800 Independence Ave., S.W. Washington, DC 20591

July 24, 2013

Mr. Dan Elwell

Senior Vice President

, Safety, Security and Operations

Airlines for America 1301 Pennsylvania Ave., NW

Suite 1100 Washington, DC 20004

Dear Mr. Elwell :

In a June 28, 2012 letter, Airlines for America (A4A), petitioned the Federal Aviation Administration (FAA) to amend part 117 of Title 14, Code of Federal Regulations (14 CFR). In its petition, A4A asked the FAA to add a 45

- minute extension to the flight

- time limits specified in 14 CFR § 117.11. For the reasons discussed b elow, the FAA has

decided to deny A4A’s petition

.

I. Background

A4A’s petition, which is dated June 28, 2012, deals with the final flight, duty, and rest rule that the FAA issued on January 4, 2012. 1 This rule, which does not go into effect

until Januar y 4, 2014, 2 limits flightcrew

- member fatigue in passenger aviation operations by regulating the length of flight time, flight duty periods (FDPs), and rest periods provided to flightcrew members conducting those operations. The pertinent requirements

are codified in 14 CFR part 117. Under part 117 , a pilot on an unaugmented operation may be scheduled up to 9 hours of daily flight time provided the pilot’s time of report falls between the hours of 0500 and 1959. Otherwise, the pilot is limited to 8 hours of daily flight time. These flight

- time limits cannot be extended for unforeseen

circumstances that are known before takeoff. 3

Part 117 also permits a certificate holder , subject to FAA approval, to implement a Fatigue Risk Management System (FRMS) tha t would allow the certificate holder to

deviate from the other requirements of part 117 . In order to utilize this provision, the

certificate holder would have to show, among other things, that the FRMS would provide “an equivalent level of safety against fatigue

- related accidents or incidents as the other provisions of [part 117].” 4

1 77 FR 330.

2 See 77 FR 28763 (May 16, 2012).

3 77 FR at 363.

4 § 117.7(a).2 2

II. Discussion

A. Scientific Evidence and Information Obtained During the Rulemaking

As stated above, A4A’s petition asks the FAA to initiate a rulemaking to add a 45

- minute

ext ension to the daily flight

- time limits specified in part 117. If implemented, t his

extension would permit flightcrew members working on unaugmented operations to accumulate 9 hours and 45 minutes of flight time if their FDP begins during the peak

circadia n time period specified in part 117. However, the FAA has already considered imposing a similar daily flight

- time limit, as part of the flight, duty, and rest rulemaking, and ultimately rejected that approach in the final rule

.

A s A4A ’s petition points out, when the FAA issued the notice of proposed rulemaking (NPRM) for the flight, duty, and rest rule, the FAA proposed a flight

- time limit of 10

hours for unaugmented flights that have a report time during peak circadian times. 5 This proposed flight

- time limit was only 15 minutes longer than the 9 hours and 45 minutes of flight time that would be permitted if A4A’s proposal is implemented.

In response to its 10

- hour flight

- time proposal, the FAA received over 1,300 individual comments, many of them fro m pilots with firsthand fatigue experience, stating that flying for 10 hours would lead to unsafe levels of fatigue. 6 In addition to the concerns raised by the commenters, the FAA also considered studies sho wing that fatigue risk increases after

8 or 9 ho urs of work. Specifically, the FAA cited to a series of studies by Simon Folkard and Phillip Tucker , which examined the national accident rate and showed that 10 hours spent at work resulted in a significantly higher risk of an accident than 8 or 9 hours spent
at work. 7 The FAA also cited to two aviation

- specific studies which showed that pilots who spent at least 10 hours on duty disproportionately contributed to the number of

accidents. 8 As a result of the data provided by these studies and the consid erations raised by the comments, the FAA ultimately reduced , in the final rule, the proposed 10

- hour flight

- time limit to 9 hours for peak circadian times. 9 Th is final peak

- circadian

- flight

time limit of 9 hours still constituted a 1

- hour increase from th e 8

- hour daily flight

- time

limit that was imposed by the then

- existing regulations

.

A4A’s petition takes issue with the FAA ’s reliance on the Folkard & Tucker study . First, A4A argues that the primary purpose of the Folkard & Tucker study was to examine industrial employee shift work and not the impact of accident risk over hours on duty. While this is true, this does not change the fact that the stud y did in fact examine accident risk over hours on duty.

5 75 FR 55852, 55863 (Sep. 14, 2010).

6 See 77 FR at 362 (summarizing comments).

7 Id. (citing Simon Folkard & Philip Tucker, Shift work,safety and productivity , Occupational Medicine, Feb. 1, 2003, at 98).

8 Id. (citing Jeffrey H. Go ode, Are pilots at risk of accidents due to fatigue? , Journal of Safety Research, 34, at 311 (2003); John A. Caldwell, Fatigue in aviation ,Travel Medicine and Infectious Disease, 3, at 90 (2005)).

