., & Neri, D.F. (2009). Fatigue 

countermeasures in aviation. Aviation, Space, and 

Environmental Medicine, 69 (1), 29–9. 

80 Gander, P.H., Myhre, G., Graeber, R.C., 

Anderson, H.T., and Lauber, J.K. (1985). Crew 

factors in flight operations: I. Effects of 9-hour timezone changes on fatigue and the circadian rhythms 

of sleep/wake and core temperature (NASA/TMm 

1985–88197). Moffett Field, CA. NASA Ames 

Research Center. 

81Lamond, N., Petrilli, R.M., Dawson, D., and 

Roach, G.D. (2006). Do short international layovers 

allow sufficient opportunity for pilots to recover? 

Chronobiology International, 23(6), 1285–1294. 

Lamond, N., Petrilli, R.M., Dawson, D., and Roach, 

G.D. (2005). The impact of layover length on the 

fatigue and recovery of long-haul flight crew. 

Adelaide/Whyalla, Australia: University of South 

Australia, centre for Sleep Research. 

82See also, Gander, P.H., Graeber, R.C., Connell, 

L.J., and Gregory, K.B. (1991). Crew factors in flight 

operations: VIII. Factors influencing sleep timing 

and subjective sleep quality in commercial longhaul flight crews (NASA/TMm 1991–103852). 

Moffett Field, CA: NASA Ames Research Center. 

Rosekind, M.R., Gander, P.H., Gregory, K.B., Smith, 

R.M., Miller, D.L., Oyung, R., Webbon, L.L. and 

Johnson, J.M. (1996). Managing fatigue in 

operational settings 2: An Integrated Approach. 

Behavioral medicine, 21, 166–170. 

supported the concept of cumulative 

limits for 28-day periods. 

The different cumulative FDP limits 

work on the same flexibility principle as 

the 672-hour and 365-day cumulative 

flight-time limits. The cumulative FDP 

limit for the 672-hour period is 190 

hours. To comply with this 190-hour 

limit, an air carrier has to average 

approximately 47.5 cumulative hours of 

FDP in each 168-hour period. However, 

the 60-hour cumulative FDP limit for 

each 168-hour period allows air carriers 

to exceed the 47.5-hour FDP average 

during peak weeks as long as they go 

below this average during off-peak 

weeks. Just like the different flight-time 

limits, this system provides air carriers 

with scheduling flexibility while 

keeping the average weekly cumulative 

FDP times within acceptable bounds. 

APA asked that the FAA add in a 

cumulative flight-time limit for the 168- 

hour period, arguing that, without this 

limitation, air carriers could schedule a 

significant amount of flight time in this 

period of time. 

The existing regulations for domestic 

and flag operations impose 30–32 hour 

cumulative flight-time limits for 7-day 

periods. However, the existing 

regulations for supplemental operations 

do not impose cumulative flight-time 

limits for 7-day periods. Based on its 

operational experience administering 

supplemental operations without a 7- 

day cumulative flight-time limit, the 

FAA has determined that there is no 

need to impose a 168-hour flight-time 

limit in addition to the other cumulative 

limits in this rule. 

NACA, NAA, and Northern Air Cargo 

asked the FAA to increase the 

cumulative FDP limits to match the 

limits suggested for cumulative duty 

periods, arguing that the proposed 

limits did not take into account the 

needs of supplemental operations. 

Conversely, AAC, AFA–CWA, ALPA, 

and a number of other union groups 

asserted that the proposed cumulative 

limits were appropriate. ALPA stated 

that the proposed limits should neither 

be expanded nor reduced and AAC 

stated that the FAA should not impose 

additional cumulative limits. 

The proposed cumulative-duty-period 

limits in this rule were higher than the 

proposed cumulative FDP limits 

because duty encompassed more nonflight activities than FDP. Since most of 

the additional non-flight activities 

covered by duty did not raise significant 

fatigue-related concerns, the FAA set 

the cumulative-duty-period limits at a 

higher level. As discussed above, 

because duty periods did not have a 

significant effect on aviation safety 

independent of FDPs, cumulative-dutyperiod limits have been eliminated from 

this rule. 

The FAA has also decided against 

increasing the proposed cumulative FDP 

limits. Because this rule retains 

cumulative flight-time limits, the 

cumulative FDP limits in this section 

are set at sufficiently high levels that 

should allow air carriers full utilization 

of the cumulative flight-time limits in 

this section. Thus, for example, the 

cumulative FDP limit for the 672-hour 

period is 190 hours, which is almost 

double the cumulative flight-time limit 

of 100 hours for this time period. 

Because the proposed cumulative FDP 

limits were already set at relatively high 

levels, the FAA has decided against 

increasing these limits further without 

additional FRMS-provided data. 

NJASAP asked whether the time spent 

on reserve will count towards the 

cumulative FDP limits of this section. 

Only the time that is spent on airport/ 

standby reserve is considered to be FDP. 

As such, only the time that is spent on 

this type of reserve counts toward the 

cumulative FDP limits of this section. 

O. Rest 

Rest is a significant element of this 

rule because it is the most critical 

component of fatigue mitigation. In this 

rulemaking, the FAA has addressed the 

following concerns with the present 

regulatory scheme governing rest: (1) 

Part 121, subparts Q, R, and S provide 

rest limits within a 24-hour period, 

however certificate holders conducting 

operations with airplanes having a 

passenger seating configuration of 30 

seats or fewer and a payload capacity of 

7,500 pounds or less, may comply with 

the less stringent requirements of 14 

CFR 135.261 and 135.273; (2) the lack 

of any mechanism to assure that rest is 

provided prior to flight; and (3) no clear 

requirement that the 9 hour rest period 

must provide for an 8 hour sleep 

opportunity. The FAA also sought to 

specifically articulate what it means for 

a flightcrew member to be free from 

duty, as this and other related issues 

under the current scheme have resulted 

in more than 55 legal interpretations 

issued by the FAA regarding rest. 

Sleep science has settled on the 

following points: The most effective 

fatigue mitigation is sleep; an average 

individual needs to have an 8-hour 

sleep opportunity to be restored; 8 hours 

of sleep requires more than 8 hours of 

sleep opportunity; and daytime sleep is 

less restorative than nighttime sleep.77

For most people, 8 hours of sleep in 

each 24 hours sustains performance 

indefinitely.78 There is a continuous 

decrease in performance as sleep is lost. 

Examples of this reduction in 

performance include complacency, a 

loss of concentration, cognitive and 

communicative skills, and a decreased 

ability to perform calculations. All of 

these skills are critical for aviation 

safety.79

In the Flight Time ARC meetings, 

scientific presenters stated that during 

long pairings with significant time zone 

shifts, a minimum of 24 hours off would 

be necessary for flightcrew members to 

find an adequate sleep opportunity, and 

sufficient time free from duty.80 A 

minimum of two nights of sleep might 

be necessary to acclimate to a different 

time zone.81

The scientific presenters also noted 

that an individual’s circadian clock is 

sensitive to rapid time zone changes. 

They added that long trips present 

significant issues requiring mitigation 

strategies.82 Twenty-four or 48 hours of 

rest may not be adequately restorative 

during a trip pairing where a flightcrew 

member is working 20 days separated by 

24-hour layovers. In some cases, shorter 

rest periods, such as 18 hours or less, 


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382 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

may be more restorative because of 

circadian issues. 

In the NPRM, the FAA proposed 

requirements for FDP/reserve period 

rest, acclimation rest upon returning to 

home base, and reduced rest under 

limited conditions. For pre-FDP/reserve 

assignments, the FAA proposed that 

prior to accepting a reserve duty period 

or FDP, the flightcrew member must be 

given a rest period of at least 9 

consecutive hours measured from the 

time the flightcrew member reaches the 

hotel or other suitable accommodation. 

In addition, the FAA proposed that a 

flightcrew member must be given at 

least 30 consecutive hours free from all 

duty in any 168 consecutive hour period 

prior to beginning a reserve period or 

FDP. This provision included two 

exceptions. The first is that during an 

FDP or series of FDPs, if a flightcrew 

member crosses more than 4 time zones 

on FDPs that exceed 168 consecutive 

hours, that flightcrew member must be 

given a minimum of three physiological 

nights’ rest upon return to home base. 

The second is if a flightcrew member is 

operating in a new theater, he or she 

must receive 36 consecutive hours of 

rest in any 168 consecutive hour period. 

The proposal also would have 

permitted a one-time reduction in the 

pre-FDP/reserve rest period from 9 to 8 

consecutive hours in any 168 

consecutive hour period. Additionally 

and in the event of unforeseen 

circumstances, the pilot in command 

and the certificate holder could reduce 

the 9 hour rest period to 8 consecutive 

hours. Lastly, the FAA proposed that 

during a rest period, the certificate 

holder could not assign and no 

flightcrew member could accept any 

assignment for reserve or duty. 

Commenters raised two issues 

concerning the proposed pre-FDP/ 

reserve rest requirement. The first issue 

was the FAA’s selection of the 9 hour 

rest period. The second issue was the 

beginning measurement of the rest 

period. As these two issues interrelate, 

the comments for both are summarized 

below. 

In the NPRM, the FAA noted that the 

ARC members supported a domestic rest 

requirement of 10 hours that was 

comprised of an 8 hour sleep 

opportunity, with 30 minutes on each 

end for transportation and 30 minutes 

on each end for physiological needs 

such as eating, exercising and 

showering. The ARC members also 

discussed whether the rest requirement 

should be increased to 12 hours for 

international operations. The ARC 

members cited the following reasons for 

the two added hours for international 

operations: To provide a longer layover 

rest period for non-acclimated 

flightcrews; potential to address 

increased stress associated with 

communicating with air traffic control 

in countries where English is not the 

native language; and time to transit 

customs/immigration or travel a long 

distance to hotel accommodations in 

foreign destinations. 

The FAA decided not to propose two 

different rest periods and instead put 

forth one standard rest period for all 

operations. The FAA was not persuaded 

that added rest was necessary to deal 

with air traffic control communications 

in a foreign airspace. Furthermore, 

acclimation for determining the length 

of an FDP was addressed by other 

provisions in the proposal. Lastly, the 

time to clear customs/immigration was 

addressed by refining the point where 

rest begins. 

The FAA received over 2,500 

comments from individuals who 

contend that the proposed 9 hour rest 

period was inadequate and did not 

allow sufficient time to eat, bathe, 

exercise or unwind, and still have an 

opportunity for 8 hours rest. The NTSB 

strongly encouraged the FAA to increase 

the duration of the required rest period 

to accommodate an opportunity for 8 

hours of sleep. CAPA, APA, and 

SWAPA pointed to FAA Advisory 

Circular No. 120–FIT, which recognizes 

that 9 hours of rest typically does not 

yield 9 or 8 hours of sleep. Peninsula 

Airways, the Families of Continental 

Connection Flight 3407, APA, IPA, 

Southwest Airlines, SWAPA, AE and 

Delta Air Lines supported a 10 hour rest 

period for domestic operations. 

Approximately 150 individual 

commenters believe that the rest period 

for international operations should be 

12 hours. Other commenters suggested 

varying times of 13, 14, and 20 hours 

respectively for operations that travel 

across multiple time zones. Pinnacle 

Airlines suggested a rest period of 48 

hours. ALPA advocated a minimum of 

13 hours rest period for flightcrew 

members that fly to a new theater—once 

they become acclimated, they go back to 

10 hours rest. ATA commented that the 

terminology should be changed from 

‘‘domestic’’ and ‘‘international’’ to ‘‘in 

theater’’ and ‘‘in new theater’’ (and use 

the term ‘‘theater’’ as defined in the 

NPRM). ATA argues that the distinction 

of domestic/international in this context 

is not relevant and provides the 

following example. A pilot completing a 

north-south flight between the U.S. 

mainland and Canada or the Caribbean 

that crosses no time zones should not be 

treated differently than one that makes 

the same north-south trip within the 

continental U.S. APA, CAPA, SWAPA 

and Kalitta Air endorsed a 12 hour rest 

period for non-acclimated flights. 

Conversely, Hawaiian Airlines 

supported the single hour rest 

requirement of 9 hours, and commented 

that this provision is not competitively 

disadvantageous for its operations. CCIA 

supported a longer rest period than that 

provided under the present regulations. 

American Airlines supported the 

proposed 9 hours and Alaska Airlines 

simply argued that the proposed rest 

provisions should be withdrawn, 

reevaluated, and republished for 

comment. 

For the NPRM, the FAA chose to 

begin the rest period at the time that the 

flightcrew member reached the hotel or 

suitable accommodation. The basis for 

this tentative decision largely rested on 

the premise that transportation is not 

rest and therefore, cannot be factored 

into the rest period. In addition, the 

time spent in transportation may vary 

widely. 

Commenters were divided with 

respect to the proposal’s measurement 

of when the rest period begins. Most 

commenters representing industry did 

not support measuring the rest period 

from the time the flightcrew member 

reached the hotel or suitable 

accommodation. These commenters 

described this aspect as wholly 

unworkable, and open to too many 

variables that would be beyond the 

certificate holder’s control, e.g. 

vehicular breakdowns, accidents, 

unexpectedly heavy traffic and lost or 

overbooked facility reservations. In 

addition, they state that the certificate 

holder would be responsible to account 

for the flightcrew member’s 

whereabouts throughout the rest period. 

They argue that the certificate holder’s 

responsibility is to control the 

scheduling of compliant rest periods, 

not to control an individual’s private 

life and activities when off duty. 

The labor organizations and the 

Families of Continental Connection 

Flight 3407 supported the proposed 

beginning measurement of the rest 

period. These entities were concerned 

with being able to ‘‘get 9 hours behind 

the door,’’ which would provide a better 

opportunity for a meaningful 8 hour 

sleep opportunity. APA also 

recommended, in addition to the 

proposal, that the FAA add language 

that to be compliant with this rest 

requirement, the hotel room must be 

available for immediate occupancy 

upon arrival. A number of pilot groups 

commented that rest time can be spent 

waiting for check-in or delay in getting 

room keys. Conversely, a number of 

certificate holders stated that check-in 

sometimes occurs in the vehicle on the 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 383 

83The FAA notes that not all pilot groups are 

organized and therefore, do not have a collective 

bargaining process. 

84 If a flightcrew member begins this rest at 1 a.m. 

on day 1 and concludes this rest at 7 a.m. on day 

3, this provides a minimum of 56 hours of rest. 85Winget CM, Deroshia CW, Markley CL, Holley 

DC. (1984). A review of human physiological and 

Continued 

way to the hotel, or that hotels offer 

separate check-in counters for 

flightcrew members. 

As discussed above, the FAA was not 

persuaded at the NPRM stage to pursue 

a separate rest period for international 

operations. The agency concluded that 

an additional two hours of rest was not 

warranted to address potential fatigue 

from communicating with air traffic 

controllers in foreign airspace, nor did 

it support added rest due to time to 

clear customs and immigration. A 

number of airports have custom and 

immigration queues devoted to 

processing flightcrew members quickly. 

The adopted regulations providing 

FDP limits for augmented and 

unaugmented operations address 

acclimation. For an unacclimated 

flightcrew member, the maximum flight 

duty period in Table B is reduced by 30 

minutes and the flightcrew member 

enters the applicable FDP table based on 

the local time at the theater in which the 

flightcrew member was last acclimated. 

Under these provisions, the determined 

FDP limits take into account the 

flightcrew member’s WOCL and general 

circadian rhythm. As long as the 

flightcrew member is receiving an 8 

hour sleep opportunity, the nature of 

whether the FDP was international is 

not relevant. The FAA has decided to 

retain a single standard rest period 

provision that applies to all FDPs and 

reserve periods. 

Based on the comments received from 

the certificate holders, the FAA agrees 

that using the time when a flightcrew 

member reaches the hotel or other 

suitable accommodation would present 

more issues for implementation than it 

actually solved. The FAA’s main 

objective with this provision was to 

ensure that flightcrew members have an 

8 hour sleep opportunity. Building from 

that and mindful of the comments 

received, the FAA has decided to adopt 

a 10 consecutive hour rest requirement 

that immediately precedes the 

beginning of a reserve or FDP measured 

from the time the flightcrew member is 

released from duty. At this point, if the 

flightcrew member cannot have 8 

uninterrupted hours of rest opportunity, 

the flightcrew member cannot report for 

the assigned FDP until he/she receives 

that rest. If the reason for the shortened 

rest opportunity is travel delays, 

reservation confusion, or the flightcrew 

member’s actions, the certificate holder 

is free to address the root cause. 

However, it must provide the required 

8-hour rest opportunity. 

The FAA finds that the modifications 

adopted in this rule address concerns 

raised by the labor organizations, the 

NTSB and the Families of Continental 

Connection Flight 3407 concerning an 

actual 8 hour opportunity devoted to 

sleep. Furthermore, it provides 

reasonable time for travel to the hotel, 

check-in, and meals. The FAA 

acknowledges there will be unforeseen 

circumstances that are beyond the 

control of either the certificate holder or 

the flightcrew member and these 

situations are difficult to capture in a 

regulatory standard. In situations such 

as this, where the flightcrew member 

ultimately is not provided with the 

necessary rest period and/or sleep 

opportunity, the flightcrew member 

must notify the certificate holder that 

he/she will be unable to obtain the 

required rest. It is advisable that the 

flightcrew member alert the certificate 

holder as soon as possible in order for 

the certificate holder to make alternative 

arrangements that may include 

adjusting the next FDP or flight 

departure time, or calling in a reserve 

crew. 

NACA, Kalitta Air, NAA and Atlas 

disagree with the proposed rest 

requirement for a flightcrew member 

that crosses more than four different 

time zones and is away from home base 

for more than 168 consecutive hours. 

