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[Federal Register Volume 77, Number 2 (Wednesday, January 4, 2012)]
[Rules and Regulations]
[Pages 330-403]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33078]

[[Page 329]]

Vol. 77

Wednesday,

No. 2

January 4, 2012

Part II

Department of Transportation

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Federal Aviation Administration

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14 CFR Parts 117, 119, and 121

Flightcrew Member Duty and Rest Requirements; Final Rule

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

[[Page 330]]

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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.

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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 safety-critical 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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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 Sec.  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
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                        Total quantified benefits
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                                     Nominal      PV at 7%     PV at 3%
             Estimate               (millions)   (millions)   (millions)
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Base.............................         $376         $247         $311
High.............................          716          470          593
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                         Total quantified costs
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                                     Nominal      PV at 7%     PV at 3%
            Component               (millions)   (millions)   (millions)
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Flight Operations................         $236         $157         $191
Rest Facilities..................          138          129          134
Training.........................           16           11           13
                                  --------------------------------------
    Total........................          390          297          338
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    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\ All-
cargo 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.
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    \1\ The 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.
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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

[[Page 333]]

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 all-cargo 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\
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    \2\ Recovery 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.
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    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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periods, and day-to-night or night-to-day transitions.
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    \3\ Rosekind 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.
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    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\
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    \4\ While 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.
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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\
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    \5\ On 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.
---------------------------------------------------------------------------

    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

[[Page 335]]

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.
---------------------------------------------------------------------------

    \6\ 75 FR 55852; September 14, 2010.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \7\ 75 FR 62486; October 12, 2010.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \8\ 75 FR 63424; October 15, 2010.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

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

    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 non-scheduled 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 on-demand 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 non-scheduled 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 non-
scheduled 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 all-cargo flights have also objected to the

[[Page 336]]

proposed rule applying to supplemental operations. These industry 
commenters asserted that, while a passenger-operation 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 all-cargo 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 high-quality 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 cost-benefit comparison that applies to all-cargo 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\
---------------------------------------------------------------------------

    \10\ 72 FR 1808, 1816 (2007).
---------------------------------------------------------------------------

    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 all-cargo 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

[[Page 337]]

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, all-cargo, 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\
---------------------------------------------------------------------------

    \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).
    \13\ An 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.
---------------------------------------------------------------------------

    The FAA acknowledges that this rule will significantly impact 
supplemental passenger operations because it reduces the existing 16- 
and 30-hour across-the-board 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.
---------------------------------------------------------------------------

    \14\ The 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.
    \15\ See 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).
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \17\ Jeffrey H. Goode, Are pilots at risk of accidents due to 
fatigue?, Journal of Safety Research 34 (2003) 309-13.

    [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\
---------------------------------------------------------------------------

    \18\ Id. at 311.

    Because studies examining the national accident rate and aviation-
specific 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

[[Page 338]]

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 
maximum-FDP-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 non-scheduled 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 Sec. Sec.  
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 Sec.  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

[[Page 339]]

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 fatigue-mitigation 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 three-seat 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 Sec.  
117.27 limits consecutive nighttime flight duty periods to three 
periods. To avoid confusion in applying Sec.  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 Sec.  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 Sec.  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, non-assigned 
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 Sec.  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 
regularly-scheduled 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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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. Sec.  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 Sec.  
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 short-call 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 over-relying 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

[[Page 344]]

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 Sec.  
117.25 or part Sec.  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 in-flight. 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, in-flight 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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to UPS and NACA's concerns, the FAA has changed the phrase ``passenger 
cabin'' to ``aircraft cabin'' in the rest-facility 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 economy-
class seats should not be considered a rest facility in this rule.
---------------------------------------------------------------------------

    \19\ TNO Report at 17.
    \20\ Id. at 18.
---------------------------------------------------------------------------

    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

[[Page 346]]

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 
Sec.  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 
short-call 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 fatigue-mitigating 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 split-duty 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