9 Id.3 3 Next A4A argues that the Folkard & Tucker study used national accident trends in professions that did not include aviation and that aviation is different because it is heavily regulated and has a number of redundant safety mechanisms. However, the FAA is unpersuaded by this argument. As an initial ma tter, the FAA is unaware of any data showing that flightcrew members become fatigued at a slower rate than the rest of the general population. To the contrary, the two aviation

- specific studies that the FAA cited in its flight

- time discussion in the final rule both show that pilots who are at work for 10 hours or more disproportionately contribute to the accident rate. Turning to the Folkard

& Tucker stud y , th at stud y and one referenced (Nachreiner, et. al) used different statistical techniques, such as m eta

- analysis and convergent validation analysis, to analyze published peer

- reviewed studies of accident risk. Convergent analysis determines whether the reported trends are consistent and reliable and regarded as generalizable

trends for the risk of an acc ident as a function of time into work, regardless of the work force or actual task performed

. Because the Folkard & Tucker study applied meta

analysis to a number of peer

- reviewed studie s of accident risk, the Folkard & Tucker study had a very large samp le from which to draw its conclusion. The conclusion itself is persuasive because the results of all the studies that the Folkard & Tucker study analyzed

were c onsistent and indicated the same trend, that is, as the work period increases,

accident risk al so increases and the function becomes exponential at around the time

frames that the A4A petition recommends exceeding

.

In response to A4A’s specific concerns, the FAA has also examined the scientific

literature to determine whether there a re any peer

- rev iewed studies that contradict the

conclusions set forth in the Folkard & Tucker study . The results of this exam ination showed that the scientific literature actually corroborates the results reached by the

Folkard & Tucker study. For example, a study by Kerstin Hanecke, et. al, examined 1.2

million accidents of nearly all of the working population in Germany, high as well as low risk jobs, and concluded that:

The results show that there is clear support for the conclusion already drawn by [Folkard and ot her studies] that accident risk increases exponentially beyond the 8 th or 9th hour at work. In addition, this seems to be a rather conservative estimate, as shown by the results of some sensitivity analyses (not presented). 10

Another study, conducted by F. Nachreiner , et. al. , analyzed data from a total of about

2000 fatal accidents and concluded that “there is a reliable substantial increase in the risk of a fatal accident beyond the 9th hour at work.” 11 The Nachreiner study added that “ [t] he

results would thus support the argument that there is a general trend for the accident risk

10 Kerstin Hanecke, et. al., Accident risk as a funct ion of hour at work and time of day as determined from accident data and exposure models for the German working population , Scand J Work Environ Health, 1998; 24 suppl 3:43

- 48, at 47 (1998).

11 F. Nachreiner, et. al., Fatal accident risk as a function of ho urs into work

, Hornberger S, Knauth P, Costa G, Folkard S, eds. Shiftwork in the 21st Century. Frankfurt: Peter Lang, 2000 , at 2 4

.4 4 to increase with time after 6 to 7 hours of work and that this increase is not simply a linear but an exponential one.” 12

Because over 1,300 commenters with firsthand fatigue e xperience have informed the FAA that flying on an unaugmented flight for 10 hours leads to dangerous amounts of fatigue and because these commenters’ concerns are corroborated by the pertinent scientific studies, the FAA, at this time, believes that permit ting a flight time that is close to 10 hours, such as the 9 hours and 45 minutes requested by A4A for certain periods of the day would be unsafe

. Accordingly, the FAA cannot implement A4A’s suggestion to provide an extension for the 9

- hour daily flight

- ti me limit for unaugmented operations.

Turning to the other daily flight

- time limit specified in part 117 for unaugmented operations , a flightcrew member who starts an FDP between the hours of 2000 and 0459 is limited to 8 hours of flight time. This is bec ause an FDP that starts during that time will be conducted during the flightcrew member’s window of circadian low. As discussed in the flight, duty, and rest rule, “flightcrew members who fly during their window of circadian low experience severe performa nce degradation.” 13 For example, a NASA study cited by in that rule showed that “‘75% of night workers experience sleepiness on every shift, and 20% report falling asleep. ’” 14

If A4A’s suggestion is implemented, an unaugmented flightcrew member operating a t night during his or her window of circadian low would be able to accumulate 8 hours and 45 minutes of flight time. This flight time would only be 15 minutes less than the 9 hours of flight time that is permitted for operations that take place during the day. Because operating at night during the window of circadian low significantly degrades flightcrew member performance, the FAA cannot set an industry

- wide standard that allow s flightcrew mem bers operating at night to fly for the same amount of time as flightcrew members who fly during the day. Accordin gly, the FAA cannot implement A4A’s suggestion to provide an extension for the nighttime 8

- hour daily flight

- time limit the applies to unaugmented operations. 15

B. Remaining A4A Arguments

We are also unpers uaded by the remaining arguments presented in A4A’s petition. First, A4A argues that “decades of experience” show that a flight

- time extension can be taken safely. However, as the commenters and the studies cited above point out, this is not

accurate, as people who work for extended periods of time disproportionately contribute

to accident risk.