These commenters specifically state that 

three physiological nights’ rest is 

excessive, not based on science, and 

that only a 30 hour rest period is 

necessary because fatigue has been 

mitigated throughout the flightcrew 

member’s trip. They also commented 

that there is no justification for a 

different standard for rest at home and 

that rest at home generally is more 

fatigue mitigating than rest at operating 

locations. UPS also objected to the use 

of three physiological nights’ rest upon 

return to home base. UPS contends that 

rest at home should be treated the same 

as rest in layover cities and that off-duty 

time between pairings ‘‘is traditionally, 

and correctly, addressed via the 

collective bargaining process.’’ 83

NACA and Kalitta Air also 

recommended a reduced rest period of 

30 hours, instead of the proposed 36 

consecutive hours of rest, in any 168 

consecutive hours for flightcrew 

members operating in a new theater. 

The FAA adopts as proposed the 

requirement that a flightcrew member 

must be given at least 30 consecutive 

hours free from duty in any 168 

consecutive hour period. The NPRM 

included two exceptions to this 

requirement. The first exception was a 

longer rest period upon return to home 

base after a flightcrew member has been 

away for more than 168 consecutive 

hours and has crossed at least four time 

zones. The second exception was for 

flightcrew members operating in a new 

theater to receive 36 hours of rest. 

In the NPRM, the FAA stated that it 

was ‘‘proposing to require a greater rest 

opportunity when a flightcrew member 

has been away from his or her home 

base for more than 168 hours. In this 

instance, the FAA proposes to require a 

rest period that includes 3 physiological 

nights, rather than 36 hours free from 

duty or permitting the flightcrew 

member to fly during that 

approximately 72 hour period.’’ 75 Fed. 

Reg. 55862. The corresponding 

regulatory text proposed three 

physiological nights’ rest. By using three 

physiological nights’ rest, the FAA 

intended this provision to provide for a 

minimum 56-hour rest period, as 

indicated in the NPRM preamble 

discussion. As proposed, the regulatory 

text would permit a flightcrew member, 

upon return to home base after 168 

hours away from home and crossing 

numerous time zones, to be assigned to 

FDPs that would occur during the day 

only, but require the flightcrew member 

to sleep at home for three nights. The 

intention was for that flightcrew 

member to receive a minimum of 56 

consecutive hours of rest.84

The FAA does not agree with the 

commenters that a 30 consecutive hour 

rest period is adequate for flightcrew 

members that have flown a schedule 

that has the flightcrew member crossing 

several time zones and is away from 

home for more than 168 hours. This 

longer rest period serves an important 

purpose. The longer rest period 

provides a recovery period that 

facilitates the restoration of the 

flightcrew member’s circadian rhythms. 

Sleep loss or sleep disturbance can 

significantly deteriorate performance. 

Moreover, performance impairment can 

occur when the sleep-wake cycle has 

only been phase-advanced by 2–4 hours 

and maintaining a normal sleep period. 

These results suggest that performance 

deterioration can directly result from 

circadian rhythm disturbance and not 

only solely from sleep loss that would 

occur with time zone changes. The 

onset of sleep and the duration of that 

sleep can ‘‘* * * depend upon the 

circadian body temperature phase and 

provides a physiological basis for the 

performance deterioration or circadian 

desynchronization.’’ 85 Typically, flights 


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384 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

performance changes associated with 

desynchronosis of biological rhythms. Aviat. Space 

Envion. Med. 1984; 55:1085–96, p. 1090. 

86 Id. at p. 1085. 

87Wegmann HM, Klein KE. Jet lag and aircrew 

scheduling. In: Folkard S, Monk TH, eds. Hours of 

work. Chichester; John Wiley & Sons Ltd., 1985; 

263–76. 

88Wegmann HM, Gundel A, Naumann M, Samel 

A, Schwartz E, Vejvoda M. Sleep, sleepiness, and 

circadian rhythmicity in aircrews operating on 

transatlantic routes. Aviat. Space Environ. Med. 

1986; 57(12, Suppl.); B53–64. 89Winget et al. (1984) at page 1087. 

90This change is consistent with the modification 

to the term theater in the definitions section, 

discussed earlier. 

91See 14 CFR 121.483, 121.485, 121.523 and 

121.525. 

across multiple time zones involve a 

differential restructuring in an internal 

circadian desynchronization and 

associated symptoms.86

Flightcrews routinely deal with 

multiple time zone adjustments and 

work schedule changes. Flight 

operations involve night and ‘‘shift 

work’’ in general and exposures to 

different social and environmental cues 

can vary after both the outbound and 

inbound segments of flights, which can 

make the prediction of an individual’s 

resynchronization very difficult. 

‘‘Advances’’ in rhythms occur with 

eastward travel and ‘‘delays’’ with 

westward travel. Flights of multiple 

time zones involve circadian 

adjustments that vary in length 

depending on the direction of travel. 

Physiological, performance, and 

subjective measures are also found to 

adjust at different rates to changes in 

time zones.87

Some studies also indicate that a 

complete adjustment following six time 

zone transitions was found to take up to 

13 days after eastbound flights, and 10 

days in westbound flights.88 Other 

research indicates that there is 

considerable variation in the rates of 

resynchronization of individual 

rhythms. After a time shift, such as that 

experienced by pilots flying several 

days in a new theater, with all rhythms 

phase-adjusted, upon return to their 

domicile, a resynchronization process 

begins anew and is not complete until 

each rhythm has rephrased back to the 

home time zone. ‘‘The different rates of 

rhythm readjustment lead to transient 

internal dissociation, in which the 

normal phase relationships between 

rhythms are disrupted.’’ 89

Consequently, the FAA finds it 

critical to address the 

desynchronization/resynchronization of 

circadian rhythms that occurs when 

transiting multiple time zones. This 

recovery rest not only acclimates 

flightcrew members but also resets the 

circadian rhythms before the next 

assigned flight duty period. The FAA 

corrects the regulatory text to provide 

for a 56 consecutive hour rest instead of 

the three physiological nights’ rest, as 

previously discussed. Depending upon 

when the rest period begins, this 

requirement provides for 2 to 3 

physiological nights’ rest. 

With respect to the NACA and 

Kalitta’s concern with using the higher 

value of 36 hours rest instead of 30 

hours to acclimate, the FAA is not 

persuaded by the comment. The ARC 

members agreed that a flightcrew 

member should have at least 30 to 36 

continuous hours free of duty (rest) in 

any 168 consecutive hours and that 

once a flightcrew member is given this 

rest, he or she is considered acclimated 

to the local time. As rest is critical, the 

FAA choose to propose the more 

conservative 36 hour rest period, given 

that adequate rest provides the most 

fatigue mitigation. NACA and Kalitta do 

not offer information supporting 30 

hours instead of 36 hours. However, an 

approved FRMS may appropriately 

determine whether additional 

mitigations may permit the limited 

reduction in rest. 

For clarity, the regulatory text in this 

section has been restructured. Paragraph 

(b) of this section adopts the 30 

consecutive hour minimum rest 

requirement per week as proposed. 

Under paragraph (c), if a certificate 

holder gives a flightcrew member 

operating in a new theater 36 

consecutive hours of rest, then that 

flightcrew member is acclimated and 

must enter the FDP Table for his/her 

next assignment as acclimated to the 

local time in that new theater. A 

certificate holder does not need to 

provide the 36 hour rest once a 

flightcrew member is in a new theater 

unless the carrier wants to acclimate 

that flightcrew member. The flightcrew 

member may be given a 10 hour rest 

period in accordance with paragraph (e) 

of this section and then be assigned a 

subsequent FDP based on the home base 

time. However, if the flightcrew member 

has received 36 consecutive hours of 

rest, that flightcrew member is 

acclimated at that point to the new 

theater, and subsequent FDP 

assignments must be made according to 

the acclimated time. The text also 

specifies that if a flightcrew member has 

received 36 consecutive hours of rest 

under this paragraph, then that rest 

meets the requirements of paragraph (b) 

for the required rest in any 168 hour 

period and that resets the 168 hour 

period. Paragraph (d) now contains that 

provision that requires at least 56 

consecutive hours of rest if a flightcrew 

member traverses 60° longitude 90

during an FDP or a series of FDPs that 

require him or her to be away from 

home base more than 168 consecutive 

hours. This rest must encompass three 

physiological nights’ rest based on local 

time. 

ALPA, APA, CAPA, and SWAPA 

argued that where flightcrew members 

are not acclimated, a recovery period 

must be provided upon return to home 

base to ensure a flightcrew member’s 

body clock has recovered home base 

local time before the start of the next 

day. They propose that Table F, 

provided below, be used to determine 

the number of nights required to reacclimate. They also propose that Table 

F be used to provide ‘‘recovery rest’’ for 

time away from home when operating in 

a different theater for less than 168 

consecutive hours away from home. 

They cite the current regulations 91 as 

providing this rest for international 

operations over a period less than 168 

consecutive hours. 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 385 

The FAA cannot support the 

inclusion of Table F. First and as a 

practical matter, it is not clear that the 

Table could be accommodated given the 

rest period that was proposed without 

seriously constraining the certificate 

holder’s ability to schedule operations. 

As discussed previously, the FAA 

agrees and adopts a provision that 

specifically addresses the 

resynchronization of circadian rhythms. 

That rest however, must also be 

balanced with the certificate holder’s 

flexibility to schedule operations, 

particularly those carriers conducting 

supplemental operations. The FAA used 

168 hours as the minimum trigger point 

for when this rest must be provided for 

flightcrews returning home after 

completing FDPs that crossed multiple 

time zones. Under Table F, flightcrew 

members would have to be provided a 

minimum of two nights’ rest at home 

every week. This is an unrealistic 

constraint on the certificate holder’s 

ability to set and maintain a schedule. 

Under the concept furthered by this 

rulemaking, the cumulative limits on 

FDP during the same 168 hour period, 

coupled with cumulative rest 

requirement, should adequately mitigate 

the effect of cumulative fatigue. 

Not unexpectedly, the provisions 

proposed in the NPRM permitting a 

limited reduction in rest generally were 

opposed by the entities representing 

labor groups and either supported or 

expanded by the industry groups. ALPA 

accepted the proposal. SWAPA 

commented that reduced rest should 

never be permitted since science 

supporting reduced rest assumes that 

one is starting from a full sleep bank, 

which is not always the case. SWAPA 

further commented that reduced rest is 

likely to follow an extended FDP and 

that if the FAA retains a reduced rest 

provision it should never be permitted 

after an FDP has been extended past the 

maximum provided in Table B. APA 

only supports reduced rest if restorative 

rest is provided. In addition, APA 

argues that if the FAA allows a 

reduction in rest it should be limited to 

only once in a 168 consecutive hour 

period, due to unforeseen circumstances 

subject to pilot in command 

concurrence, and never if associated 

with an extended FDP. FedEx ALPA 

argued that only a one-hour reduction in 

rest be permitted and only in cases of 

unforeseen circumstances. AE supports 

a permitted one-hour reduction in rest. 

AA supports the one-hour reduction but 

never on consecutive nights. Delta 

commented that the once in 168 

consecutive hour period be reset after a 

30-hours rest is given. 

Conversely, UPS supported multiple 

reductions in rest without concurrence 

by the pilot in command. UPS contends 

that one reduction in a 168 consecutive 

hour window simply is not feasible. 

UPS also argues that requiring PIC 

concurrence will complicate the 

certificate’s holder ability to utilize the 

reduced rest provisions and its ability to 

return a disrupted system back to a 

more normal state. 

In view of the comments, the FAA has 

decided to remove the provisions that 

would permit a reduction in rest. As one 

of the stated goals of this rulemaking 

was to ensure that flightcrew members 

had an eight hour sleep opportunity, the 

FAA has reconsidered incorporating 

criteria in the regulations to permit a 

reduction in this sleep opportunity. 

While it is reasonable to anticipate that 

unforeseen circumstances may warrant 

a limited extension of an FDP, 

particularly for situations that arise after 

takeoff, the flightcrew members at this 

point have already had the benefit of an 

eight hour rest opportunity. The FDPs 

limits implemented by this rule were 

derived under the premise that 

flightcrew members were reporting for 

duty with a full rest. Permitting reduced 

rest undercuts that premise. This rule 

includes provisions for extensions of 

FDPs and flight time, as necessary to 

accommodate the situations that cannot 

be planned. Otherwise, certificate 

holders should not be scheduling FDPs 

to the point that a rest period needs to 

be reduced. 

P. Deadhead Transportation 

In the NPRM, the FAA proposed that 

all time spent in deadhead 

transportation is duty. The FAA further 

proposed that time spent in deadhead 

transportation would be considered part 

of an FDP if it occurred before a flight 

segment without an intervening 


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386 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

92This could also apply to the Civil Reserve Air 

Fleet (CRAF). However CRAF is only activated by 

presidential order in a time of war. The last time 

CRAF was activated was in 2003. Currently no 

operations are being conducted under the CRAF 

program. 

required rest period. Lastly, the 

proposal provided a rest requirement for 

deadheading flightcrew members: the 

time spent in deadhead transportation 

during a duty period may not exceed the 

flight duty period in Table B for the 

applicable start time plus 2 hours unless 

the flightcrew member is given a rest 

period equal to the length of the 

deadhead transportation but not less 

than the required rest in § 117.25 upon 

completion of such transportation. 

Several commenters contend that this 

proposed rest requirement should be 

deleted because it is punitive and not 

supported by science. They argue that 

this provision implies that the 

certificate holder should prevent a 

flightcrew member from deadheading 

home at the end of an FDP, even if the 

flightcrew member requests to do so. 

The FAA has made changes to the 

section addressing deadhead 

transportation. Paragraphs (a) and (b) of 

proposed § 117.31 have been moved. 

Paragraph (a) provided that all time 

spent in deadhead transportation is duty 

and that statement is relocated to the 

definition for deadhead transportation. 

Paragraph (b), which provided that 

deadhead transportation is part of an 

FDP if it occurred before a flight 

segment without an intervening 

required rest period, is deleted as that 

information is already contained in the 

definition of the term ‘‘flight duty 

period.’’ 

The FAA agrees with the commenters 

that the proposed text for § 117.29(c), 

Deadhead transportation, does not 

correctly articulate the purpose of rest 

relative to deadhead transportation. The 

rest is appropriate if the deadhead 

transportation occurs prior to the FDP. 

The situation that FAA sought to 

address in the NPRM was a flightcrew 

member deadheading on a long flight 

and then going onto a FDP without the 

appropriate rest. The language as 

proposed would require a rest period for 

a flightcrew member who is 

deadheading home after completion of 

an FDP. The FAA has corrected the 

regulatory text to provide that before 

beginning a flight duty period, if a 

flightcrew member has engaged in 

deadhead transportation that exceeds 

the applicable flight duty period in 

Table B, the flightcrew member must be 

given a rest period equal to the length 

of the deadhead transportation but not 

less than 10 consecutive hours. 

Q. Emergency and Government 

Sponsored Operations 

This rulemaking also addresses 

various supplemental operations that 

require flying into or out of hostile 

areas, and politically sensitive, remote 

areas that do not have rest facilities. 

These operations range from moving 

armed troops for the U.S. military, 

conducting humanitarian relief, 

repatriation, Air Mobility Command 

(AMC), and State Department 

missions.92 The discussions during the 

ARC recognized that these operations 

are unique and need to be specifically 

addressed in this rulemaking. Flights 

operated by a certificate holder under 

contract with a U.S. Government agency 

must comply with the flight and duty 

regulations in parts 121 and 135, as 

appropriate, unless the Administrator 

has granted a deviation under 14 CFR 

119.55 or 14 CFR 112.57. 

The FAA proposed that certificate 

holders may extend the applicable 

maximum FDPs to the extent necessary 

to allow flightcrew members to fly to a 

destination where they can safely be 

relieved from duty by another flightcrew 

or can receive the required rest before 

beginning the next FDP. Upon reaching 

the destination, the flightcrew members 

will receive the required rest, which 

would be equal to the length of the 

actual FDP or 24 hours, whichever is 

less. Furthermore, the proposal would 

not permit extensions of the cumulative 

FDP or cumulative flight time limits. In 

the event that an FDP was extended 

pursuant to this section, the NPRM 

provided reporting requirements. 

A number of commenters disagreed 

with the FAA’s use of the title 

‘‘Operations in unsafe areas’’ as the title 

of this section. Commenters, including 

UPS, Atlas Air, NAA, NACA, and NAC 

recommended various terms instead 

such as ‘‘Unique areas,’’ ‘‘Enhanced 

Security Consideration Area: 

Prescriptive Exemption,’’ and 

‘‘Designated Areas.’’ 

In addition, Atlas questioned the 

FAA’s statement that under this section, 

the flightcrew members’ FDP can be 

extended to permit them to continue the 

flight operation and land at the nearest 

suitable airport. See FAA Response to 

Clarifying Questions at page 24. Atlas 

commented that this airport may not be 

operationally feasible or economically 

viable. 

RAA commented that operations may 

need to use this section to rapidly 

remove or recover aircraft and crews 

from an airport about to be impacted by 

a heavy storm, hurricane, or blizzard. 

In the NPRM, the preamble discussion 

for this proposed section was titled 

‘‘Exception for Emergency and 

Government Sponsored Operations.’’ 

The FAA regrets that the title was not 

carried over to regulatory text. 

Introducing the term ‘‘unsafe areas’’ 

could be subject to differing 

interpretations within the industry. 

Section 117.29 is now titled 

‘‘Emergency and government sponsored 

operations,’’ which is an accurate 

depiction of the operations addressed in 

this section and is consistent with the 

discussion of the proposal. 