[[Page 347]]

sleep in a bed and to control light.'' APA recommended the following 
revised definition: ``suitable accommodation means a single-occupancy 
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 single-occupancy rooms are 
essential for split-duty rest. Until there is more data showing the 
safety benefits of single-occupancy 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 Sec.  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 Sec. Sec.  117.15 and 117.19, the term 
``unforeseen circumstance'' is used, but the related wording does not 
match what is used in

[[Page 348]]

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 non-scheduled 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 fatigue-inducing 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 Sec.  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

[[Page 349]]

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 Sec.  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 non-retaliation 
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 self-reporting 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 self-assess 
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 well-rested enough to safely 
complete his or

[[Page 350]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 351]]

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\
---------------------------------------------------------------------------

    \21\ See, e.g., NASA, Crew Factors in Flight Operations X: 
Alertness Management in Flight Operations, at 16 (Apr. 1999), http://human-factors.arc.nasa.gov/zteam/PDF_pubs/ETM.TM8_99rev.pdf 
(``Sleepiness can degrade essentially every aspect of human 
performance'').
    \22\ The 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.
    \23\ The 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.
---------------------------------------------------------------------------

    In order to raise awareness of fatigue-related 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.
---------------------------------------------------------------------------

    \24\ Because 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.
---------------------------------------------------------------------------

    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

[[Page 352]]

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.
---------------------------------------------------------------------------

    \25\ AQP 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.
---------------------------------------------------------------------------

    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 Sec.  117.7, an FAA-approved 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

[[Page 353]]

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.
---------------------------------------------------------------------------

    \26\ The 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.
    \27\ FOQA is a voluntary safety program that is designed to make 
commercial aviation safer by allowing commercial airlines and pilots 
to share de-identified 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.
---------------------------------------------------------------------------

    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 Sec.  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 fatigue-related 
accidents or incidents. Subsection (b) specifies the components of an 
FMRS.
    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.
    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.

[[Page 354]]

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) 
Fatigue-related 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 Sec.  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 
Sec.  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.
---------------------------------------------------------------------------

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

    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

[[Page 355]]

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 safety-
critical 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.
---------------------------------------------------------------------------

    \29\ See, e.g., NASA, supra note 22, at 19-34.
    \30\ Folkard, supra note 15, at 98 (analyzing three studies that 
reported a trend in risk over successive hours on duty).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \31\ Continental Connection Flight 3407 was operated by Colgan 
Air.
---------------------------------------------------------------------------

    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%

[[Page 356]]

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-
hour-week 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 FAA-proposed 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-of-day-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.
---------------------------------------------------------------------------

    \32\ See NASA, supra note 22, at 28.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \33\ See, e.g., Folkard, supra note 15, at 98.
    \34\ Id.
---------------------------------------------------------------------------

    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 multi-segment 
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 short-haul 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 FDP-decreases caused by FDPs with multiple flight segments.
---------------------------------------------------------------------------

    \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.
    \37\ Samira 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.
---------------------------------------------------------------------------

    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.

[[Page 357]]

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 FDP-limit 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 multiple-flight-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.
---------------------------------------------------------------------------

    \38\ See, e.g., NASA, supra note 22, at 19-34.
    \39\ See Folkard, supra note 15, at 98.
---------------------------------------------------------------------------

    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 peer-reviewed 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\
---------------------------------------------------------------------------

    \40\ See id.
    \41\ Id.
    \42\ See Comments of the Cargo Airline Association, Attachment C 
at 5 (Nov. 15, 2010).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \43\ CAP-371 section 7.3.1.
    \44\ Id. section 7.3.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \45\ EU 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.
---------------------------------------------------------------------------

    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-ARC-
members' 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

[[Page 358]]

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 five-segment 
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 five-segment FDP in this 
timeframe. As such, the FAA has not made downward adjustments to this 
limit.
---------------------------------------------------------------------------

    \47\ The 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.
---------------------------------------------------------------------------

    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 time-and-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.

