AFS

- 13

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- E Exemption No. 11151

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

SOUTHW EST AIRLINES CO. Regulatory Docket No. FAA

- 2013

- 0058

for an exemption from § 121.467(b)(13) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated January 22 , 2013 , Mr. Greg Crum, Director of Operations, Southwest Airlines, P.O. Box 36611, Dallas

, Texas 75235

- 1611, petitioned the Federal Aviation Administration (FAA) o n behalf of Southwest Airlines ( South west ) for an exemption from

14 CFR § 121.467(b)(13 )

. Southwest requests approval to relieve each flight attendant engaged in air transportation from all further duty for at least 24 consecutive hours during ‘‘any 168 consecutive

- hour period’’ in lieu of ‘ ‘any 7 consecutive calendar days.’’

P etitioner requests relief from the following regulation :

Sect ion 121.467(b) (13) prescribes, in pertinent part, that e xcept as provided in paragraph (c) of this section, a certificate holder conducting domestic, flag, or supplemental operations may assign a duty period to a flight attendant only when the applicable duty period limitations and rest requirements of this paragraph are met

. Each certificate holder conducting domestic flag or supplemental operations must

re lieve each flight attendant engaged in air transportation and each commercial operator must relieve each flight attendant engaged in air commerce from all further duty for at least 24 consecutive hours during any 7 consecutive calendar days.2

P etitioner p rovides the following supporting information:

The petitioner states that the preamble to the f inal r ule on Flight Attendant Duty Period Limitations and Rest Requirements (59 FR 42974) addressed public comments in
support of replacing 7 consecutive calenda r days with a 168 consecutive

- hour period.

Southwest believes the use of consecutive days in d uty and rest requirements was consistent for both flightcrew members and flight attendants from publication of the

final rule for flight attendant duty and rest until publication of a Notice of Proposed Rulemaking (NPRM) concerning flightcrew member duty and rest on September 13,

2010

. Southwest states in its petition that “ the FAA acknowledged in the NPRM that

there are similarities between the types of operati ons and universality of factors that lead to fatigue in most individuals. ” Southwest asserts that the FAA’s adoption of consecutive hours in the flightcrew duty and rest requirements prescribed in 14 CFR
part 117, which became effective January 4, 2014, c reates an inconsistency with flight attendant duty and rest requirements.

The petitioner asserts that granting this exemption will allow Southwest to apply language from the flightcrew regulations promulgated in 14 CFR part 117 to flight

attendant schedu ling. Southwest believes that relieving a flight attendant from duty for

at least 24 consecutive hours during any 168 consecutive

- hour period is equivalent to relieving a flight attendant for 24 consecutive hours in any 7 consecutive calendar days.

South west believes that this exemption will have no adverse effect on public safety

because:

1. Regardless of the “168 consecutive hour ” or “ 7 consecutive calendar day ” distinction, the scheduled duty period limitations of 14 CFR § 121

. 467(b)(1) would still apply . Flight a ttendants will not be subject to additional duty time as a result of this exemption ;

2. Required rest between duty periods as provided in 14 CFR §§ 121.467(b)(2) and (3) would remain unchanged and continue to protect against flight attendant fatig ue ;

3. T wenty

- four consecutive hours of rest free from duty will remain scheduled in a time per iod that is commensurate with the current any 7 consec u tive calendar days” period ;

4. Flight attendants will have the ability to track a time period that begins usin g the local time when they begin a legally scheduled duty period, as opposed to tracking time periods that begin sometime before that flight attendant reports for duty. This ease of tracking ensures that 24 hours of consecutive rest free from duty is obtai ned in accordance with the intent of the regulation. In an effort to

m itigate any confusion surrounding the calendar day/hour distinction and ensure3

flight attendants are individually accounting for and considering requisite time periods, Southwest will c arefully track the 168 consecutive

- hour period for flight attendants. While Southwest recognize s 14 CFR § 121.467(b)(13) contains no regulat ory requirement that flight attendants track such time periods, Southwest encourages flight attendants to do so base d on the commonly held u nderstanding that "[a] flight attendant is in the best position to know how many hours he has been on duty. If a flight attendant knows he will exceed duty time limitations before the completion of all of his assigned flights

for th e day, he should communicate that fact to both the carrier's management

and the PIC ; ” and

5. Southwest will provide training concerning this requested language change by bulletin to flight attendants, flight attendant managers, supervisors and trainers.

Sout hwest will also have managers and supervisors in the flight attendant scheduling department provide individual hands

- on training to every flight

attendant scheduler

.