The purpose of this section is to 

address true emergency situations and 

operations that are being conducted 

under contract with the U.S. 

Government that pose exceptional 

circumstances that would otherwise 

prevent a flightcrew member from being 

relieved from duty or safely provided 

with rest at the end of the FDP. This 

section is not meant to address selfinduced emergencies that arise from 

inadequate planning. Certificate holders 

must be responsible for having 

appropriate onboard rest facilities or the 

proper number of flightcrew members 

available for the length of the duty day, 

if necessary. 

The FAA reviewed the regulatory text 

and determined that this clarification 

warrants certain modifications. First, 

the applicability provision of this 

section now specifically articulates the 

two categories of operations that are 

affected. This section applies to 

operations conducted pursuant to 

contracts with the U.S. Government 

department and agencies. A number of 

these types of flights are conducted 

under contract with the Departments of 

Defense, State, Homeland Security, 

Justice, FEMA, and Customs and 

Immigration. This provision is not 

limited to operations conducted 

pursuant to § 119.55, which permits 

certificate holders to deviate from the 

requirements of parts 121 and 135, as 

authorized by the Administrator in 

order to conduct operations pursuant to 

a military contract. Rather, this 

provision could apply to multiple 

government agencies depending on the 

mission. The FAA also recognizes that 

there are operations in which the 

Department of Defense may need relief 

from the flight and duty regulations 

even though the circumstances do not 

meet the certification requirements of 

§ 119.55. 

This section also applies to operations 

conducted pursuant to a deviation 

issued by the Administrator under 

§ 119.57 that authorizes an air carrier to 

deviate from the requirements of parts 

121 and 135 to perform emergency 

operations. For example, under this 

section the FAA issued operations 

specifications for emergency operations 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 387 

93FAA Response to Clarifying Questions. 

94See Drake v. Laboratory Corp. of America 

Holdings, 458 F.3d 48, 56 (2d Cir. 2006) (stating that 

‘‘Congress granted the FAA broad authority over 

aviation safety’’); Kraley v. National Transp. Safety 

Bd., 165 F.3d 27 (6th Cir. 1998) (unpublished 

opinion) (stating that ‘‘Congress vested the 

Administrator of the FAA with broad power to 

prescribe regulations, standards, and procedures 

relating to aviation safety’’). 

95See, e.g., Goode, supra note 17, at 311 (stating 

that 16-hour unaugmented FDPs, which are 

permissible under the existing regulations, result in 

an accident rate that is over five times higher than 

the accident rate for shorter FDPs). 

during Hurricane Katrina to allow 

humanitarian flights into and out of 

New Orleans. This authority is issued 

on a case-by-case basis during an 

emergency situation as determined by 

the Administrator. 

Upon review, the FAA concludes that 

these two categories are the only types 

of operations that warrant separate 

consideration because of the unique 

operating circumstances that otherwise 

limit a certificate holder’s flexibility to 

deal with unusual circumstances. 

Therefore, unless a certificate holder’s 

operations fall under either category, the 

ability to extend an FDP under this 

section does not apply. 

In response to RAA’s comment as to 

this section regarding moving aircraft 

and crews from an airport about to be 

impacted by a blizzard or hurricane, 

these certificate holders have recourse 

to extend an FDP as necessary under 

§ 117.19. The FAA’s modifications to 

this section are to allow for true 

emergency situations and to address the 

uniqueness of certain government 

contract operations. 

Second, this section adopts the 

provision permitting the FDP and the 

flight time for a particular operation to 

be extended if deemed necessary by the 

pilot-in-command. This provision was 

slightly modified to allow for an 

extension to the flightcrew members’ 

flight time limitations if necessary. In 

addition, the pilot-in command is given 

the authority to determine the closest 

destination to safely land the aircraft 

and allow for the flightcrew to be 

relieved and afforded the proper rest. 

The FAA does not expect the flightcrew 

to extend the FDP simply to complete 

the next commercially scheduled leg.93

Third, the FAA has addressed the 

reporting requirements for situations 

when a FDP is extended. Under the 

NPRM, the FAA proposed two different 

reporting requirements depending upon 

whether the operation was conducted 

pursuant to a U.S. government contract. 

This section has been modified to 

incorporate the reporting requirements 

listed in § 117.19 Flight Duty Period 

Extensions. Therefore, the certificate 

holder must file within 10 days any 

extended FDP and flight time that 

exceed the maximum permitted under 

the adopted regulations. The report 

must contain a description of the 

extended FDP and flight time 

limitations and the circumstances 

surrounding the situation requiring the 

extension. In addition, if the 

circumstances surrounding the situation 

were within the certificate holder’s 

control, the report must contain 

information on the certificate holder’s 

intended course of corrective action. 

This action must be implemented 

within 30 days from the date that the 

FDP was extended. 

The reporting of FDP extensions in 

this manner can facilitate the certificate 

holder and the FAA’s determination as 

to whether the certificate holder is 

properly planning its operations and 

mitigating the chances of its flightcrews 

exceeding the FDP limits. If a certificate 

holder cannot restructure its operations 

so that very few of these operations 

need to take advantage of this provision, 

the certificate holder is advised to 

develop an FRMS to address these 

operations. 

Several commenters were concerned 

with the proposal’s prohibition on any 

extension of the cumulative FDP and 

flight time limits if an extension to a 

daily FDP was triggered under this 

section. The FAA partially agrees with 

the commenters. For operations 

conducted pursuant to a deviation 

authorized under § 119.57, the FAA 

agrees that these circumstances may 

necessitate the flightcrew member’s 

ability to exceed the cumulative flight 

time and FDP limitations respectively 

found in §§ 117.23(b) and (c). Therefore, 

this section permits an extension of the 

flightcrew member’s FDP and flight time 

limitation even if it exceeds the 

cumulative requirements in 117.23 for 

operations that are conducted pursuant 

to a deviation authorized under 

§ 119.57. 

The FAA does not make such finding 

with respect to other operations 

conducted pursuant to a U.S. 

government contract. Even though these 

operations may fly into and out of 

hostile areas or areas that preclude the 

flightcrew members from proper rest 

facilities, the certificate holder is well 

aware of the operating environments 

where it is agreeing to conduct such 

operations. Therefore, these situations 

must be taken into account during the 

planning stages. A certificate holder 

needs to have considered and planned 

for whether the operations under 

contract will necessitate staging crews at 

other airports or installing rest facilities 

onboard the aircraft to enable 

augmentation, in order to ensure that 

flightcrews will not exceed FDP limit. 

For these operations, the cumulative 

limits on FDP and flight time apply. 

R. Miscellaneous Issues 

The FAA has also received a number 

of comments raising other significant 

issues. These comments, and the 

associated responses, are discussed 

below. 

Statutory Authority 

ATA stated that this rule exceeds the 

FAA’s statutory authority and that this 

rule cannot be promulgated pursuant to 

the authority delegated to the FAA in 49 

U.S.C. 44701(a)(5) because this rule 

does not increase aviation safety or 

national security. 

As the NPRM indicated, the authority 

for this rulemaking stems from 49 U.S.C. 

44701(a)(5), which requires the 

Administrator to promulgate 

‘‘regulations and minimum standards 

for other practices, methods, and 

procedure the Administrator finds 

necessary for safety in air commerce and 

national security.’’ Subsection 

44701(a)(5) ‘‘grants the FAA ‘broad 

authority to regulate civil aviation.’’’ 

Gorman v. National Transp. Safety Bd., 

558 F.3d 580, 590 (DC Cir. 2009) 

(quoting Ass’n of Flight AttendantsCWA v. Chao, 493 F.3d 155, 157 (D.C. 

Cir. 2007)).94

Here, the FAA finds that this 

rulemaking is necessary for safety in air 

commerce. As discussed in other 

portions of this preamble, the existing 

flight, duty, and rest regulations permit 

flightcrew members to accumulate 

unsafe amounts of fatigue. This unsafe 

accumulation of fatigue undermines 

aviation safety by increasing the risk of 

an accident.95 This rulemaking 

addresses this issue by imposing limits 

that will ensure that flightcrew 

members’ fatigue stays within safetyacceptable bounds. This will decrease 

the risk of an aviation accident, and 

thus, this rulemaking will increase 

safety in air commerce. Because this 

rulemaking will increase safety in air 

commerce, it is authorized by 49 U.S.C. 

44701(a)(5). 

As the NPRM also notes, additional 

authority for this rulemaking stems from 

49 U.S.C. 44701(a)(4). Subsection 

44701(a)(4) requires the Administrator 

to promulgate ‘‘regulations in the 

interest of safety for the maximum hours 

or periods of service of airmen and other 

employees of air carriers.’’ This rule 

reduces the fatigue experienced by 

flightcrew members during flight by 

limiting the maximum FDP and flighttime hours of airmen and other covered 


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388 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

employees of air carriers. Because this 

reduction in fatigue will increase 

aviation safety, the flight, duty, and rest 

limits that make up this rule are also 

authorized by subsection 44701(a)(4). 

Constitutional Due Process 

UPS argued that this rule is 

unconstitutional because its provisions 

substantially impair the collective 

bargaining agreement between UPS and 

IPA. Although UPS conceded that the 

Contracts Clause is not applicable to the 

federal government, UPS argued that 

‘‘similar principles apply [to the federal 

government] under the Due Process 

Clause.’’ UPS concluded that this rule 

violates the Fifth Amendment’s Due 

Process Clause because, UPS alleged, 

there is no justification for the 

contractual impairment imposed by this 

rule. 

The FAA agrees with UPS that the 

Contracts Clause is not applicable to 

actions, such as this rulemaking, that 

are undertaken by the federal 

government. Pension Ben. Guar. Corp. v. 

R.A. Gray & Co., 467 U.S. 717, 732 n.8 

(1984). With regard to UPS’ Fifth 

Amendment argument, the Supreme 

Court has explicitly rejected the premise 

that the Fifth Amendment’s Due Process 

Clause is ‘‘coextensive’’ with the 

Contracts Clause. Id. at 733. The Court 

emphasized that ‘‘to the extent that 

recent decisions of the Court have 

addressed the issue, we have contrasted 

the limitations imposed on States by the 

Contract Clause with the less searching 

standards imposed on economic 

legislation by the Due Process Clauses.’’ 

Id. Thus, under the standard set out by 

the Supreme Court, a federal regulation 

does not offend the Due Process Clause 

so long as that regulation is not 

‘‘arbitrary and irrational.’’ Id. 

This rule is neither arbitrary nor 

irrational. While the FAA initiated this 

rulemaking by establishing an ARC, we 

subsequently received a Congressional 

directive, which came about because the 

existing flight, duty, and rest regulations 

allowed flightcrew members to 

accumulate dangerous levels of fatigue. 

To address this issue and keep 

flightcrew-member fatigue within 

reasonable bounds, this rule: (1) Limits 

daily FDP and flight-time hours based 

on a flightcrew member’s circadian 

rhythm, (2) sets minimum rest 

requirements, and (3) encourages 

fatigue-mitigating measures such as 

split-duty rest and augmentation. This 

rule also contains a number of other 

provisions, which are based on specific 

fatigue and operational concerns and 

which are discussed in other parts of 

this preamble. In addition, each of the 

proposed provisions in this rule was 

amended, where possible, to respond to 

the specific concerns raised by the 

commenters. Because each provision in 

this rule has been carefully calibrated to 

mitigate flightcrew-member fatigue 

while providing air carriers with as 

much scheduling flexibility as possible, 

this rule is neither arbitrary nor 

irrational. Accordingly, this rule does 

not violate the Fifth Amendment’s Due 

Process Clause. 

Administrative Procedure Act 

ATA and a number of other industry 

commenters criticized the timetable 

used for this rulemaking. These 

commenters stated that the ARC for this 

rulemaking met on an unreasonably 

compressed schedule that did not 

provide it with sufficient time to 

carefully consider the pertinent issues 

and come to a consensus as to the 

proper resolution of those issues. CAA 

stated that, rather than provide the ARC 

with sufficient time to come up with a 

comprehensive set of recommendations, 

‘‘the overwhelming majority of all 

regulatory activity has focused 

exclusively on reductions to the current 

limitations on hours of duty and flight 

time limits without ever determining 

whether such hours of service 

considerations are in fact the underlying 

cause of any fatigue.’’ CAA concluded 

that ‘‘[a]s a result, the proposals 

contained in the NPRM are, on the 

whole, simply designed to reduce the 

flightcrew hours of service.’’ 

The industry commenters also stated 

that the NPRM was an ‘‘incomplete and 

ambiguous document’’ that did not 

provide them with sufficient detail to 

make meaningful comments. A number 

of commenters argued that the 

regulatory impact analysis used to 

develop the NPRM omitted important 

information, and thus, precluded the 

commenters from providing meaningful 

critique of this analysis. 

CAA also stated that the FAA should 

have waited to publish an NPRM until 

the National Research Council’s 

Committee on the Effects of Commuting 

on Pilot Fatigue provided a final report 

on the fatigue-related effects of pilot 

commuting. CAA stated that commuting 

is the primary cause of pilot fatigue, and 

that an understanding of pilot 

commuting is a necessary part of any 

flight, duty, and rest rule. 

In addition, the industry commenters 

argued that the FAA did not provide 

them with sufficient time to evaluate the 

NPRM and submit their comments. 

They stated that the FAA unreasonably 

refused their requests to extend the 60- 

day comment period and provided 

responses to their numerous 

clarification questions with less than 30 

days left in the comment period. Some 

commenters also stated that the FAA 

did not release a technical document 

that was used in the regulatory 

evaluation until there were only 23 days 

left in the comment period. The 

commenters pointed out that when the 

FAA conducted a similar rulemaking in 

1995, it extended the comment period, 

citing ‘‘the scope and complexity of the 

proposal.’’ The commenters also stated 

that an analogous rulemaking conducted 

by the Department of Transportation 

Federal Motor Carrier Safety 

Administration to establish rules on 

hours of service for commercial motor 

vehicles permitted an extension of the 

comment period for that rulemaking. 

The industry commenters stated that the 

existence of the ARC was not a 

sufficient justification for the short 

comment period because this rule 

includes a number of provisions that the 

ARC never considered. 

RAA suggested that the FAA issue a 

supplemental NPRM instead of 

finalizing this rule. RAA emphasized 

that the FAA received a large number of 

comments asking that substantial 

changes be made to this rule, and to 

account for the number and breadth of 

the comments, the FAA should issue a 

supplemental NPRM setting out its 

proposed resolution to the issues raised 

by the comments. 

In response to the above comments, 

the FAA notes that while it began this 

rulemaking by establishing an ARC, we 

subsequently received a Congressional 

directive contained in the Airline Safety 

and Federal Aviation Extension Act 

(ASFAEA). Section 212 of ASFAEA 

required the FAA to issue new flight, 

duty, and rest regulations. This section, 

in subsection 212(a)(3), set a deadline of 

180 days for the FAA to publish an 

NPRM and 1 year for the FAA to issue 

a final rule. 

Under normal circumstances, the 

FAA has broad discretion to extend the 

timeframe for some parts of the 

rulemaking process. As the above 

commenters correctly pointed out, the 

FAA has used this discretion in the past 

to extend the timeframe for parts of 

other rulemakings. However, in this 

case, the FAA has recognized that 

implicit within the shortened statutory 

deadline that Congress set for 

completing this rulemaking was a 

presumption against extending the 

timeframe for any part of this 

rulemaking. 

The FAA limited the ARC’s schedule 

to approximately six weeks. The ARC 

actually met on a weekly basis for at 

least 2 days per week. The FAA 

recognizes the tremendous amount of 

effort expended by the ARC members 


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96 In addition to reviewing the possibility of 

regulating pilot commuting, the National Research 

Council determined that fatigue mitigation needed 

to take into account multiple factors, including the 

duration of work periods within a single day and 

over time; the time of day that work occurs; 

duration of sleep on work days and non-work days, 

the volume and intensity of the work; and the 

different vulnerabilities of individuals to these 

factors (among others). This assessment is 

consistent with the FAA’s assessment of fatigue 

risk. 

97Citing 67 FR 61719 (Oct. 1, 2002). 

during this time. At the six-week point, 

the FAA found that the ARC had 

achieved its goal of highlighting issues 

for the FAA to consider as part of the 

FAA’s subsequent rulemaking 

deliberations. Because most of these 

issues elicited strong divergent opinions 

from the labor and industry ARC 

members and because these divergent 

opinions could not be reasonably 

reconciled, the FAA concluded that 

extending the ARC’s timeframe would 

not result in a consensus set of ARC 

recommendations. 

The FAA disagrees with CAA’s 

assertion that the ARC’s timeframe was 

not extended because the FAA wanted 

to design a rule that ‘‘reduce[s] the 

flightcrew hours of service.’’ While 

some parts of this rule reduce flightcrew 

members’ hours of service, other parts 

increase those hours in a way that is 

consistent with safety considerations. 

Thus, for example, this rule increases 

the existing 8-hour unaugmented daily 

flight-time limit to 9 hours for periods 

of peak circadian alertness. 

Turning to the length of the comment 

period that was used for this 

rulemaking, the FAA chose not to 

extend this rule’s comment period due 

to the detailed comments that it 

received and the implicit statutory 

presumption against extensions in this 

rulemaking. At the end of the 60-day 

comment period, the FAA examined the 

comments that were submitted in 

response to the NPRM, and determined 

it was unlikely that an extension of the 

comment period would have a 

significant effect on comment quality. 