----------------------------------------------------------------------------------------------------------------
                                             Maximum flight duty period (hours)  for lineholders based on number
                                                                     of flight segments
  Time of start (home base or acclimated)  ---------------------------------------------------------------------
                                                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

[[Page 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 
FAA-proposed Table B:

----------------------------------------------------------------------------------------------------------------
                                                                        Acclimated segments
                  Time of start                  ---------------------------------------------------------------
                                                        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 one-and 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 four-segment 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-hour-long multi-
segment FDPs without additional data showing that a multi-segment 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

[[Page 360]]

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 in-theater 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 in-cockpit 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 time-of-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.
---------------------------------------------------------------------------

    \48\ See Folkard, supra note 15, at 98.
---------------------------------------------------------------------------

    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

[[Page 361]]

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 flight-
time limits at 9 hours for peak circadian times, and 8 hours for all 
other times.
---------------------------------------------------------------------------

    \49\ See id.; John A. Caldwell, Fatigue in aviation, Travel 
Medicine and Infectious Disease, 3, at 88-90 (2005).
---------------------------------------------------------------------------

    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 flight-time limits to ensure that flightcrew members do not 
fly an aircraft for longer than 8 or 9 hours.
---------------------------------------------------------------------------

    \50\ The 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.
    \51\ See supra note 50.
---------------------------------------------------------------------------

    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 task-intensive 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 flight-
time limits in this rule.
    Turning to the foreign aviation standards cited by some of the 
commenters, the FAA notes that the

[[Page 362]]

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.
---------------------------------------------------------------------------

    \52\ EU Rules, Subpart Q, OPS 1.1100, section 1.3 and OPS 
1.1110, section 1.1.
---------------------------------------------------------------------------

    The FAA also notes that the other regulatory regimes did not 
completely eliminate flight-time limits. While other regulations do not 
contain daily flight-time 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\
---------------------------------------------------------------------------

    \53\ See, e.g., EU Rules, Subpart Q, OPS 1.1100, section 1.2.
    \54\ See id.; CAP-371, section 21.1.
---------------------------------------------------------------------------

    Over 1,300 individual commenters objected to the proposed 10-hour 
flight-time 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.
---------------------------------------------------------------------------

    \55\ See 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).
    \57\ Caldwell, supra note 50, at 90.
---------------------------------------------------------------------------

    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 
across-the-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 flight-time 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 non-peak 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 flight-time 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.

[[Page 363]]

    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.
---------------------------------------------------------------------------

    \58\ See Folkard, supra note 15, at 98.
---------------------------------------------------------------------------

    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 post-takeoff 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\
---------------------------------------------------------------------------

    \59\ If the destination is unavailable, the aircraft would land 
at the designated alternate airport.
    \60\ The ``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.
---------------------------------------------------------------------------

    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 flight-time limit. Atlas Air 
stated that, for some augmented FDPs, the 16-hour FDP flight time would 
exceed the applicable FDP limit.
---------------------------------------------------------------------------

    \61\ Citing Colquhoun, P., Psychological and Psychophysiological 
Aspects of Work and Fatigue, Activitas Nervosa Superior, 1976, 
18:257-263.
---------------------------------------------------------------------------

    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 system-
wide 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 flight-time 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 three-pilot 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 flight-time 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.

[[Page 364]]

    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 in-flight 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, mid-flight, 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\
---------------------------------------------------------------------------

    \62\ TNO Report at 19.
---------------------------------------------------------------------------

    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 
type-rating 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
----------------------------------------------------------------------------------------------------------------
                                                  Maximum flight duty period (hours) based on rest facility and
                                                                        number of pilots
                                               -----------------------------------------------------------------
                  Acclimated                        Class 1 rest          Class 2 rest          Class 3 rest
                                                      facility              facility              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.''