A summary of th e petition was published in the Federa l Register on February 2 8 , 2013 ( 78 FR 13745 ). The Association of Flight Attendants (A F A ) submitted the sole

comment in opposi tio n of the exemption. AFA contends that granting the petition “ is not in the public inter e st because it does not ensure that all of the other provisions of

the fli ght crew member rules cited by the p etitioner shall apply to its flight attendants as

the FAA intended in § 121.467. ”

The Transport Workers Union of America ( TWU) summited the sole comment in
support of the exemption. TWU asserts that granting the exempt ion would “ improve safety at Southwest through operationally consistent application of § 121.467 that is both compliant with the regulation yet offers flexible synergies that are required in a

mo r e global environment. ” TWU also believes that “ the (any 168 consecutive hour period) language is fully supported in spirit and intent of the regulation. ”

The FAA ’s analysis is as follows :

The FAA carefully considered all information presented by the petitioner and finds that granting the petition for exemption would not provide a level of safety equivalent to that provided by the rule from which it seeks exemption and, therefore, would not be in the public interest.

The duty and rest requirements in § 121.467 protect flight attendants whose safety

sensitive d uties could be negatively impacted by work

- related fatigue. The FAA recognizes that an excessively fatigued flight attendant is less likely to be capable of maintaining situational awareness while performing safety

- related duties, which
presents an unacce ptable risk. Therefore, in the interest of air transportation and air commerce safety, the FAA published a final rule titled, Flight Attendant Duty Period4

Limitations and Rest Requirements (59 FR 42974), which set forth the flight attendant duty and rest requirements contained in § 121.467.

Southwest asserts that the FAA’s adoption of consecutive hours in the flightcrew duty and rest requirements prescribed in 14 CFR part 117 1 creates an inconsistency with flight attendant duty and rest requirements , whic h rely on a consecutive calendar

- day period

. The petitioner correctly notes that t he Flightcrew Member Rest and Duty Requirements final rule (77 FR 330) relies on a 168 consecutive

- hour period.
However, t he underlying philosophy of the rule is that no si ngle element of the rule mitigates the risk of fatigue to an acceptable level . R ather, the FAA has adopted a system approach, whereby both the carrier and the pilot accept responsibility for mitigating fatigue. The rule requires a fitness for duty affirm ation as a part of the flight release, a defined Fatigue Risk Management Plan , and education and awareness training.

Additionally, t he 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 provisions in the rule also acknowledge the impact of duty periods during consecutive nights and split duty periods. A carrier that utilizes the provisions of § 117.25 for flig ht attendants would be required to provide 30 hours free from duty in any 168 consecutive

- hour period as opposed to the 24 hours free from duty within 7 calendar days required by the flight attendant regulations.

The FAA points out that

, t o ensure tha t flight attendants have an opportunity for adequate rest, § 121.467 was revised to codify the provisions of the pilot duty and rest limitations found in part 117

. As stated in § 121.467(c)(1), n otwithstanding 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 t he f lightcrew is subject to part 117

.

The current provisions of § 121.467(c) allow air carriers to apply pilot rest and duty requirements to flight attendants as an alternative to using the flight attendant duty and rest period limitation rule. The FAA publi shed a clarification regarding part 117 (78 FR 14179) specifiying that, i f a flight attendant operates under part 117, that flight

attendant must comply with the provisions of part 117 that apply to flightcrew

members. Flightcrew members are required to declare their fitness for duty pursuant to § 117.5(d) and go through fatigue education and awareness training pursuant to § 117.9. Accordingly, these requirements would also extend to flight attendants operating under part 117.

1 Flightcrew Member Duty and Re st Requirements final rule (77 FR 330).5

The f light and d uty l imitations and r est r equirements in part 1 1 7 are based on the concepts of fatigue risk management and mitigation as a whole. When a carrier opts to apply flightcrew member duty and rest requirements to flight attendants, it is obliged to include all provi sions

. Therefore, the FAA finds that granting the requested relief would not create consistency between pilot and flight attendant duty and rest requirements but, instead, would enable Southwest to selectively apply portions of part
117 to its flight atte ndants

.

The FAA’s Decision

In consideration of the foregoing, I find that a grant of exemption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 and 44701, delegated to me by the Adminis trator, the Southwest Airlines petition for an exemption from 14 CFR § 121.467(b)(13) is denied.

Issued in Washington, DC, on January 12, 2015.

.

/s/ John Barbagallo Acting Deputy Director, Flight Standards Service