During the 60-day comment period, 

thousands of comments were submitted 

in response to this rulemaking, and 

many of those comments contained 

lengthy comprehensive analyses of 

every single part of the NPRM, as well 

as a critique of the regulatory 

evaluation. A number of commenters 

hired their own experts to provide 

detailed substantive reports on the 

NPRM, and these reports were 

submitted to the FAA during the 60-day 

comment period. Based on the 

comprehensive and detailed comments 

received during the 60-day comment 

period, the FAA determined that it had 

received sufficient information to 

proceed with this rulemaking. In light of 

this fact and the need to comply with 

the statutory deadline for this 

rulemaking, the FAA chose not to 

extend the comment period. 

The FAA also notes that, as the NPRM 

pointed out, the FAA has a policy of 

considering comments that are ‘‘filed 

after the comment period has closed if 

it is possible to do so without incurring 

expense or delay.’’ 75 FR 55884. Thus, 

for example, as part of its consideration 

of augmented FDPs, the FAA took into 

account Continental and ALPA’s 

comments about ULR flights, even 

though those comments were filed four 

months after the comment period 

closed. Because the FAA has a very 

liberal late-filed-comments policy, if the 

affected parties had important new 

comments that they wanted to file after 

the 60-day comment period closed, 

those parties had ample opportunity to 

file their comments after the closure of 

the comment period. 

As the commenters pointed out, about 

halfway through the comment period, 

the FAA provided answers to clarifying 

questions that the commenters 

submitted, as well as a technical report 

that was referred to by the regulatory 

evaluation. While this information, 

which was provided with over 23 days 

left in the comment period, was 

important, it was not a central 

component of the NPRM. Moreover, the 

commenters appear to have fully 

incorporated this information into their 

filed comments, as the comments 

contained a comprehensive analysis of 

both the clarifying answers and the 

regulatory evaluation. 

Turning to the sufficiency of the 

NPRM, the FAA finds that the NPRM 

provided enough detail for the 

commenters to provide the FAA with 

meaningful comments. The NPRM set 

out the regulatory provisions that the 

FAA proposed for the new flight, duty, 

and rest regulations, and the NPRM also 

explained the rationale for each of those 

provisions. After reading the NPRM and 

the accompanying regulatory 

evaluation, the affected parties provided 

the FAA with thousands of comments, 

many of which analyzed in detail every 

provision of the NPRM and provided a 

critique of the FAA’s rationale for each 

of those provisions. While many of the 

commenters disagreed with parts of the 

NPRM, most of them appear to have had 

a clear understanding of the NPRM. The 

affected parties also submitted very 

detailed critiques of the regulatory 

evaluation that accompanied the NPRM 

which showed an understanding of the 

regulatory evaluation. 

As a result of the comprehensive and 

detailed analyses that were submitted 

by the commenters, the FAA 

incorporated many of the commenters’ 

suggestions into the final rule and the 

final Regulatory Impact Analysis. This 

process improved the final rule and 

accomplished the requirements of the 

Administrative Procedure Act. 

Turning to CAA’s comment, the FAA 

notes that since commencing this 

rulemaking activity, the National 

Research Council has completed its 

report. The authors of the report 

independently determined that it is 

premature to initiate rulemaking related 

to commuting. See The Effects of 

Commuting on Pilot Fatigue, National 

Research Council, July 6, 2011.96 While 

pilot commuting is an important fatiguerelated issue, this rulemaking does not 

foreclose the FAA from conducting a 

rulemaking in the future to address pilot 

commuting issues should better and 

more complete information of the risks 

posed by commuting and methods to 

alleviate that risk become available. 

The FAA has also decided not to issue 

a supplemental NPRM as part of this 

rulemaking. As discussed above, the 

FAA received numerous thorough and 

high-quality comments in response to 

the original NPRM. Many of the 

comments have been incorporated into 

the final rule. We have made no changes 

that were not either originally 

contemplated in the NPRM or a logical 

outgrowth of that document. 

Information Quality Act and OMB 

Bulletin M–05–03 

ATA asserted that the NPRM violated 

the Information Quality Act (IQA), as 

applied by the Department of 

Transportation’s (DOT) Information 

Dissemination Quality Guidelines 

(Guidelines).97 ATA argued that the 

Guidelines require FAA rulemakings to 

meet defined standards of quality, 

objectivity, utility and integrity. ATA 

then argued that ‘‘[d]espite the IQA’s 

clear mandate and DOT’s guidance, 

however, the present NPRM contains no 

accurate, clear, objective and unbiased 

information supporting the FAA’s 

proposed overhaul of the existing 

flightcrew member flight and duty time 

limitations and rest requirements.’’ ATA 

stated that the scientific information 

used to support the provisions of the 

NPRM could not meet the standards set 

out in the Guidelines because it was not 

validated in the aviation context. CAA 

added that the FAA’s failure to provide 

additional regulatory-impact 

information requested by CAA was also 

a violation of the IQA. UPS argued that 

the scientific information used in this 

rulemaking violated OMB Bulleting M– 


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98The FAA also notes that the DOT Guidelines 

are simply the ‘‘policy views of DOT.’’ Guidelines 

section III. These Guidelines ‘‘are not intended to 

be, and should not be construed as, legally binding 

regulations or mandates.’’ Id. 

05–03 because it was not subjected to 

peer review. 

The DOT Guidelines state that, in the 

context of a rulemaking, the method by 

which an agency should correct alleged 

violations of the IQA is by responding 

to the pertinent public comments in the 

preamble to the final rule. Guidelines 

section VIII. In this case, a number of 

commenters argued that certain 

provisions of the NPRM were not 

supported by scientific information. A 

significant number of scientific studies 

were referenced in the NPRM. However, 

in response to the commenters’ 

scientific concerns, the FAA has 

included either additional scientific 

information supporting the studies cited 

in the NPRM or an explanation for why 

the scientific information and 

operational experience cited in the 

NPRM is sufficient to justify the 

pertinent regulatory provision. 

The FAA notes that, while some of 

the studies used in the final rule have 

not been validated in the aviation 

context, the major provisions of this rule 

are based on uncontroversial scientific 

findings that apply to all human beings. 

As the NPRM pointed out, sleep 

science, while still evolving, is clear in 

several important respects: 

Most people need eight hours of sleep to 

function effectively, most people find it more 

difficult to sleep during the day than during 

the night, resulting in greater fatigue if 

working at night; the longer one has been 

awake and the longer one spends on task, the 

greater the likelihood of fatigue; and fatigue 

leads to an increased risk of making a 

mistake. 

75 FR 55857. These uncontroversial 

scientific findings form the basis for 

almost all of the major provisions in this 

rule. The FAA has concluded that, even 

though some of these findings were not 

based on aviation data, flightcrew 

members have the same fatigue 

concerns as other human beings, and as 

such, there is no reason to believe that 

these findings would not apply to 

flightcrew members. 

However, in the process of 

considering the comments, the FAA 

found that some of the provisions of the 

NPRM, such as portions of the proposed 

fitness-for-duty section and the 

cumulative duty-period limit, were not 

justified by scientific studies and 

operational experience. Consequently, 

these provisions were removed from the 

final rule. Because, in this preamble, the 

FAA responded to comments 

questioning the scientific basis for the 

NPRM and removed regulatory 

provisions that could not be justified 

through scientific findings or 

operational experience, this rule does 

not violate the IQA and the DOT 

Guidelines.98

Turning to OMB Bulletin M–05–03, 

this Bulletin requires that ‘‘[t]o the 

extent permitted by law, each agency 

shall conduct a peer review on all 

influential scientific information that 

the agency intends to disseminate.’’ 

OMB Bulletin M–05–03, section II(1). 

The studies cited in this document were 

not conducted on behalf of the FAA and 

only generally note trends in sleep 

science. As noted earlier in this 

document, sleep science does not now, 

and likely never will, reach the level of 

certainty that would allow an agency to 

make public policy decisions based 

solely on scientific studies. While the 

science is informative, final decisions 

will necessarily be based on a balancing 

of interests in the real world rather than 

on rigid adherence to scientific studies. 

This rule complies with this Bulletin 

because almost all of the scientific 

information cited in this preamble 

comes from peer-reviewed scientific 

journals. Two notable exceptions are the 

TNO Report and the SAFTE/FAST 

modeling that was used in parts of this 

rule. However, the FAA has determined 

that both the TNO Report and the 

SAFTE/FAST model have been 

evaluated sufficiently to provide useful 

information to the agency in making 

policy decisions on how best to balance 

the needs of carriers to maximize their 

operations while still providing 

sufficient and meaningful rest 

opportunities to mitigate the risk of 

fatigue to those operations. The TNO 

Report’s findings were reviewed by the 

Scientific Review Board of the 

Netherlands Organization for Applied 

Scientific Research, Department of 

Behavioral and Social Sciences (which 

complies with ISO 9001:2000 

certification standards) and the review 

board of the Directorate General 

Transport and Aviation of the 

Netherlands Ministry of Transport. 

Turning to the SAFTE/FAST model, as 

the NPRM pointed out ‘‘[t]his model is 

widely used, with approximately 14 

major carriers and sixteen governmental 

agencies world-wide having used the 

model to evaluate fatigue in aviation 

and other industrial settings.’’ 75 FR 

55867 n.35. The NPRM also noted that 

a copy of the technical report evaluating 

this model has been placed on the 

docket, and, in addition, the NPRM 

cited a number of studies that either 

evaluated or utilized the SAFTE/FAST 

model. See id. n.34. 

Executive Order 12866 

A number of industry commenters 

stated that this rulemaking does not 

comply with Executive Order 12866 

because: (1) Its benefits do not justify its 

costs, (2) it is not based on scientific 

information, (3) the FAA has not 

assessed alternatives, and (4) the rule is 

unduly burdensome. 

The commenters stated that the FAA 

admitted that sleep science has not been 

validated in the aviation context and 

portions of this rule, such as cumulative 

duty-period limits and lower 

unaugmented FDP limits for additional 

flight segments, are not based on 

scientific evidence. ATA and UPS 

argued that this rule also violated 

Section 212 of the Airline Safety and 

Federal Aviation Extension Act because, 

according to ATA and UPS, this rule is 

not based on the best science. 

ATA and RAA criticized the FAA’s 

approach to this rulemaking. RAA 

stated that the ARC members whose 

recommendations were used in this 

rulemaking have considerable 

operational experience, and that the less 

conservative, air carrier ARC 

recommendations were based on this 

experience and did not undermine 

safety. RAA added that some of the 

specific limits set out in this rule could 

have been increased due to the fact that 

this rule contains significant safety 

oversight provisions. 

The industry commenters also stated 

that the FAA has not considered 

alternatives to this rule because its 

‘‘one-size fits all’’ proposal does not take 

into account ‘‘the unique needs of 

individual carriers or types of 

operations.’’ ATA stated that this rule is 

unduly burdensome because the NPRM 

‘‘improperly treats passenger, cargo, 

short-haul, long-haul, domestic, and 

international carriers and operations the 

same despite their crucial, differing 

operational demands and crew 

scheduling requirements.’’ 

NACA asserted that the FAA never 

considered the alternative proposals 

submitted by supplemental air carriers. 

NACA added that the FAA never 

explained why it excluded part 135 

operators from this rule, but did not 

exclude other small business entities 

such as supplemental air carriers. ATA 

stated that the FAA did not carefully 

consider the impact that maintaining 

the status quo would have on small 

business entities, and that this violated 

the Regulatory Flexibility Act. 

Executive Order 12866 requires, 

among other things, that a federal 

agency: (1) ‘‘propose or adopt a 


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99See supra notes 36–38. 

regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs;’’ (2) 

base its decision on the best available 

scientific information; (3) consider 

alternatives to the proposed regulation; 

and (4) ‘‘tailor its regulations to impose 

the least burden on society, including 

individuals, businesses of differing 

sizes.’’ 

The FAA has determined that the 

benefits of this rule justify its costs. A 

detailed discussion explaining the 

FAA’s basis for this determination is 

contained in the Regulatory Impact 

Analysis. The FAA has also used the 

best available scientific information as 

the basis for this rule. As discussed in 

the preceding section, most of the 

provisions in this rule are supported by 

the latest peer-reviewed scientific 

studies. While some of these peerreviewed studies have not been 

validated in the aviation context, as 

discussed above, the major provisions of 

this rule are based on uncontroversial 

scientific findings that apply to all 

human beings. 

The FAA acknowledges that the 

proposed cumulative duty-period limits 

were largely unnecessary, which is why 

they have been removed from the final 

rule. With regard to lower unaugmented 

FDP limits for additional flight 

segments, as the pertinent section of this 

preamble points out, a number of 

scientific studies support the premise 

that an increase in the number of flight 

segments leads to an increase in 

flightcrew member fatigue.99 The FAA 

also acknowledges that certain 

provisions of the NPRM were unduly 

conservative, and these provisions have 

been amended in response to concerns 

expressed by the commenters. For 

example, the unaugmented FDP limits, 

which were based on the most 

conservative ARC recommendation, 

have been amended in accordance with 

higher FDP-limit alternatives that were 

proposed by industry commenters. 

The FAA has also considered 

alternatives to the provisions set out in 

the NPRM. As the NPRM stated, the 

FAA has considered the alternative of 

maintaining the status quo, but rejected 

that alternative because the status quo 

subjects society to an ‘‘unacceptably 

high aviation accident risk.’’ 75 FR 

55882. For example, as discussed in the 

Applicability section of this preamble, 

some of the FDPs permitted by the 

existing regulations can result in a fivefold increase to accident risk. 

The FAA has also considered the 

alternative of differentiating between 

different types of part 121 operations. 

As a result, the FAA has decided to 

make the provisions of this rule 

voluntary for all-cargo operations, as 

subjecting all-cargo operations to the 

same mandatory flight, duty, and rest 

regulations as passenger operations 

would result in costs that far outweigh 

the commensurate societal benefit. 

The FAA also considered 

differentiating between the different 

types of part 121 passenger operations. 

However, the FAA ultimately decided 

against this approach because, as 

discussed in the Applicability section, 

the factors that lead to fatigue are 

universal and, unlike all-cargo 

operations, imposing this rule on 

passenger operations is cost-justified. A 

flightcrew member who is working on a 

16-hour unaugmented FDP will feel the 

same level of fatigue regardless of the 

type of operation that he or she is 

participating in. Accordingly, this rule 

uniformly regulates the universal fatigue 

factors in passenger operations 

regardless of the specific part 121 

passenger operation that is involved. 

The FAA has also considered the 

impact that this rule would have on 

supplemental passenger operations, and 

it has incorporated a number of 

suggestions from carriers who conduct 

supplemental operations and 

organizations that represent those 

carriers, into the final rule. The reason 

that the FAA excluded part 135 

businesses regardless of size, but did not 

exclude air carriers who conduct 

supplemental operations from this rule, 

is that the air carriers who conduct 

supplemental operations operate under 

part 121 which contains more stringent 

safety standards than those found in 

part 135. Pursuant to the Regulatory 

Flexibility Act, the FAA also considered 

the impact of this rule on small 

businesses, and the pertinent discussion 

can be found below. 

Throughout this rulemaking, the FAA 

has attempted to impose the least 

possible burden on air carriers, 

consistent with the need to improve 

safety. As many commenters pointed 

out, some provisions of this rule are 

complex because the FAA has 

consistently decided against imposing 

across-the-board flight, duty, and rest 

limitations, which would have been 

more stringent than necessary. Instead, 

this rule imposes stringent limits in 

safety-critical areas, such as the WOCL, 

and less stringent limits in other areas, 

such as unaugmented FDPs that begin in 

the morning. 

The FAA also notes that the uniform 

approach used in this rulemaking 

provides additional scheduling 

flexibility to air carriers. For example, 

because this rule does not differentiate 

between international and domestic 

flights (aside from acclimation and timezone-crossing issues), this rule permits 

augmentation on domestic flights, 

which existing regulations do not allow. 

In addition, because this rule does not 

differentiate between supplemental 

passenger operations and other part 121 

passenger flights, this rule does not 

require supplemental passenger 

operations to provide flightcrew 

members with additional compensatory 

rest that is mandated by existing 

regulations. Accordingly, this rule 

complies with Executive Order 12866 

because it: (1) Has benefits that justify 

its costs, (2) is based on the best 

available scientific information, (3) was 

finalized after the FAA considered a 

number of other alternatives, and (4) is 

tailored to impose the least burden on 

society. 

Voluntary Consensus 

ATA argued that this rule should have 

used a voluntary consensus standard 

instead of a government-unique 

standard. ATA stated that OMB Circular 

A–119 requires agencies to use 

voluntary standards whenever possible, 

and that the short time span given to the 

ARC was not sufficient for the ARC to 

address the complex issues present in 

this rulemaking. 

As an initial matter, the FAA notes 

that there is no voluntary consensus 

standard for the issues addressed by this 

rulemaking. The FAA disagrees with 

ATA’s assertion that OMB Circular A– 

119 requires the FAA to use a voluntary 

consensus standard in this rulemaking. 

Subsection 6(c) of OMB Circular A–119 

states that: 

This policy does not preempt or restrict 

agencies’ authorities and responsibilities to 

make regulatory decisions authorized by 

statute. Such regulatory authorities and 

responsibilities include determining the level 

of acceptable risk; setting the level of 

protection; and balancing risk, cost, and 

availability of technology in establishing 

regulatory standards. 

This rulemaking consists of the FAA 

exercising its regulatory responsibility 

and establishing the acceptable level of 

fatigue-related risk, setting the 

appropriate level of protection from 

fatigue, and balancing the risks of 

fatigue with the costs that will be borne 

by air carriers as a result of this rule. 