[[Page 365]]

                      Revised Table C--Flight Duty Period: Acclimated Augmented Flightcrew
----------------------------------------------------------------------------------------------------------------
                                                  Maximum flight duty period (hours) based on rest facility and
                                                                        number of pilots
                                               -----------------------------------------------------------------
          Time of start (local time)                Class 1 rest          Class 2 rest          Class 3 rest
                                                      facility              facility              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.
---------------------------------------------------------------------------

    \63\ See, 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).
---------------------------------------------------------------------------

    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

[[Page 366]]

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 time-on-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.
---------------------------------------------------------------------------

    \64\ See Folkard, supra note 15, at 98 (showing an exponential 
increase in accident risk after the 8th and 9th hour of work).
---------------------------------------------------------------------------

    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 in-flight 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 short-term 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 
short-term 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 in-flight 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

[[Page 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 in-flight 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 ninety-consecutive-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

[[Page 368]]

additional FRMS-provided data from air carriers wishing to exceed the 
three-flight-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 four-pilot 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 three-
pilot 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 four-pilot 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.
---------------------------------------------------------------------------

    \65\ CAP-371, section 15.3.
---------------------------------------------------------------------------

    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 four-pilot augmented flightcrew will accumulate less 
fatigue during their flight than the members of the three-pilot 
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 type-rated.
    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 fatigue-mitigation 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

[[Page 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 Sec.  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 pairing-specific 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 Sec.  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 Sec.  117.15 FDP: Un-augmented operations and 
Sec.  117.19 FDPs: Augmented flightcrew are now codified in Sec.  
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 
two-hour extension was appropriate.

[[Page 370]]

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, non-scheduled 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 Sec.  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.
---------------------------------------------------------------------------

    \66\ Section 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.
---------------------------------------------------------------------------

    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 
Sec.  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

[[Page 371]]

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.
---------------------------------------------------------------------------

    \67\ See, e.g., Wyatt, supra note 64, at R1160-62; Akerstedt, 
supra note 64 at 159-69.
    \68\ See NASA, supra note 22, at 19-34.
---------------------------------------------------------------------------

    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 four-hour 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

[[Page 372]]

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 minute-by-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.
---------------------------------------------------------------------------

    \69\ See 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

[[Page 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-by-minute 
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 ground-based 
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

[[Page 374]]

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 consecutive-night 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 consecutive-night 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 three-
consecutive-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

[[Page 375]]

during the WOCL after obtaining less-restful 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.
---------------------------------------------------------------------------

    \71\ See 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).
    \72\ See 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \73\ Id.
---------------------------------------------------------------------------

    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 mid-duty 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\
---------------------------------------------------------------------------

    \74\ See Wyatt, supra note 64; Akerstedt, supra note 64.
---------------------------------------------------------------------------

    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

[[Page 376]]

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-nighttime-operations 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 consecutive-night 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

[[Page 377]]

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 un-interrupted 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 short-call 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:
[GRAPHIC] [TIFF OMITTED] TR04JA12.000

    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

[[Page 378]]

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 Sec.  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 Sec.  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 short-call 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.
---------------------------------------------------------------------------

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

    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

[[Page 379]]

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 duty-period 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 non-flight 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 
non-flight 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 
flight-time 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 flight-time 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.

[[Page 380]]

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 off-peak 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

[[Page 381]]

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 
non-flight 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-
duty-period 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\
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    \77\ Akerstedt, 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.
    \78\ Rosekind, 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.
    \79\ Caldwell, 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.
---------------------------------------------------------------------------

    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\
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    \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 time-zone changes on fatigue and the circadian rhythms of 
sleep/wake and core temperature (NASA/TMm 1985-88197). Moffett 
Field, CA. NASA Ames Research Center.
    \81\ Lamond, 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.
---------------------------------------------------------------------------

    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,

[[Page 382]]

may be more restorative because of circadian issues.
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    \82\ See 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 long-haul 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.
---------------------------------------------------------------------------

    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

[[Page 383]]

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\
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    \83\ The FAA notes that not all pilot groups are organized and 
therefore, do not have a collective bargaining process.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 384]]

across multiple time zones involve a differential restructuring in an 
internal circadian desynchronization and associated symptoms.\86\
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    \85\ Winget CM, Deroshia CW, Markley CL, Holley DC. (1984). A 
review of human physiological and performance changes associated 
with desynchronosis of biological rhythms. Aviat. Space Envion. Med. 
1984; 55:1085-96, p. 1090.
    \86\ Id. at p. 1085.
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    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\
---------------------------------------------------------------------------

    \87\ Wegmann 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.
---------------------------------------------------------------------------

    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\
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    \88\ Wegmann 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.
    \89\ Winget et al. (1984) at page 1087.
---------------------------------------------------------------------------

    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[deg] 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.
---------------------------------------------------------------------------

    \90\ This change is consistent with the modification to the term 
theater in the definitions section, discussed earlier.
---------------------------------------------------------------------------

    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 
re-acclimate. 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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    \91\ See 14 CFR 121.483, 121.485, 121.523 and 121.525.