12 Id.

13 77 FR at 355 (citing NASA, Crew Factors in Flight Operations X: Alertness Management in Flight Operations , at 1 9

- 34 ( Apr. 1999), http://humanfactors.arc.nasa.gov/zteam/PDF_pubs/ETM.TM8_99rev.pdf ).

14 77 FR at 356 (quoting NASA, supra note 13, at 28).

15 A4A’s petition does not make any arguments specific to the flight

- time limits that apply to augmented operations. Accord ingly, we do not address those flight

- time limits here.5 5 A4A next argues that the regulatory schemes of other countries do not have daily flight time limits. While A4A acknowledges that other provisions of this rule are less stringent than analogous provisions in the other regulatory schemes, A4A does not believe that these provisions are sufficiently less stringent to justify an inflexible daily flight

- time limit. In response, we note that, as the FAA explained in the final flight, duty, and rest rule “the Administrative Procedure Act requires the FAA to consider the specific operating environment that it is regulating instead of simply following the foreign

standards.” 16 Thus, while the final flight, duty, and rest rule is arguably more stringent than foreign regulations on the issue of daily flight

- time limits, it is more lenient than those standards in other areas. For example, A4A’s petition acknowledges that 50% of the time, the FAA’s rule permits FDPs that are longer than FDPs permitted by foreign regulations. The reason that the FAA was able to permit these longer FDPs is because, as the final rule explains, the flight

- time limits in § 117.11 allowed the FAA to increase the pertinent FDP limits and provide ce rtificate holders with additional flexibility without sacrificing safety. 17 Because the FAA tailored the flight, duty, and rest rule to the specific environment that it regulates, parts of this rule may be different from its foreign counterparts. This mea ns that in some places the rule is more stringent while in other places th e rule is less stringent than foreign aviation regulations.

A4A also argues that other parts of the flight, duty, and rest rule mitigate fatigue sufficiently to allow flight

- time ex tensions. A4A adds that, because the final rule permits FDP extensions, the FAA should also allow flight

- time extensions. However, the FAA notes that part 117 was designed to work as a single cohesive part. Thus, as discussed above, it is the unextendab le daily flight

- time limits to which A4A objects that provide the level of safety necessary for the FAA to impose less stringent FDP limits ( that A4A presumably favors ) . If the flight

- time limits were to be made less stringent, than other parts of this ru le would have to be made more stringent because the level of safety that factored into their calibration would now decrease. Thus, the other parts of this rule do not support the addition of flight

- time

- limit extensions

.

Finally, A4A points to the fact t hat the Federal Motor Carrier Safety Administration (FMCSA) and the Federal Railroad Administration (FRA) imposed longer work

- hour

limits on their regulated entities than the FAA imposed on flightcrew members. With regard to FMCSA , the FAA explained , in t he final rule, that it “has taken a different approach in addressing fatigue risk among pilots than FMCSA has with respect to

commercial truck drivers.” 18 The FAA specified that:

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 transpor tation. Additionally, pilots may work several days that are very long, but then be off for an extended

16 77 FR at 361

- 62.

17 Id. at 359

- 60.

18 Id. at 392.6 6 period of time, a practice that naturally imposes a nonregulatory restorative rest opportunity. Finally, the nature of commercial flying is

such that und er 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. 19

T he FAA also notes that a commercial truck driver who realizes, while driving, that he or

she is tired can pull over and take a break. Conversely, a pilot on an unaugmented flight

who realizes that he or she is tired while flying a plane does not have that ability and will

even tually have to land the plane while fatigued. Accordingly, while FMCSA’s approach to hours of service is instructive, it is not dispositive in this case. FRA’s approach to
work

- hour limits is also not dispositive in this case because the railroad industr y does not operate in a similar manner to the airline industry.

C. Ability to Obtain Flight

- Time Extensions Under Existing Regulations

In addition to the above analysis, we also note that the ability to obtain an FRMS counsels against the FAA initiating a r ulemaking to add extensions to daily flight

- time

limits. U nder § 117.7, a certificate holder can submit a proposed FRMS that provides for flight

- time extensions to the FAA for the FAA’s review and approval. As part of its submission, the certificate hold er would have to provide the FAA with actual data showing that the flight

- time extensions in the proposed FRMS would provide for a level of safety that is equivalent to the one provided by part 117. If the FAA approves the FRMS, that FRMS would allow the certificate holder to deviate from the requirements of part 117 and utilize flight

- time extensions in its operations. Thus, if a certificate holder believes that it can safely utilize flight

- time extensions in its operation(s), that certificate can simply apply for an FRMS under the existing regulatory scheme without the need for FAA rulemaking.

19 Id.7 7

III. Conclusion

Because, as discussed above, the lack of flight

- time extensions in part 117 is justified by

both comments received during the rulemaking proces s and the current state of fatigue science and because certificate holders have the ability to obtain flight

- time extensions within the current regulatory structure of part 117, the FAA concludes that it is not necessary, at this time, to initiate a rulema king to change part 117. Accordingly, A4A’s rulemaking petition is denied and Docket No. FAA

- 2012

- 0708 is being closed.

Sincerely,

/s/

John S.Duncan Deputy Director, Flight Standards

Service