Because subsection 6(c) of OMB 

Circular A–119 excludes this type of 

agency action from the circular’s 

requirements, OMB Circular A–119 does 

not preempt or restrict the FAA’s 

statutory authority to conduct this 

rulemaking. See id. 


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392 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

100See OMB submission from ALPA dated 

October 28, 2011. http://www.whitehouse.gov/omb/ 

oira_2120_meetings/. 

Public Interest 

ATA stated that this rule would also 

harm the public interest by: (1) 

Reducing the number of U.S. jobs by 

hurting the competitive nature of the 

U.S. air carrier industry; (2) harm the 

U.S. economy by imposing excessive 

costs on air carriers; (3) disrupt air 

travel and waste passengers’ air time as 

a result of additional cancelled and 

delayed flights; and (4) disrupt critical 

air deliveries. 

As discussed above, this rule does not 

hurt the competitive nature of the U.S. 

air carrier industry. This rule simply 

reflects a different conceptual approach 

that the FAA utilized in light of its 

significant operational experience with 

daily flight-time limits. With regard to 

the remaining concerns expressed in the 

comments, as discussed in the 

Regulatory Impact Analysis, the costs 

that are imposed by this rule are 

justified by the associated benefits of 

reducing the risk that passengers will be 

involved in an accident. 

Two-Year Effective Date 

RAA also stated that a two-year 

effective date for this rule may be too 

short given the magnitude of the 

changes being proposed, and the 

complex process, development, training, 

and system programming, testing and 

implementation that would be required 

to effect those changes cannot be 

properly accomplished in such a time 

period. RAA emphasized that the 

changes being proposed by this rule ‘‘go 

to the very heart’’ of an airline’s 

operations. 

The FAA understands that this rule 

imposes complex new requirements that 

go to the heart of an airline’s operations. 

That is why this rule provides air 

carriers with two years to make changes 

to their existing flight schedules and 

operations and if necessary, to address 

any labor agreement issues. The FAA 

has determined that two years is a 

substantial period of time, and that a 

longer effective date is unwarranted in 

light of the fact that, as discussed above, 

existing regulations allow flightcrew 

members in passenger operations to 

accumulate unsafe amounts of fatigue. 

Federal Motor Carrier Safety 

Administration Hours of Service 

Rulemaking 

FMCSA has been engaged in longterm rulemaking related to its hours of 

service regulations for commercial truck 

drivers. Like the FAA, FMCSA is 

working to address the universality of 

factors that lead to fatigue. However, the 

FAA has taken a different approach in 

addressing fatigue risk among pilots 

than FMCSA has with respect to 

commercial truck drivers. This is 

because the two industries operate 

differently both in terms of the likely 

number of days the affected individuals 

work per month and the respective 

operating environments. For example, 

pilots regularly cross multiple time 

zones in a very short period of time— 

something that is simply not possible in 

other modes of transportation. 

Additionally, pilots may work several 

days that are very long, but then be off 

for an extended period of time, a 

practice that naturally imposes a nonregulatory restorative rest opportunity. 

Finally, the nature of commercial flying 

is such that under typical conditions, 

the actual operation is likely to require 

intense concentration primarily during 

take-offs and landings, with a constant, 

but generally predictable level of 

concentration required for other phases 

of flight. 

In contrast, commercial truck drivers 

face an environment where they are 

required to share the highways with 

drivers who have not received 

specialized training and are not subject 

to any regulatory constraints that pilots 

are subject to. This environment could 

logically lead to a regulatory approach 

with different fatigue mitigators for 

daytime operations on congested 

highways, compared to nighttime 

operations, where the roads are less 

crowded but the risk of fatigue is 

greater. 

IV. Regulatory Notices and Analyses 

A. Regulatory Evaluation 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 and 

Executive Order 13563 directs that each 

Federal agency shall propose or adopt a 

regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 (Pub. L. 96–354) requires 

agencies to analyze the economic 

impact of regulatory changes on small 

entities. Third, the Trade Agreements 

Act (Pub. L. 96–39) prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. In 

developing U.S. standards, the Trade 

Agreements Act requires agencies to 

consider international standards and, 

where appropriate, that they be the basis 

of U.S. standards. Fourth, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4) requires agencies to prepare a 

written assessment of the costs, benefits, 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more annually (adjusted 

for inflation with base year of 1995). 

This portion of the preamble 

summarizes the FAA’s analysis of the 

economic impacts of this proposed rule. 

The FAA suggests readers seeking 

greater detail read the full regulatory 

impact analysis, a copy of which the 

agency has placed in the docket for this 

rulemaking. 

In conducting these analyses, the FAA 

has determined that this final rule: (1) 

Has benefits that justify its costs even 

though under the base case scenario the 

quantified costs are greater than the 

quantified benefits, (2) is not an 

economically ‘‘significant regulatory 

action’’ as defined in section 3(f) of 

Executive Order 12866, (3) is 

‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures; (4) 

will have a significant economic impact 

on a substantial number of small 

entities; (5) will not create unnecessary 

obstacles to the foreign commerce of the 

United States; and (6) will not impose 

an unfunded mandate on state, local, or 

tribal governments, or on the private 

sector by exceeding the threshold 

identified above. These analyses are 

summarized below. 

Total Benefits and Costs Over a 10 Year 

Period 

We have analyzed the benefits and the 

costs associated with the requirements 

contained in this Final Rule over a 10 

year period. We provide a range of 

estimates for our quantitative benefits. 

Our base estimate is $376 million ($247 

million present value at 7% and $311 

million present value at 3%) and our 

high case estimate is $716 million ($470 

million present value at 7% and $593 

million at 3%). The total estimated cost 

of the Final Rule is $390 million ($297 

million present value at 7% and $338 

million at 3%). 

Additionally, the FAA believes there 

are substantial, non-quantified health 

benefits associated with the final rule. 

The agency has not evaluated the effect 

of fatigue on the overall, long-term 

health of the pilot community because 

those health impacts are unlikely to 

have an impact on aviation safety in a 

quantifiable manner. However, as ALPA 

noted in one of its meetings with OMB 

under its E.O. 12866 procedures, the 

societal cost associated with long-term 

fatigued-related health problems can be 

substantial.100 Decreasing these costs 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 393 

represents a societal benefit. While we 

have not quantified these potential 

benefits, they may well exceed the 

projected costs of the rule when added 

to our base case estimate. 

The actual benefits of the final rule 

will depend upon the type and size of 

accident that the rule averts. We have 

provided a base case estimate, based on 

historical accidents and the regulatory 

structure in place at the time those 

accidents occurred, and a high estimate, 

based on a projection of future accidents 

that broadly reflect the historical 

accident profile. Neither estimate 

assumes a catastrophic accident aboard 

a large passenger aircraft. This is 

because no large passenger aircraft were 

represented in the historical accident 

analysis rather than because there is no 

fatigue-related risk to those operations. 

We note that preventing a single 

catastrophic accident with 61 people on 

board would cause this rule to be cost 

beneficial. 

Total benefits over 10 years 

Estimate Nominal 

(millions) 

PV at 7% 

(millions) 

PV at 3% 

(millions) 

Base ......................................................................................................................................................... $376 $247 $311 

High .......................................................................................................................................................... 716 470 593 

Total costs over 10 years 

Component Nominal 

(millions) 

PV at 7% 

(millions) 

PV at 3% 

(millions) 

Flight Operations ..................................................................................................................................... $236 $157 $191 

Rest Facilities .......................................................................................................................................... 138 129 134 

Training .................................................................................................................................................... 16 11 13 

Total .................................................................................................................................................. 390 297 338 

Benefits of the Rule 

The benefit analysis first examines the 

nature of fatigue, followed by its causes 

and how it relates to transportation. 

Second, it summarizes some recent 

findings on fatigue and occupational 

performance. Third, it looks at the 

magnitude of crew fatigue in Part 121 

commercial aviation by briefly 

examining fatigue reports in the context 

of this final rule. We then re-analyze the 

likely effectiveness of the requirements 

contained in this final rule and the 

potential to decrease these types of 

accidents in the future. The FAA 

projects a likely number of preventable 

events that will occur in absence of this 

final rule. Finally, the agency estimates 

the benefits that will be derived from 

preventing such events and a range of 

benefits based upon likely scenarios. 

Here the FAA provides a quantitative 

benefit estimate of historical-based 

accidents (base case), and a high case of 

expected benefits from future averted 

accidents once this rule is promulgated. 

Generally our benefit analysis begins 

using past history as an important 

reference from which to begin the 

benefit analysis. We believe the base 

case benefit estimate, which is based 

solely on the outcome of past accidents, 

may be low because today passenger 

load factors and aircraft size are already 

greater than they were in the past 

decade. We also note that this estimate 

may not fully take into account changes 

in regulatory requirements that postdate 

those accidents and that may mitigate 

the projected risk. As such, our base 

case estimate represents a snapshot of 

risk. 

Airplane accidents are somewhat 

random both in terms of airplane size 

and the number of people on board. For 

these reasons, projections of future 

fatalities may be based on future risk 

exposure, and our projections are 

typically based on expected 

distributions around the mean. Our 

typical scenario incorporates increasing 

airplane size, expected load factors, and 

a breakeven analysis. However, our 

evaluation of the historical accidents 

showed a disproportionate risk among 

smaller, regional carriers. Accordingly, 

as we discuss below, the FAA has 

decided to base its high case estimate on 

preventing an accident in a regional jet 

airplane. 

In response to comments, we have 

reduced the analysis period from the 20 

years provided in the proposed 

regulatory analysis to 10 years here. We 

received comments disputing the use of 

a 20 year time frame for accidents 

stating the accident rate has declined 

over time. While noting the wide range 

of operations over the last 20 years, we 

shortened the accident history to the 

last ten years. A reduction in the length 

of the sample period introduces other 

problems, most importantly with less 

time there are fewer observations. 

Observations are important, as the 

nature of aviation accidents is that 

while they are rare events, very often 

these accidents result in severe, high 

consequences. 

The FAA Office of Accident 

Investigation assessed the effectiveness 

of this rule to prevent the 6 fatiguerelated accidents which occurred on 

passenger-carrying aircraft in a recent 

ten year period. This office used the 

Commercial Aviation Safety Team 

(CAST) methodology to assign a value to 

how effective the rule will be at 

preventing each accident. On average, 

we expect this rule would have been 

52.5 percent effective in preventing the 

types of accidents had it been in effect 

over the last 10 years. 

Base Case Estimate 

The base case estimate only looks at 

the historical events as a specific 

reference point. In this estimate the 

exact number of fatalities for each past 

event is multiplied by the relative rule 

effectiveness score to obtain the 

historical number of deaths that would 

have been averted with the 

requirements contained in this final 

rule, had this rule been in effect at the 

time. The base case estimate supposes 

roughly six deaths will be averted 

annually. Multiplying six annual 

averted deaths by the $6.2 million value 

of statistical life equals $37 million 

annually. In addition, had the 

requirements been in place at the time 

of these historical accidents, $2 million 

in hull damage for each accident would 

have been averted, which equals $6 

million for ten years or $0.6 million 

annually. When summed over the ten 

year period of analysis, the base case 

estimate is $376 million ($247 million 

present value at 7% and $311 million 

present value at 3%). 


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101 It is unusual that collective bargaining 

agreements would closely mirror regulatory 

requirements. However, flight and duty limitations 

are unique because they address both safety 

considerations, which are regulatory in nature, and 

lifestyle considerations, which are properly 

addressed in collective bargaining agreements. 

Because of the impact of collective bargaining 

agreements on the number of hours that pilots 

work, those agreements were considered by the 

FAA in calculating both the costs and benefits of 

this rule. 

102Table 6, FAA Aerospace Forecasts Fiscal Years 

2011. 

103 In contrast, the value of an averted all-cargo 

fatal accident would range between $20.35 million 

(loss of hull and 2 crewmembers) and $32.55 

million (loss of hull and 4 crewmembers). 

High Case Estimate 

Because airplane accidents are 

relatively rare they are not necessarily 

representative of actual risk, especially 

with regard to airplane size and the 

number of people on-board. In addition, 

future conditions will be different than 

they were when the accident occurred. 

Thus, the base case represents a 

snapshot of the risk that fatigue 

introduces in the overall operating 

environment. It considers neither the 

forecasted increase in load factors nor 

the larger aircraft types. The future 

preventable events that this rule 

addresses will not exactly mirror the 

past events because the airplane types, 

utilization, and seating capacity have 

changed. 

To quantify the expected benefits in 

the high case scenario, we narrowed the 

analysis to three of the six historic 

accidents which were catastrophic (all 

on board died). In this case the expected 

number of preventable catastrophic 

accidents equals the three accidents 

multiplied by the 52.5 percent 

effectiveness rate. Thus over a ten-year 

time period the expected number of 

preventable accidents is 1.575. Using 

the Poisson distribution there is roughly 

a 20 percent chance for no accident; 

however, there is also a 50 percent 

probability of two or more accidents. 

While the 20 year accident history has 

a broader range of catastrophic 

accidents, in the shorter ten year 

historical period all the three 

catastrophic accidents were on regional 

airplanes. We recognize that as regional 

airplanes are smaller than the ‘typical’ 

passenger jet, assuming all future 

accidents would be on a regional jet 

may understate the relative risk across 

the fleet of aircraft affected by this rule. 

It does, however, represent historical 

accidents and may be somewhat 

representative actual future risk, since 

the mainline carriers typically have 

collective bargaining agreements that 

are already largely reflective of the 

requirements of this rule.101

The average size airplane in the 

forecast period is a B737/A320 with an 

expected number of passengers and 

crew of 123 given a forecasted 142 seat 

airplane and a load factor of 83 

percent.102 Even though there was a 

(relatively large) B757 passenger 

airplane accident in the 20 year history, 

if one looks at the past 10 years as truly 

representative of risk, the preventable 

accident would likely be on a regional 

airplane. 

For the high case the FAA backed 

away from a benefit outcome based on 

mean fleet, flight hours, and occupant 

numbers because ultimately we were 

persuaded there was information which 

could not be ignored by the three 

regional passenger accidents occurring 

without a mainline passenger accident. 

For this reason, we selected an 88 seat 

regional jet (like an ERJ–175) to be the 

representative airplane for the high case. 

This size airplane is also consistent with 

the fact that regional operators are 

expected to fly somewhat larger 

airplanes in the future. 

The expected benefit from this high 

case follows a simple methodology for 

estimating and then valuing the 

expected number of occupants in a 

prevented accident. With a total of 0.3 

accidents per year over the ten year 

period multiplied by the 52.5 percent 

effectiveness rate, the analysis assumes 

0.1575 average accidents per year. The 

estimated occupant value for each 

averted accident equals the average 

number of seats (88) multiplied by the 

load factor of 77% plus 4 crew members 

for a total of 72 averted fatalities. Each 

of these prevented fatalities is 

multiplied by a $6.2 million value of 

statistical life. The expected value of a 

preventable accident equals the sum of 

the averted fatalities at $446.4 million 

added to the value of the airplane hull 

loss ($8.15 million replacement value), 

for a prevented accident benefit of 

$454.6 million.103 Over a ten year 

period the value of preventing the 

expected 1.575 accidents equals 

approximately $716 million ($470 

million present value at 7% and $593 

million present value at 3%). 

Cost of the Rule 

The total estimated cost of the Final 

Rule is $390 million ($297 million at 

7% present value and $338 million at 

3% present value). The FAA classified 

costs into three main components and 

estimated the costs for each component. 

Data was obtained from various industry 

sources; the sources of the data used in 

cost estimation are explained in each 

section. Flight operations cost accounts 

for 53 percent of the total present value 

cost of the rule. Rest facilities and 

fatigue training accounts for 

approximately 43 percent and 4 percent, 

respectively. Each of the main cost 

components is explained in-depth in the 

Regulatory Evaluation. 

Cost component Nominal cost 

(millions) 

PV at 7% 

(millions) 

PV at 3% 

(millions) 

Flight Operations ......................................................................................................................... $236 $157 $191 

Rest Facilities .............................................................................................................................. 138 129 134 

Training ........................................................................................................................................ 16 11 13 

Total ...................................................................................................................................... 390 297 338 

Alternatives Considered—The 

alternatives are shown in the section 

‘‘Final Regulatory Flexibility Analysis’’ 

B. Final Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 1980 

(RFA) establishes ‘‘as a principle of 

regulatory issuance that agencies shall 

endeavor, consistent with the objective 

of the rule and of applicable statutes, to 

fit regulatory and informational 

requirements to the scale of the 

business, organizations, and 

governmental jurisdictions subject to 

regulation.’’ To achieve that principle, 

the RFA requires agencies to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions. The RFA covers a wide-range of 

small entities, including small 

businesses, not-for-profit organizations 

and small governmental jurisdictions. 

Agencies must perform a review to 

determine whether a proposed or final 

rule would have a significant economic 

impact on a substantial number of small 

entities. If the determination is that it 

would, the agency must prepare a 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 395 

regulatory flexibility analysis as 

described in the RFA. 

The FAA believes that this final rule 

will have a significant economic impact 

on a substantial number of small entities 

and therefore has performed final 

regulatory flexibility analysis in 

accordance with section 604(a)(1)–(5), 

highlighted below: 

1. A succinct statement of the need 

for, and objectives of, the rule. 

2. A summary of the significant issues 

raised by the public comments in 

response to the IRFA, a summary of the 

assessment of the agency of such issues, 

and a statement of any changes made in 

the proposed rule as a result of such 

comments. 

3. A description and an estimate of 

the number of small entities to which 

the rule will apply or an explanation of 

why no such estimate is available. 