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[[Page 385]]

[GRAPHIC] [TIFF OMITTED] TR04JA12.001

    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

[[Page 386]]

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 Sec.  
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 Sec.  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 Sec.  
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.
---------------------------------------------------------------------------

    \92\ This 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.
---------------------------------------------------------------------------

    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 self-induced 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 Sec.  
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 Sec.  119.55.
    This section also applies to operations conducted pursuant to a 
deviation issued by the Administrator under Sec.  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

[[Page 387]]

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 Sec.  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\
---------------------------------------------------------------------------

    \93\ FAA Response to Clarifying Questions.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  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 
Sec. Sec.  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 Sec.  
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 
Attendants-CWA v. Chao, 493 F.3d 155, 157 (D.C. Cir. 2007)).\94\
---------------------------------------------------------------------------

    \94\ See 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'').
---------------------------------------------------------------------------

    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 safety-
acceptable 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).
---------------------------------------------------------------------------

    \95\ See, 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).
---------------------------------------------------------------------------

    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 
flight-time hours of airmen and other covered

[[Page 388]]

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

[[Page 389]]

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 fatigue-related 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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-

[[Page 390]]

05-03 because it was not subjected to peer review.
---------------------------------------------------------------------------

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

    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\
---------------------------------------------------------------------------

    \98\ The 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.
---------------------------------------------------------------------------

    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

[[Page 391]]

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 peer-reviewed 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.
---------------------------------------------------------------------------

    \99\ See supra notes 36-38.
---------------------------------------------------------------------------

    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 five-fold 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 time-
zone-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.

[[Page 392]]

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 long-term 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 non-regulatory 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

[[Page 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.
---------------------------------------------------------------------------

    \100\ See OMB submission from ALPA dated October 28, 2011. 
http://www.whitehouse.gov/omb/oira_2120_meetings/.
---------------------------------------------------------------------------

    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
-------------------------------------------------------------------------
                                     Nominal      PV at 7%     PV at 3%
             Estimate               (millions)   (millions)   (millions)
------------------------------------------------------------------------
Base.............................         $376         $247         $311
High.............................          716          470          593
------------------------------------------------------------------------

 
                        Total costs over 10 years
-------------------------------------------------------------------------
                                     Nominal      PV at 7%     PV at 3%
            Component               (millions)   (millions)   (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 fatigue-related 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%).

[[Page 394]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \102\ Table 6, FAA Aerospace Forecasts Fiscal Years 2011.
---------------------------------------------------------------------------

    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%).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.

----------------------------------------------------------------------------------------------------------------
                                                                   Nominal cost      PV at 7%        PV at 3%
                         Cost component                             (millions)      (millions)      (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

[[Page 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 
Sec.  117.11, Sec.  117.19 and Sec.  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' Mid-duty 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 mid-duty 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

[[Page 396]]

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.
---------------------------------------------------------------------------

    \104\ As discussed in the International Compatibility section, 
there are no ``international standards'' to consider.
---------------------------------------------------------------------------

    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 
flight-time 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\
---------------------------------------------------------------------------

    \105\ See EU Rules, Subpart Q, OPS 1.1100, section 1.3 and OPS 
1.1110, section 1.1.
---------------------------------------------------------------------------

    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 Sec.  117.7, fatigue training Sec.  117.9, flight 
time limitation Sec.  117.11, and flight duty period extension 
reporting Sec.  117.19 and Emergency and government sponsored 
operations Sec.  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) 
Sec.  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 x 20 
estimated carriers);
    e. Total annualized cost of FRMS paperwork is about $14,950 
($1,253.50 x 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 Sec.  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