4. A description of the projected 

reporting, recordkeeping, and other 

compliance requirements of the rule, 

including an estimate of the classes of 

small entities that will be subject to the 

requirement and the types of 

professional skills necessary for 

preparation of the report or record. 

5. A description of the steps the 

agency has taken to minimize the 

significant adverse economic impact on 

small entities consistent with the stated 

objectives of applicable statutes, 

including a statement of the factual, 

policy, and legal reasons for selecting 

the alternative adopted in the final rule 

and why each of the other significant 

alternatives to the rule considered by 

the agency were rejected. We address 

each requirement. 

1. A Succinct Statement of the Need for, 

and Objectives of, the Rule 

This final rule amends the FAA’s 

existing flight, duty and rest regulations 

applicable to certificate holders and 

their flightcrew members operating 

under 14 CFR Part 121. The rule 

recognizes the universality of factors 

that lead to fatigue in most individuals. 

Fatigue threatens aviation safety 

because it increases the risk of pilot 

error that could lead to an accident. The 

new requirements eliminate the current 

distinctions between domestic, flag and 

supplemental operations as they apply 

to passenger operations. The rule 

provides different requirements based 

on the time of day, whether an 

individual is acclimated to a new time 

zone, and the likelihood of being able to 

sleep under different circumstances. 

The objective of the proposed rule is to 

increase the margin of safety for 

passengers traveling on U.S. part 121 air 

carrier flights. Specifically, the FAA 

wants to decrease diminished flight 

crew performance associated with 

fatigue or lack of alertness brought on by 

the duty requirements for flightcrew 

members. 

2. A Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Summary of the 

Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made in the Proposed Rule as a Result 

of Such Comments 

NAA, NJASAP, Southern Air, Lynden 

Air Cargo, NACA and U.S. Chamber of 

Commerce stated that RFA of the 

proposed rule failed to address the full 

burden to be borne by small entities, 

such as nonscheduled air carriers, and 

that the FAA did not follow RFA 

requirements in addressing alternative 

means of compliance that would lessen 

the economic burden on small entities. 

Since the NPRM, the FAA has made 

substantial changes to the duty and rest 

requirements that will significantly 

reduce the cost to small entities. 

3. A Description and an Estimate of the 

Number of Small Entities to Which the 

Rule Will Apply or an Explanation of 

Why No Such Estimate Is Available 

The final rule applies to all certificate 

holders operating under part 121 who 

conduct passenger operations. There are 

67 such operators, of which 55 operators 

have fewer than 1,500 employees. 

4. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule, 

Including an Estimate of the Classes of 

Small Entities That Will Be Subject to 

the Requirement and the Types of 

Professional Skills Necessary for 

Preparation of the Report or Record 

As described in the Paperwork 

Reduction Analysis, there are additional 

compliance requirements for reporting 

and recordkeeping. 

5. A Description of the Steps the Agency 

Has Taken To Minimize the Significant 

Adverse Economic Impact on Small 

Entities Consistent With the Stated 

Objectives of Applicable Statutes, 

Including a Statement of the Factual, 

Policy, and Legal Reasons for Selecting 

the Alternative Adopted in the Final 

Rule and Why Each of the Other 

Significant Alternatives to the Rule 

Considered by the Agency was Rejected. 

Current crew schedules vary by 

operator, labor contract, and size of pilot 

pools. As such, the impact to small 

entity operators will vary. The agency 

understands that many smaller 

operators have maximized their pilot 

time in the cockpit and may have little 

flexibility with potential new flight and 

duty regulations and we have taken 

steps to minimize the economic impact 

on small entities. In response to several 

comments from small entities, the FAA 

has made significant changes from the 

proposal in this final rule which will 

minimize the economic impact on small 

entities. In addition, the FAA has 

largely removed schedule reliability 

from this rule. The FAA has instead 

adopted provisions that limit extensions 

of the FDP and requires reporting of 

FDP extensions and activities that were 

not otherwise permitted by the 

provisions of § 117.11, § 117.19 and 

§ 117.29 in the Final Rule. Under this 

amendment, costs to airline carriers are 

limited to reporting exceptional 

activities by sending electronic mails to 

the FAA. 

Alternative—Require Four Hours’ Midduty Rest To Work on Give 

Consecutive Nighttime FDPs 

This final rule reduces (to two hours) 

the amount of mid-duty rest necessary 

to work on five consecutive nighttime 

FDPs. The FAA rejected the higher midduty rest requirement proposed in the 

NPRM because of the potential negative 

impact on small businesses and the 

safety risks that are discussed in the 

pertinent part of the preamble. 

Alternative—Different Limitations on 

Supplemental Passenger Operations 

The FAA has considered imposing 

different limitations on small 

supplemental passenger operations but 

has rejected this alternative. The FAA 

has decided to impose the same FDP 

limits on passenger supplemental 

operations as other part 121 operations. 

While there are relatively few 

supplemental passenger operations, the 

FAA has determined that these pilots 

should be as rested as those in 

scheduled service since the numbers of 

passengers onboard the aircraft are 

similar to those on board an aircraft 

operating as a scheduled service. 

Furthermore, a significant number of 

these operations involve the transport of 

troops. The United States government 

believes these passengers should not be 

exposed to a level of risk different from 

if they were transported via a scheduled 

service operation. 

Alternative—Exclude/Exempt 

Supplemental Passenger Operations 

The FAA has also considered 

excluding supplemental passenger 

operations from this rule but rejected 

this alternative for the same reasons that 

it rejected the alternative of imposing 

different limitations on supplemental 

passenger operations. In addition, the 

FAA has noted that its decision to 

include supplemental operations in this 


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396 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

104As discussed in the International 

Compatibility section, there are no ‘‘international 

standards’’ to consider. 

105See EU Rules, Subpart Q, OPS 1.1100, section 

1.3 and OPS 1.1110, section 1.1. 

rule was not specifically targeted at 

small businesses because many large air 

carriers also have supplemental 

authority. 

Alternative—Require All-Cargo 

Operators To Comply With the 

Final Rule 

The FAA has also considered 

requiring all-cargo operators to comply 

with part 117. However, the FAA 

decided to make compliance with this 

part voluntary for all-cargo operations 

because their compliance costs 

significantly exceed the quantified 

safety benefits. 

C. International Trade Impact 

Assessment 

A number of industry commenters 

argued that finalizing the NPRM as 

written would undermine the ability of 

U.S. air carriers to compete with foreign 

air carriers. These commenters stated 

that 49 U.S.C. 40101(a)(15) and (e)(1) 

require the Secretary of Transportation 

to ensure that U.S. air carriers compete 

on equal terms with foreign carriers. 

The commenters then pointed out that 

this rule contains provisions, such as 

daily flight-time limits, that are not a 

part of analogous foreign regulations, 

and that these provisions hurt the 

international competitive position of 

U.S. air carriers who are subject to this 

rule. 

The industry commenters added that 

the imposition of daily flight-time 

limits, which are not contained in 

foreign aviation regulations, creates an 

unnecessary obstacle to the foreign 

commerce of the United States, and thus 

violates the Trade Agreements Act of 

1979 (TAA) (codified at 19 U.S.C. 

sections 2531–2533). The commenters 

also argued that by imposing daily 

flight-time limits, the FAA did not 

properly consider other international 

standards, and thus violated the TAA, 

OMB Circular A–119, and Executive 

Order 12866, all of which require the 

FAA to consider international 

standards. 

The Trade Agreements Act of 1979 

(Pub. L. 96–39), as amended by the 

Uruguay Round Agreements Act (Pub. 

L. 103–465), prohibits Federal agencies 

from establishing standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Pursuant to these Acts, the 

establishment of standards is not 

considered an unnecessary obstacle to 

the foreign commerce of the United 

States, so long as the standard has a 

legitimate domestic objective, such the 

protection of safety, and does not 

operate in a manner that excludes 

imports that meet this objective. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards.104 The FAA has 

assessed the potential effect of this final 

rule and determined that it would 

enhance safety and is not considered an 

unnecessary obstacle to trade. 

The flight-time limits in this rule do 

not undermine the international 

competitive position of U.S. air carriers. 

While this rule sets daily flight-time 

limits that many foreign aviation rules 

do not contain, the additional fatigue 

mitigation created by the daily flighttime limits permits the FAA to set less 

stringent requirements in other parts of 

this rule. For example, this rule only 

requires a 10-hour rest period between 

FDPs instead of the 12-hour rest period 

required by many foreign flight, duty, 

and rest regulations. This rule also 

permits 14-hour FDPs for periods of 

peak circadian alertness while some 

foreign regulations, such as EU Rules, 

Subpart Q, only permit FDPs that do not 

exceed 13 hours.105

As the above examples demonstrate, 

the imposition of daily flight-time limits 

is simply the result of a different 

conceptual approach that was utilized 

by the FAA. The FAA chose this 

approach because it has significant 

operational experience administering 

daily flight-time limits, and the FAA 

chose to employ this experience to 

better calibrate the specific provisions of 

this rule. This difference in approach 

does not undermine the competitive 

position of U.S. air carriers because the 

imposition of daily flight-time limits 

permitted the FAA to make other parts 

of this rule less stringent than the 

analogous provisions of foreign flight, 

duty, and rest regulations. 

D. Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in an 

expenditure of $100 million or more (in 

1995 dollars) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector; such 

a mandate is deemed to be a ‘‘significant 

regulatory action.’’ The FAA currently 

uses an inflation-adjusted value of 

$143.1 million in lieu of $100 million. 

This final rule does not contain such a 

mandate; therefore, the requirements of 

Title II do not apply. 

E. Paperwork Reduction Act 

The paperwork burden comprises of 

five areas, fatigue risk management 

system § 117.7, fatigue training § 117.9, 

flight time limitation § 117.11, and flight 

duty period extension reporting § 117.19 

and Emergency and government 

sponsored operations § 117.29. The 

following analyses were conducted 

under Paperwork Reduction Act of 1995 

(44 U.S.C. 3501). 

(1) PRA analysis for reporting fatigue 

risk management system (FRMS) 

§ 117.7 provision 

The final rule will allow each air 

carrier to develop a Fatigue Risk 

Management System (FRMS) if it 

wishes. FRMS is a voluntary program in 

the final rule. It will result in an annual 

recordkeeping and reporting burden if 

some of industry carriers eventually 

adopt the system so that they need to 

report the related activities to the FAA. 

Total FRMS annualized paperwork 

burden is determined by the numbers of 

FRMS to be developed and FRMS 

reporting cost per responders. FAA 

estimated that FRMS will incur the 

paperwork burden about $14,950 

annually, $149,500 nominal cost for 10 

years or $99,186 present value at 7%. 

FAA took steps to arrive the estimate as 

follows. 

a. Number of respondents (air 

carriers): the FAA estimated 

approximately 20 carriers or 

respondents; 

b. Estimated time of paperwork: about 

11.5 hours per air carrier and 230 hours 

in total for data collection, annual 

FRMS record-keeping and reporting 

required by the FAA; 

c. Average hourly wage rate of a 

FRMS information respondent (manager 

level): $65 per hour for reporting and 

analyzing FRMS data; 

d. FRMS paperwork hour estimation: 

total 230 hours (11.5 hours × 20 

estimated carriers); 

e. Total annualized cost of FRMS 

paperwork is about $14,950 ($1,253.50 × 

20) for the estimated 20 carriers. 

f. The nominal cost for 10-year is 

$149,500 or $99,186 present value at 

7%. 

(2) PRA analysis for fatigue training 

§ 117.9 provision 

The fatigue training requirement in 

the final rule will also result in an 

annual recordkeeping and reporting 

burden. Total fatigue training 

annualized paperwork burden costs are 

determined by the numbers of 

responders and fatigue training 

reporting cost per responders. FAA 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 397 

106Chapter 4 of ICAO 6, Amendment 33, section 

4.2.10.2 states the following: 

Fatigue management. An operator shall establish 

flight time and duty period limitations and a rest 

scheme that enable it to manage the fatigue of all 

its flight and cabin crew members. This scheme 

shall comply with the regulations established by the 

State of the Operator, or approved by that State and 

shall be included in the operations manual. 

This provision of ICAO is not inconsistent with 

this rule. Moreover, because the ICAO provision 

defers to the regulations promulgated by the State 

of the Operator, it does not even directly 

correspond to this rule. 

estimated that the fatigue training will 

incur the paperwork burden 

approximately 2,345 hours, $152,425 for 

the first year, $1.5 million nominal cost 

for 10 years or $1 million present value 

at 7%. FAA took steps to arrive the 

estimate as follows. 

a. Number of responders (dispatchers 

and managers): 67 operators; 

b. Estimated time needed for each 

responder: 35 hours, or 2,345 hours 

incurred by 67 responders; 

c. Average hourly wage rate of trainee: 

$65 per hour; 

d. Fatigue training paperwork cost: 

$152,425 per annum ($65 hourly wage 

rate × 2,345 hours); 

(3) PRA analysis for § 117.11, § 117.19 

and § 117.29 provisions 

The FAA combined the cost estimates 

in one PRA analysis for three provisions 

of the final rule (§ 117.11, § 117.19 and 

§ 117.29), since paperwork burdens for 

carriers to report activities that were not 

otherwise permitted by § 117.11, 

§ 117.19 and § 117.29 are the same. 

Reporting and recordkeeping by carriers 

can be done electronically by addressing 

the facts of events. Under the above 

provisions, carriers do not need to 

conduct complicated analyses, so that 

there will be no paperwork burden of 

analyses. In this analysis, the estimate of 

paperwork burden will be determined 

by the numbers of respondents, the 

frequencies of their reporting, hours 

required and the reporter’s wage rate. 

The FAA estimated the final annual 

paperwork burden for three provisions 

is $92,250, and $0.9 million for the 10- 

years nominal cost, or the present value 

of $0.6 million at 7%, by taking steps to 

arrive the estimate as follows. 

a. Number of respondents (air 

carriers): there are 67 carriers or 

respondents; 

b. Estimated frequencies for reporting 

requirements under each provision: 

Although a definitive frequency is 

unknown and will decrease as 

certificate holders adapt the changes, 

the FAA assumes an average of 6 times 

per year for each provision; 

c. Estimated total frequencies of 

annual responses: 18 times (6 × 3) per 

carrier and 1,206 times (67 × 18) by 67 

carriers for these three provisions of the 

final rule; 

d. Estimated time needed for each 

report for each occurrence: 30 minutes, 

one hundred percent of these responses 

will be collected electronically. The 

time needed for each carrier to report is 

about 9 hours (18 × 30 minutes), and 

603 hours in total by 67 carriers for 

these three provisions of the final rule; 

e. Estimated hourly wage rate of 

reporting staff: $65 per hour; 

f. The estimated total annual cost of 

reporting is about $39,195 (603 hours × 

$65); 

g. The nominal cost for 10-years is 

about $0.4 million or the present value 

of $0.24 million at 7%. 

Summarizing the above, the 

annualized cost is approximately 

$194,950 and the total nominal cost for 

10-years about $2.1 million ($0.15 

million + $1.5 million + $0.4 million) or 

the present value of approximately $1.3 

million at 7% ($0.1 + $1 million + $0.2 

million). The public reporting burden is 

estimated to be an average of 47 hours 

for each Part 121 certificate holder and 

3,178 hours, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. The total annual cost 

burden is approximately $204,950 in 

total for 67 carriers. There will be no 

additional annualized cost to the 

Federal Government, because FAA will 

not add additional staff or pay 

additional contractors for collecting, 

viewing and keeping electronic reportemails. 

F. International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

conform to International Civil Aviation 

Organization (ICAO) Standards and 

Recommended Practices to the 

maximum extent practicable. The FAA 

has determined that there are no ICAO 

Standards and Recommended Practices 

that directly correspond to these 

regulations.106

G. Environmental Analysis 

FAA Order 1050.1E identifies FAA 

actions that are categorically excluded 

from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

The FAA has determined this 

rulemaking action qualifies for the 

categorical exclusion identified in 

paragraph 312f and involves no 

extraordinary circumstances. 

V. Executive Order Determinations 

A. Executive Order 12866 and 13563 

See the ‘‘Regulatory Evaluation’’ 

discussion in the ‘‘Regulatory Notices 

and Analyses’’ section elsewhere in this 

preamble. 

B. Executive Order 13132, Federalism 

The FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. The 

agency determined that this action will 

not have a substantial direct effect on 

the States, or the relationship between 

the Federal Government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government, and, therefore, 

does not have Federalism implications. 

C. Executive Order 13211, Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use 

The FAA analyzed this final rule 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). The 

agency has determined that it is not a 

‘‘significant energy action’’ under the 

executive order and it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

VI. How To Obtain Additional 

Information 

A. Rulemaking Documents 

An electronic copy of a rulemaking 

document may be obtained by using the 

Internet— 

1. Search the Federal eRulemaking 

Portal (http://www.regulations.gov); 

2. Visit the FAA’s Regulations and 

Policies Web page at http:// 

www.faa.gov/regulations_policies/ or 

3. Access the Government Printing 

Office’s Web page at http:// 

www.gpoaccess.gov/fr/index.html. 

Copies may also be obtained by 

sending a request (identified by notice, 

amendment, or docket number of this 

rulemaking) to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue 

SW., Washington, DC 20591, or by 

calling (202) 267–9680. 

B. Comments Submitted to the Docket 

Comments received may be viewed by 

going to http://www.regulations.gov and 

following the online instructions to 

search the docket number for this 

action. Anyone is able to search the 

electronic form of all comments 

received into any of the FAA’s dockets 

by the name of the individual 

submitting the comment (or signing the 


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398 Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

C. Small Business Regulatory 

Enforcement Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires FAA to comply with 

small entity requests for information or 

advice about compliance with statutes 

and regulations within its jurisdiction. 

A small entity with questions regarding 

this document, may contact its local 

FAA official, or the person listed under 

the FOR FURTHER INFORMATION CONTACT

heading at the beginning of the 

preamble. To find out more about 

SBREFA on the Internet, visit http:// 

www.faa.gov/regulations_policies/ 

rulemaking/sbre_act/. 

List of Subjects 

14 CFR Part 117 

Airmen, Aviation safety, Reporting 

and recordkeeping requirements, Safety. 

14 CFR Part 119 

Air carriers, Aircraft, Aviation safety, 

Reporting and recordkeeping 

requirements. 

14 CFR Part 121 

Air carriers, Aircraft, Airmen, 

Aviation safety, Reporting and 

recordkeeping requirements, Safety. 

The Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends chapter I of title 14, Code of 

Federal Regulations as follows: 

■ 1. Part 117 is added to read as follows: 

PART 117—FLIGHT AND DUTY 

LIMITATIONS AND REST 

REQUIREMENTS: FLIGHTCREW 

MEMBERS 

Sec. 

117.1 Applicability. 

117.3 Definitions. 

117.5 Fitness for duty. 

117.7 Fatigue risk management system. 

117.9 Fatigue education and awareness 

training program. 

117.11 Flight time limitation. 

117.13 Flight duty period: Unaugmented 

operations. 

117.15 Flight duty period: Split duty. 

117.17 Flight duty period: Augmented 

flightcrew. 

117.19 Flight duty period extensions. 

117.21 Reserve status. 

117.23 Cumulative limitations. 

117.25 Rest period. 

117.27 Consecutive nighttime operations. 

117.29 Emergency and government 

sponsored operations. 

Table A to Part 117—Maximum Flight Time 

Limits for Unaugmented Operations 

Table B to Part 117—Flight Duty Period: 

Unaugmented Operations 

Table C to Part 117—Flight Duty Period: 

Augmented Operations 

Authority: 49 U.S.C. 106(g), 40113, 40119, 

44101, 44701–44702, 44705, 44709–44711, 

44713, 44716–44717, 44722, 46901, 44903– 

44904, 44912, 46105. 

§ 117.1 Applicability. 

(a) This part prescribes flight and duty 

limitations and rest requirements for all 

flightcrew members and certificate 

holders conducting passenger 

operations under part 121 of this 

chapter. 

(b) This part applies to all operations 

directed by part 121 certificate holders 

under part 91, other than subpart K, of 

this chapter if any segment is conducted 

as a domestic passenger, flag passenger, 

or supplemental passenger operation. 

(c) This part applies to all flightcrew 

members when participating in an 

operation under part 91, other than 

subpart K of this chapter, on behalf of 

the part 121 certificate holder if any 

flight segment is conducted as a 

domestic passenger, flag passenger, or 

supplemental passenger operation 

(d) Notwithstanding paragraphs (a), 

(b) and (c) of this section, a certificate 

holder may conduct under part 117 its 

part 121 operations pursuant to 121.470, 

121.480, or 121.500. 

§ 117.3 Definitions. 

In addition to the definitions in §§ 1.1 

and 110.2 of this chapter, the following 

definitions apply to this part. In the 

event there is a conflict in definitions, 

the definitions in this part control. 

Acclimated means a condition in 

which a flightcrew member has been in 

a theater for 72 hours or has been given 

at least 36 consecutive hours free from 

duty. 

Airport/standby reserve means a 

defined duty period during which a 

flightcrew member is required by a 

certificate holder to be at an airport for 

a possible assignment. 

Augmented flightcrew means a 

flightcrew that has more than the 

minimum number of flightcrew 

members required by the airplane type 

certificate to operate the aircraft to allow 

a flightcrew member to be replaced by 

another qualified flightcrew member for 

in-flight rest. 

Calendar day means a 24-hour period 

from 0000 through 2359 using 

Coordinated Universal Time or local 

time. 

Certificate holder means a person who 

holds or is required to hold an air 

carrier certificate or operating certificate 

issued under part 119 of this chapter. 

Deadhead transportation means 

transportation of a flightcrew member as 

a passenger or non-operating flightcrew 

member, by any mode of transportation, 

as required by a certificate holder, 

excluding transportation to or from a 

suitable accommodation. All time spent 

in deadhead transportation is duty and 

is not rest. For purposes of determining 

the maximum flight duty period in 

Table B of this part, deadhead 

transportation is not considered a flight 

segment. 

Duty means any task that a flightcrew 

member performs as required by the 

certificate holder, including but not 

limited to flight duty period, flight duty, 

pre- and post-flight duties, 

administrative work, training, deadhead 

transportation, aircraft positioning on 

the ground, aircraft loading, and aircraft 

servicing. 

Fatigue means a physiological state of 

reduced mental or physical performance 

capability resulting from lack of sleep or 

increased physical activity that can 

reduce a flightcrew member’s alertness 

and ability to safely operate an aircraft 

or perform safety-related duties. 

Fatigue risk management system 

(FRMS) means a management system for 

a certificate holder to use to mitigate the 

effects of fatigue in its particular 

operations. It is a data-driven process 

and a systematic method used to 

continuously monitor and manage 

safety risks associated with fatiguerelated error. 

Fit for duty means physiologically 

and mentally prepared and capable of 

performing assigned duties at the 

highest degree of safety. 

Flight duty period (FDP) means a 

period that begins when a flightcrew 

member is required to report for duty 

with the intention of conducting a 

flight, a series of flights, or positioning 

or ferrying flights, and ends when the 

aircraft is parked after the last flight and 

there is no intention for further aircraft 

movement by the same flightcrew 

member. A flight duty period includes 

the duties performed by the flightcrew 

member on behalf of the certificate 

holder that occur before a flight segment 

or between flight segments without a 

required intervening rest period. 

Examples of tasks that are part of the 

flight duty period include deadhead 

transportation, training conducted in an 

aircraft or flight simulator, and airport/ 

standby reserve, if the above tasks occur 

before a flight segment or between flight 

segments without an intervening 

required rest period: 

Home base means the location 

designated by a certificate holder where 

a flightcrew member normally begins 

and ends his or her duty periods. 

Lineholder means a flightcrew 

member who has an assigned flight duty 


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period and is not acting as a reserve 

flightcrew member. 

Long-call reserve means that, prior to 

beginning the rest period required by 

§ 117.25, the flightcrew member is 

notified by the certificate holder to 

report for a flight duty period following 

the completion of the rest period. 

Physiological night’s rest means 10 

hours of rest that encompasses the hours 

of 0100 and 0700 at the flightcrew 

member’s home base, unless the 

individual has acclimated to a different 

theater. If the flightcrew member has 

acclimated to a different theater, the rest 

must encompass the hours of 0100 and 

0700 at the acclimated location. 

Report time means the time that the 

certificate holder requires a flightcrew 

member to report for an assignment. 

Reserve availability period means a 

duty period during which a certificate 

holder requires a flightcrew member on 

short call reserve to be available to 

receive an assignment for a flight duty 

period. 

Reserve flightcrew member means a 

flightcrew member who a certificate 

holder requires to be available to receive 

an assignment for duty. 

Rest facility means a bunk or seat 

accommodation installed in an aircraft 

that provides a flightcrew member with 

a sleep opportunity. 

(1) Class 1 rest facility means a bunk 

or other surface that allows for a flat 

sleeping position and is located separate 

from both the flight deck and passenger 

cabin in an area that is temperaturecontrolled, allows the flightcrew 

member to control light, and provides 

isolation from noise and disturbance. 

(2) Class 2 rest facility means a seat 

in an aircraft cabin that allows for a flat 

or near flat sleeping position; is 

separated from passengers by a 

minimum of a curtain to provide 

darkness and some sound mitigation; 

and is reasonably free from disturbance 

by passengers or flightcrew members. 

(3) Class 3 rest facility means a seat 

in an aircraft cabin or flight deck that 

reclines at least 40 degrees and provides 

leg and foot support. 

Rest period means a continuous 

period determined prospectively during 

which the flightcrew member is free 

from all restraint by the certificate 

holder, including freedom from present 

responsibility for work should the 

occasion arise. 

Scheduled means to appoint, assign, 

or designate for a fixed time. 

Short-call reserve means a period of 

time in which a flightcrew member is 

assigned to a reserve availability period. 

Split duty means a flight duty period 

that has a scheduled break in duty that 

is less than a required rest period. 

Suitable accommodation means a 

temperature-controlled facility with 

sound mitigation and the ability to 

control light that provides a flightcrew 

member with the ability to sleep either 

in a bed, bunk or in a chair that allows 

for flat or near flat sleeping position. 

Suitable accommodation only applies to 

ground facilities and does not apply to 

aircraft onboard rest facilities. 

Theater means a geographical area 

where local time at the flightcrew 

member’s flight duty period departure 

point and arrival point differ by more 

than 60 degrees longitude. 

Unforeseen operational circumstance 

means an unplanned event of 

insufficient duration to allow for 

adjustments to schedules, including 

unforecast weather, equipment 

malfunction, or air traffic delay that is 

not reasonably expected. 

Window of circadian low means a 

period of maximum sleepiness that 

occurs between 0200 and 0559 during a 

physiological night. 

§ 117.5 Fitness for duty. 

(a) Each flightcrew member must 

report for any flight duty period rested 

and prepared to perform his or her 

assigned duties. 

(b) No certificate holder may assign 

and no flightcrew member may accept 

assignment to a flight duty period if the 

flightcrew member has reported for a 

flight duty period too fatigued to safely 

perform his or her assigned duties. 

(c) No certificate holder may permit a 

flightcrew member to continue a flight 

duty period if the flightcrew member 

has reported him or herself too fatigued 

to continue the assigned flight duty 

period. 

(d) As part of the dispatch or flight 

release, as applicable, each flightcrew 

member must affirmatively state he or 

she is fit for duty prior to commencing 

flight. 

§ 117.7 Fatigue risk management system. 

(a) No certificate holder may exceed 

any provision of this part unless 

approved by the FAA under a Fatigue 

Risk Management System that provides 

at least an equivalent level of safety 

against fatigue-related accidents or 

incidents as the other provisions of this 

part. 

(b) The Fatigue Risk Management 

System must include: 

(1) A fatigue risk management policy. 

(2) An education and awareness 

training program. 

(3) A fatigue reporting system. 

(4) A system for monitoring flightcrew 

fatigue. 

(5) An incident reporting process. 

(6) A performance evaluation. 

§ 117.9 Fatigue education and awareness 

training program. 

(a) Each certificate holder must 

develop and implement an education 

and awareness training program, 

approved by the Administrator. This 

program must provide annual education 

and awareness training to all employees 

of the certificate holder responsible for 

administering the provisions of this rule 

including flightcrew members, 

dispatchers, individuals directly 

involved in the scheduling of flightcrew 

members, individuals directly involved 

in operational control, and any 

employee providing direct management 

oversight of those areas. 

(b) The fatigue education and 

awareness training program must be 

designed to increase awareness of: 

(1) Fatigue; 

(2) The effects of fatigue on pilots; and 

(3) Fatigue countermeasures 

(c) (1) Each certificate holder must 

update its fatigue education and 

awareness training program every two 

years and submit the update to the 

Administrator for review and 

acceptance. 

(2) Not later than 12 months after the 

date of submission of the fatigue 

education and awareness training 

program required by (c)(1) of this 

section, the Administrator shall review 

and accept or reject the update. If the 

Administrator rejects an update, the 

Administrator shall provide suggested 

modifications for resubmission of the 

update. 

§ 117.11 Flight time limitation. 

(a) No certificate holder may schedule 

and no flightcrew member may accept 

an assignment or continue an assigned 

flight duty period if the total flight time: 

(1) Will exceed the limits specified in 

Table A of this part if the operation is 

conducted with the minimum required 

flightcrew. 

(2) Will exceed 13 hours if the 

operation is conducted with a 3-pilot 

flightcrew. 

(3) Will exceed 17 hours if the 

operation is conducted with a 4-pilot 

flightcrew. 

(b) If unforeseen operational 

circumstances arise after takeoff that are 

beyond the certificate holder’s control, a 

flightcrew member may exceed the 

maximum flight time specified in 

paragraph (a) of this section and the 

cumulative flight time limits in 

117.23(b) to the extent necessary to 

safely land the aircraft at the next 

destination airport or alternate, as 

appropriate. 

(c) Each certificate holder must report 

to the Administrator within 10 days any 

flight time that exceeded the maximum 


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flight time limits permitted by this 

section. The report must contain the 

following: 

(1) A description of the extended 

flight time limitation and the 

circumstances surrounding the need for 

the extension; and 

(2) If the circumstances giving rise to 

the extension were within the certificate 

holder’s control, the corrective action(s) 

that the certificate holder intends to take 

to minimize the need for future 

extensions. 

(d) Each certificate holder must 

implement the corrective action(s) 

reported in paragraph (c)(2) of this 

section within 30 days from the date of 

the extended flight time limitation. 

§ 117.13 Flight duty period: Unaugmented 

operations. 

(a) Except as provided for in § 117.15, 

no certificate holder may assign and no 

flightcrew member may accept an 

assignment for an unaugmented flight 

operation if the scheduled flight duty 

period will exceed the limits in Table B 

of this part. 

(b) If the flightcrew member is not 

acclimated: 

(1) The maximum flight duty period 

in Table B of this part is reduced by 30 

minutes. 

(2) The applicable flight duty period 

is based on the local time at the theater 

in which the flightcrew member was 

last acclimated. 

§ 117.15 Flight duty period: Split duty. 

For an unaugmented operation only, 

if a flightcrew member is provided with 

a rest opportunity (an opportunity to 

sleep) in a suitable accommodation 

during his or her flight duty period, the 

time that the flightcrew member spends 

in the suitable accommodation is not 

part of that flightcrew member’s flight 

duty period if all of the following 

conditions are met: 

(a) The rest opportunity is provided 

between the hours of 22:00 and 05:00 

local time. 

(b) The time spent in the suitable 

accommodation is at least 3 hours, 

measured from the time that the 

flightcrew member reaches the suitable 

accommodation. 

(c) The rest opportunity is scheduled 

before the beginning of the flight duty 

period in which that rest opportunity is 

taken. 

(d) The rest opportunity that the 

flightcrew member is actually provided 

may not be less than the rest 

opportunity that was scheduled. 

(e) The rest opportunity is not 

provided until the first segment of the 

flight duty period has been completed. 

(f) The combined time of the flight 

duty period and the rest opportunity 

provided in this section does not exceed 

14 hours. 

§ 117.17 Flight duty period: Augmented 

flightcrew. 

(a) For flight operations conducted 

with an acclimated augmented 

flightcrew, no certificate holder may 

assign and no flightcrew member may 

accept an assignment if the scheduled 

flight duty period will exceed the limits 

specified in Table C of this part. 

(b) If the flightcrew member is not 

acclimated: 

(1) The maximum flight duty period 

in Table C of this part is reduced by 30 

minutes. 

(2) The applicable flight duty period 

is based on the local time at the theater 

in which the flightcrew member was 

last acclimated. 

(c) No certificate holder may assign 

and no flightcrew member may accept 

an assignment under this section unless 

during the flight duty period: 

(1) Two consecutive hours in the 

second half of the flight duty period are 

available for in-flight rest for the pilot 

flying the aircraft during landing. 

(2) Ninety consecutive minutes are 

available for in-flight rest for the pilot 

performing monitoring duties during 

landing. 

(d) No certificate holder may assign 

and no flightcrew member may accept 

an assignment involving more than 

three flight segments under this section. 

(e) At all times during flight, at least 

one flightcrew member qualified in 

accordance with § 121.543(b)(3)(i) of 

this chapter must be at the flight 

controls. 

§ 117.19 Flight duty period extensions. 

(a) For augmented and unaugmented 

operations, if unforeseen operational 

circumstances arise prior to takeoff: 

(1) The pilot in command and the 

certificate holder may extend the 

maximum flight duty period permitted 

in Tables B or C of this part up to 2 

hours. 

(2) An extension in the flight duty 

period under paragraph (a)(1) of this 

section of more than 30 minutes may 

occur only once prior to receiving a rest 

period described in § 117.25(b). 

(3) A flight duty period cannot be 

extended under paragraph (a)(1) of this 

section if it causes a flightcrew member 

to exceed the cumulative flight duty 

period limits specified in 117.23(c). 

(4) Each certificate holder must report 

to the Administrator within 10 days any 

flight duty period that exceeded the 

maximum flight duty period permitted 

in Tables B or C of this part by more 

than 30 minutes. The report must 

contain the following: 

(i) A description of the extended flight 

duty period and the circumstances 

surrounding the need for the extension; 

and 

(ii) If the circumstances giving rise to 

the extension were within the certificate 

holder’s control, the corrective action(s) 

that the certificate holder intends to take 

to minimize the need for future 

extensions. 

(5) Each certificate holder must 

implement the corrective action(s) 

reported in paragraph (a)(4) of this 

section within 30 days from the date of 

the extended flight duty period. 

(b) For augmented and unaugmented 

operations, if unforeseen operational 

circumstances arise after takeoff: 

(1) The pilot in command and the 

certificate holder may extend maximum 

flight duty periods specified in Tables B 

or C of this part to the extent necessary 

to safely land the aircraft at the next 

destination airport or alternate airport, 

as appropriate. 

(2) An extension of the flight duty 

period under paragraph (b)(1) of this 

section of more than 30 minutes may 

occur only once prior to receiving a rest 

period described in § 117.25(b). 

(3) An extension taken under 

paragraph (b) of this section may exceed 

the cumulative flight duty period limits 

specified in 117.23(c). 