[[Page 397]]

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 x 2,345 hours);

(3) PRA analysis for Sec.  117.11, Sec.  117.19 and Sec.  117.29 
provisions

    The FAA combined the cost estimates in one PRA analysis for three 
provisions of the final rule (Sec.  117.11, Sec.  117.19 and Sec.  
117.29), since paperwork burdens for carriers to report activities that 
were not otherwise permitted by Sec.  117.11, Sec.  117.19 and Sec.  
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 x 
3) per carrier and 1,206 times (67 x 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 x 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 x $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 report-emails.

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\
---------------------------------------------------------------------------

    \106\ Chapter 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.
---------------------------------------------------------------------------

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

[[Page 398]]

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:

0
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.

Sec.  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.

Sec.  117.3  Definitions.

    In addition to the definitions in Sec. Sec.  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 fatigue-related 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

[[Page 399]]

period and is not acting as a reserve flightcrew member.
    Long-call reserve means that, prior to beginning the rest period 
required by Sec.  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 temperature-
controlled, 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.

Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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

[[Page 400]]

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.

Sec.  117.13  Flight duty period: Unaugmented operations.

    (a) Except as provided for in Sec.  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.

Sec.  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.

Sec.  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 Sec.  121.543(b)(3)(i) of this chapter 
must be at the flight controls.

Sec.  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 Sec.  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 Sec.  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.

Sec.  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 Sec.  
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

[[Page 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 Sec.  117.25(e).

Sec.  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.

Sec.  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[deg] 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.

Sec.  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 Sec.  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 
Sec.  117.15 counts as part of a flight duty period.

Sec.  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 Sec.  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 Sec.  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 
Sec.  117.23(b) and the cumulative flight duty period limits in Sec.  
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 Sec.  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

[[Page 402]]

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
------------------------------------------------------------------------
                                                               Maximum
                Time of report (acclimated)                  flight time
                                                               (hours)
------------------------------------------------------------------------
0000-0459.................................................             8
0500-1959.................................................             9
2000-2359.................................................             8
------------------------------------------------------------------------

                         Table B to Part 117--Flight Duty Period: Unaugmented Operations
----------------------------------------------------------------------------------------------------------------
                                                    Maximum flight duty period (hours) for lineholders based on
                                                                     number of flight segments
    Scheduled time of start (acclimated time)     --------------------------------------------------------------
                                                      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
----------------------------------------------------------------------------------------------------------------
                                                  Maximum flight duty period (hours) based on rest facility and
                                                                        number of pilots
                                               -----------------------------------------------------------------
   Scheduled time of start (acclimated time)        Class 1  rest         Class 2  rest         Class 3  rest
                                                      facility              facility              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

0
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.

0
3. In Sec.  119.55, revise paragraph (a) to read as follows:

Sec.  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

0
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.

0
5. In Sec.  121.467, revise paragraphs (c) introductory text and (c) 
(1) to read as follows:

Sec.  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]

0
6. Revise Sec.  121.470 to read as follows:

Sec.  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

[[Page 403]]

applicable requirements of Sec. Sec.  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.

0
7. Add Sec.  121.473 to read as follows:

Sec.  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]

0
8. Revise Sec.  121.480 to read as follows:

Sec.  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 Sec. Sec.  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.

0
9. Add Sec.  121.495 to read as follows:

Sec.  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]

0
10. Revise Sec.  121.500, to read as follows:

Sec.  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 Sec. Sec.  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.

0
11. Add Sec.  121.527 to read as follows:

Sec.  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 Sec.  121.583, revise paragraph (a) introductory text to 
read as follows:

Sec.  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 
Sec. Sec.  121.309(f), 121.310, 121.391, 121.571, and 121.587; the 
passenger-carrying operation requirements in part 117 and Sec. Sec.  
121.157(c) and 121.291; and the requirements pertaining to passengers 
in Sec. Sec.  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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