(4) Each certificate holder must report 

to the Administrator within 10 days any 

flight duty period that exceeded the 

maximum flight duty period limits 

permitted by Tables B or C of this part. 

The report must contain a description of 

the circumstances surrounding the 

affected flight duty period. 

§ 117.21 Reserve status. 

(a) Unless specifically designated as 

airport/standby or short-call reserve by 

the certificate holder, all reserve is 

considered long-call reserve. 

(b) Any reserve that meets the 

definition of airport/standby reserve 

must be designated as airport/standby 

reserve. For airport/standby reserve, all 

time spent in a reserve status is part of 

the flightcrew member’s flight duty 

period. 

(c) For short call reserve, 

(1) The reserve availability period 

may not exceed 14 hours. 

(2) For a flightcrew member who has 

completed a reserve availability period, 

no certificate holder may schedule and 

no flightcrew member may accept an 

assignment of a reserve availability 

period unless the flightcrew member 

receives the required rest in § 117.25(e). 

(3) For an unaugmented operation, the 

total number of hours a flightcrew 

member may spend in a flight duty 

period and a reserve availability period 


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Federal Register / Vol. 77, No. 2 / Wednesday, January 4, 2012 / Rules and Regulations 401 

may not exceed the lesser of the 

maximum applicable flight duty period 

in Table B of this part plus 4 hours, or 

16 hours, as measured from the 

beginning of the reserve availability 

period. 

(4) For an augmented operation, the 

total number of hours a flightcrew 

member may spend in a flight duty 

period and a reserve availability period 

may not exceed the flight duty period in 

Table C of this part plus 4 hours, as 

measured from the beginning of the 

reserve availability period. 

(d) For long call reserve, if a 

certificate holder contacts a flightcrew 

member to assign him or her to a flight 

duty period that will begin before and 

operate into the flightcrew member’s 

window of circadian low, the flightcrew 

member must receive a 12 hour notice 

of report time from the certificate 

holder. 

(e) A certificate holder may shift a 

reserve flightcrew member’s reserve 

status from long-call to short-call only if 

the flightcrew member receives a rest 

period as provided in § 117.25(e). 

§ 117.23 Cumulative limitations. 

(a) The limitations of this section 

include all flying by flightcrew members 

on behalf of any certificate holder or 

91K Program Manager during the 

applicable periods. 

(b) No certificate holder may schedule 

and no flightcrew member may accept 

an assignment if the flightcrew 

member’s total flight time will exceed 

the following: 

(1) 100 hours in any 672 consecutive 

hours and 

(2) 1,000 hours in any 365 

consecutive calendar day period. 

(c) No certificate holder may schedule 

and no flightcrew member may accept 

an assignment if the flightcrew 

member’s total Flight Duty Period will 

exceed: 

(1) 60 flight duty period hours in any 

168 consecutive hours and 

(2) 190 flight duty period hours in any 

672 consecutive hours. 

§ 117.25 Rest period. 

(a) No certificate holder may assign 

and no flightcrew member may accept 

assignment to any reserve or duty with 

the certificate holder during any 

required rest period. 

(b) Before beginning any reserve or 

flight duty period a flightcrew member 

must be given at least 30 consecutive 

hours free from all duty in any 168 

consecutive hour period. 

(c) If a flightcrew member operating in 

a new theater has received 36 

consecutive hours of rest, that 

flightcrew member is acclimated and 

the rest period meets the requirements 

of paragraph (b) of this section. 

(d) If a flightcrew member travels 

more than 60° longitude during a flight 

duty period or a series of flight duty 

periods that require him or her to be 

away from home base for more than 168 

consecutive hours, the flightcrew 

member must be given a minimum of 56 

consecutive hours rest upon return to 

home base. This rest must encompass 

three physiological nights’ rest based on 

local time. 

(e) No certificate holder may schedule 

and no flightcrew member may accept 

an assignment for any reserve or flight 

duty period unless the flightcrew 

member is given a rest period of at least 

10 consecutive hours immediately 

before beginning the reserve or flight 

duty period measured from the time the 

flightcrew member is released from 

duty. The 10 hour rest period must 

provide the flightcrew member with a 

minimum of 8 uninterrupted hours of 

sleep opportunity. 

(f) If a flightcrew member determines 

that a rest period under paragraph (e) of 

this section will not provide eight 

uninterrupted hours of sleep 

opportunity, the flightcrew member 

must notify the certificate holder. The 

flightcrew member cannot report for the 

assigned flight duty period until he or 

she receives a rest period specified in 

paragraph (e) of this section. 

(g) If a flightcrew member engaged in 

deadhead transportation exceeds the 

applicable flight duty period in Table B 

of this part, the flightcrew member must 

be given a rest period equal to the length 

of the deadhead transportation but not 

less than the required rest in paragraph 

(e) of this section before beginning a 

flight duty period. 

§ 117.27 Consecutive nighttime 

operations. 

A certificate holder may schedule and 

a flightcrew member may accept up to 

five consecutive flight duty periods that 

infringe on the window of circadian low 

if the certificate holder provides the 

flightcrew member with an opportunity 

to rest in a suitable accommodation 

during each of the consecutive 

nighttime flight duty periods. The rest 

opportunity must be at least 2 hours, 

measured from the time that the 

flightcrew member reaches the suitable 

accommodation, and must comply with 

the conditions specified in § 117.15(a), 

(c), (d), and (e). Otherwise, no certificate 

holder may schedule and no flightcrew 

member may accept more than three 

consecutive flight duty periods that 

infringe on the window of circadian 

low. For purposes of this section, any 

split duty rest that is provided in 

accordance with § 117.15 counts as part 

of a flight duty period. 

§ 117.29 Emergency and government 

sponsored operations. 

(a) This section applies to operations 

conducted pursuant to contracts with 

the U.S. Government and operations 

conducted pursuant to a deviation 

under § 119.57 of this chapter that 

cannot otherwise be conducted under 

this part because of circumstances that 

could prevent flightcrew members from 

being relieved by another crew or safely 

provided with the rest required under 

§ 117.25 at the end of the applicable 

flight duty period. 

(b) The pilot-in-command may 

determine that maximum applicable 

flight duty periods must be exceeded to 

the extent necessary to allow the 

flightcrew to fly to the closest 

destination where they can safely be 

relieved from duty by another flightcrew 

or can receive the requisite amount of 

rest prior to commencing their next 

flight duty period. 

(c) A flight duty period may not be 

extended for an operation conducted 

pursuant to a contract with the U.S. 

Government if it causes a flightcrew 

member to exceed the cumulative flight 

time limits in § 117.23(b) and the 

cumulative flight duty period limits in 

§ 117.23(c). 

(d) The flightcrew shall be given a rest 

period immediately after reaching the 

destination described in paragraph (b) of 

this section equal to the length of the 

actual flight duty period or 24 hours, 

whichever is less. 

(e) Each certificate holder must report 

within 10 days: 

(1) Any flight duty period that 

exceeded the maximum flight duty 

period permitted in Tables B or C of this 

part, as applicable, by more than 30 

minutes; and 

(2) Any flight time that exceeded the 

maximum flight time limits permitted in 

Table A of this part and § 117.11, as 

applicable. 

(f) The report must contain the 

following: 

(1) A description of the extended 

flight duty period and flight time 

limitation, and the circumstances 

surrounding the need for the extension; 

and 

(2) If the circumstances giving rise to 

the extension(s) were within the 

certificate holder’s control, the 

corrective action(s) that the certificate 

holder intends to take to minimize the 

need for future extensions. 

(g) Each certificate holder must 

implement the corrective action(s) 

reported pursuant to paragraph (e)(2) of 


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this section within 30 days from the 

date of the extended flight duty period. 

TABLE A TO PART 117—MAXIMUM

FLIGHT TIME LIMITS FOR UNAUGMENTED OPERATIONS TABLE

Time of report 

(acclimated) 

Maximum 

flight time 

(hours) 

0000–0459 .............................. 8 

0500–1959 .............................. 9 

TABLE A TO PART 117—MAXIMUM

FLIGHT TIME LIMITS FOR UNAUGMENTED OPERATIONS TABLE—Continued 

Time of report 

(acclimated) 

Maximum 

flight time 

(hours) 

2000–2359 .............................. 8 

TABLE B TO PART 117—FLIGHT DUTY PERIOD: UNAUGMENTED OPERATIONS

Scheduled time of start (acclimated time) 

Maximum flight duty period (hours) for lineholders based on 

number of flight segments 

1 2 3 4 5 6 7+ 

0000–0359 ....................................................................................................... 9 9 9 9 9 9 9 

0400–0459 ....................................................................................................... 10 10 10 10 9 9 9 

0500–0559 ....................................................................................................... 12 12 12 12 11.5 11 10.5 

0600–0659 ....................................................................................................... 13 13 12 12 11.5 11 10.5 

0700–1159 ....................................................................................................... 14 14 13 13 12.5 12 11.5 

1200–1259 ....................................................................................................... 13 13 13 13 12.5 12 11.5 

1300–1659 ....................................................................................................... 12 12 12 12 11.5 11 10.5 

1700–2159 ....................................................................................................... 12 12 11 11 10 9 9 

2200–2259 ....................................................................................................... 11 11 10 10 9 9 9 

2300–2359 ....................................................................................................... 10 10 10 9 9 9 9 

TABLE C TO PART 117—FLIGHT DUTY PERIOD: AUGMENTED OPERATIONS

Scheduled time of start (acclimated time) 

Maximum flight duty period (hours) based on rest facility and 

number of pilots 

Class 1 

rest facility 

Class 2 

rest facility 

Class 3 

rest facility 

3 pilots 4 pilots 3 pilots 4 pilots 3 pilots 4 pilots 

0000–0559 ............................................................................................... 15 17 14 15.5 13 13.5 

0600–0659 ............................................................................................... 16 18.5 15 16.5 14 14.5

0700–1259 ............................................................................................... 17 19 16.5 18 15 15.5 

1300–1659 ............................................................................................... 16 18.5 15 16.5 14 14.5

1700–2359 ............................................................................................... 15 17 14 15.5 13 13.5 

PART 119—CERTIFICATION: AIR 

CARRIERS AND COMMERCIAL 

OPERATORS 

■ 2. The authority citation for part 119 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 1153, 40101, 

40102, 40103, 40113, 44105, 44106, 44111, 

44701–44717, 44722, 44901, 44903, 44904, 

44906, 44912, 44914, 44936, 44938, 46103, 

46105. 

■ 3. In § 119.55, revise paragraph (a) to 

read as follows: 

§ 119.55 Obtaining deviation authority to 

perform operations under a U.S. military 

contract. 

(a) The Administrator may authorize 

a certificate holder that is authorized to 

conduct supplemental or on-demand 

operations to deviate from the 

applicable requirements of this part, 

part 117, part 121, or part 135 of this 

chapter in order to perform operations 

under a U.S. military contract. 

* * * * * 

PART 121—OPERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS 

■ 4. The authority section for part 121 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 40119, 

44101, 44701–44702, 44705, 44709–44711, 

44713, 44716–44717, 44722, 46901, 44903– 

44904, 44912, 46105. 

■ 5. In § 121.467, revise paragraphs (c) 

introductory text and (c) (1) to read as 

follows: 

§ 121.467 Flight attendant duty period 

limitations and rest requirements: 

Domestic, flag, and supplemental 

operations. 

* * * * * 

(c) Notwithstanding paragraph (b) of 

this section, a certificate holder 

conducting domestic, flag, or 

supplemental operations may apply the 

flightcrew member flight time and duty 

limitations and requirements of part 117 

of this chapter to flight attendants for all 

operations conducted under this part 

provided that— 

(1) The flightcrew is subject to part 

117; 

* * * * * 

Subpart Q [Amended] 

■ 6. Revise § 121.470 to read as follows: 

§ 121.470 Applicability. 

This subpart prescribes flight time 

limitations and rest requirements for 

domestic all-cargo operations, except 

that: 

(a) Certificate holders conducting 

operations with airplanes having a 

passenger seat configuration of 30 seats 

or fewer, excluding each crewmember 

seat, and a payload capacity of 7,500 

pounds or less, may comply with the 


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applicable requirements of §§ 135.261 

through 135.273 of this chapter. 

(b) Certificate holders conducting 

scheduled operations entirely within 

the States of Alaska or Hawaii with 

airplanes having a passenger seat 

configuration of 30 seats or fewer, 

excluding each crewmember seat, and a 

payload capacity of 7,500 pounds or 

less, may comply with the applicable 

requirements of subpart R of this part 

for those operations. 

(c) A certificate holder may apply the 

flightcrew member flight time and duty 

limitations and requirements of part 117 

of this chapter. A certificate holder may 

choose to apply part 117 to its— 

(1) Cargo operations conducted under 

contract to a U.S. government agency. 

(2) All-cargo operations not 

conducted under contract to a U.S. 

Government agency, 

(3) A certificate holder may elect to 

treat operations in paragraphs (c)(1) and 

(c)(2) of this section differently but, 

once having decided to conduct those 

operations under part 117, may not 

segregate those operations between this 

subpart and part 117. 

■ 7. Add § 121.473 to read as follows: 

§ 121.473 Fatigue risk management 

system. 

(a) No certificate holder may exceed 

any provision of this subpart unless 

approved by the FAA under a Fatigue 

Risk Management System. 

(b) The Fatigue Risk Management 

System must include: 

(1) A fatigue risk management policy. 

(2) An education and awareness 

training program. 

(3) A fatigue reporting system. 

(4) A system for monitoring flightcrew 

fatigue. 

(5) An incident reporting process. 

(6) A performance evaluation. 

Subpart R—[Amended] 

■ 8. Revise § 121.480 to read as follows: 

§ 121.480 Applicability. 

This subpart prescribes flight time 

limitations and rest requirements for 

flag all-cargo operations, except that: 

(a) Certificate holders conducting 

operations with airplanes having a 

passenger seat configuration of 30 seats 

or fewer, excluding each crewmember 

seat, and a payload capacity of 7,500 

pounds or less, may comply with the 

applicable requirements of §§ 135.261 

through 135.273 of this chapter. 

(b) A certificate holder may apply the 

flightcrew member flight time and duty 

limitations and requirements of part 117 

of this chapter. A certificate holder may 

choose to apply part 117 to its— 

(1) All-cargo operations conducted 

under contract to a U.S. government 

agency. 

(2) All-cargo operations not 

conducted under contract to a U.S. 

Government agency, 

(3) A certificate holder may elect to 

treat operations in paragraphs (b)(1) and 

(b) (2) of this section differently but, 

once having decided to conduct those 

operations under part 117, may not 

segregate those operations between this 

subpart and part 117. 

■ 9. Add § 121.495 to read as follows: 

§ 121.495 Fatigue risk management 

system. 

(a) No certificate holder may exceed 

any provision of this subpart unless 

approved by the FAA under a Fatigue 

Risk Management System. 

(b) The Fatigue Risk Management 

System must include: 

(1) A fatigue risk management policy. 

(2) An education and awareness 

training program. 

(3) A fatigue reporting system. 

(4) A system for monitoring flightcrew 

fatigue. 

(5) An incident reporting process. 

(6) A performance evaluation. 

Subpart S—[Amended] 

■ 10. Revise § 121.500, to read as 

follows: 

§ 121.500 Applicability. 

This subpart prescribes flight time 

limitations and rest requirements for 

supplemental all-cargo operations, 

except that: 

(a) Certificate holders conducting 

operations with airplanes having a 

passenger seat configuration of 30 seats 

or fewer, excluding each crewmember 

seat, and a payload capacity of 7,500 

pound or less, may comply with the 

applicable requirements of §§ 135.261 

through 135.273 of this chapter. 

(b) A certificate holder may apply the 

flightcrew member flight time and duty 

limitations and requirements of part 117 

of this chapter. A certificate holder may 

choose to apply part 117 to its— 

(1) All-cargo operations conducted 

under contract to a U.S. Government 

agency. 

(2) All-cargo operations not 

conducted under contract to a U.S. 

Government agency, 

(3) A certificate holder may elect to 

treat operations in paragraphs (b)(1) and 

(b)(2) of this section differently but, 

once having decided to conduct those 

operations under part 117, may not 

segregate those operations between this 

subpart and part 117. 

■ 11. Add § 121.527 to read as follows: 

§ 121.527 Fatigue risk management 

system. 

(a) No certificate holder may exceed 

any provision of this subpart unless 

approved by the FAA under a Fatigue 

Risk Management System. 

(b) The Fatigue Risk Management 

System must include: 

(1) A fatigue risk management policy. 

(2) An education and awareness 

training program. 

(3) A fatigue reporting system. 

(4) A system for monitoring flightcrew 

fatigue. 

(5) An incident reporting process. 

(6) A performance evaluation. 

12. In § 121.583, revise paragraph (a) 

introductory text to read as follows: 

§ 121.583—Carriage of persons without 

compliance with the passenger-carrying 

requirements of this part and part 117. 

(a) When authorized by the certificate 

holder, the following persons, but no 

others, may be carried aboard an 

airplane without complying with the 

passenger-carrying airplane 

requirements in §§ 121.309(f), 121.310, 

121.391, 121.571, and 121.587; the 

passenger-carrying operation 

requirements in part 117 and 

§§ 121.157(c) and 121.291; and the 

requirements pertaining to passengers in 

§§ 121.285, 121.313(f), 121.317, 121.547, 

and 121.573: 

* * * * * 

Issued in Washington, DC, on December 

21, 2011. 

Michael P. Huerta, 

Acting Administrator. 

[FR Doc. 2011–33078 Filed 12–23–11; 4:15 pm] 

BILLING CODE P 


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