The FAA rule limits flight time to eight or nine hours, depending on the start time of the entire duty period for that pilot.

FAA Takes Aim at Pilots' Fatigue

"I think that the new rule the FAA has finalized is a great step forward when it comes to addressing fatigue in aviation," says NTSB Chairman Deborah A.P. Hersman.

For one glaring reason, few people closely involved in aviation safety love the Federal Aviation Administration’s new pilot fatigue rule, it seems. That reason is FAA's decision to exempt cargo operations because their compliance costs would significantly exceed the "quantified societal benefits." FAA said it hopes cargo operators will choose to follow the new rule voluntarily.

Pilots' professional associations ripped the exemption and the logic behind it. Leaders of the Air Line Pilots Association International and its FedEx Master Executive Council, the US Airline Pilots Association (US Airways pilots), the Independent Pilots Association (IPA, the union representing about 2,600 United Parcel Service pilots), and the Southwest Airlines Pilots' Association called the exemption a mistake. "It is outrageous that the new rule does not include cargo. Cargo aircraft operate into the same airspace, into the same crowded airports surrounded by millions of homes, and face the same challenges every other professional aviator encounters on a 24-hour basis," FedEx MEC Chairman Scott Stratton said.

IPA filed a challenge to the exemption Dec. 22, 2011, in the U.S. Court of Appeals for the District of Columbia Circuit. "Congress with H.R. 5900 in 2010 asked the FAA to revise the safety standard for the aviation industry. There should be one level of safety for the entire industry," IPA's President Robert Travis said. "We at UPS and our colleagues at the other cargo carriers, such as FedEx and others, we operate heavy aircraft, big jumbo jet aircraft, in the same airspace, to the same airports, on the same runways and the same taxiways, as everybody else. The system does not operate in a stovepipe setting. It's integrated throughout the world. We are constantly sharing that space with each other. And to allow one set of pilots -– passenger carrier pilots -– to fly by one set of rules and be rested, and to have another set of pilots in that same airspace flying the same aircraft be less rested, fatigued if you will, just does not make any sense."

FAA said in its final rule that the existing rule is not sufficient and maintaining the status quo would present an unacceptably high accident risk. "We come back to that and say operating at night, as cargo carriers do, and operating across multiple time zones, which we at UPS and our colleagues at FedEx certainly do, those things are more present in cargo operations than they are in passenger operations. So the two reasons that FAA latched onto for why these rules had to happen in the first place –- the justification for that is far more prevalent in the kind of flying that we do than in what the passenger carriers do," Travis said.

"We think we have a realistic chance of having the FAA reconsider the exclusion of cargo; that's certainly our hope," said William Trent, IPA's general counsel. "We think there were some real mistakes made in the process that FAA undertook. They put out a notice of proposed rulemaking that included cargo, with no indication they were thinking of excluding cargo."

Cargo carriers were exempted from a major aviation safety rule once before, when the passenger carriers were required in 1992 to install TCAS -- Traffic Alert and Collision Avoidance System -- technology to prevent mid-air collisions. Cargo aircraft were exempted "through exhaustive lobbying by the cargo companies, the same people who have lobbied on this safety initiative," Travis said. But cargo was put back into that rule after a 1996 midair collision over India involving a TCAS-equipped passenger aircraft and an unequipped cargo plane and also a near-collision involving Air Force One. "This isn't new territory we're treading here, where we've been carved out of an important safety regulation, and we believe that could have tragic results," he said.

Trent and Travis said FAA based its cost-benefit analysis on data submitted by the cargo operators, much of it submitted after the comment period had closed. IPA's court action does not challenge any other part of the FAA final rule, which Travis described as "one of the biggest and most important safety initiatives to come along in a long time."

NTSB Chairman Deborah A.P. Hersman"It's not perfect, but it's a lot better than what we had," Deborah A.P. Hersman, chairman of the National Transportation Safety Board, agreed during an interview about the rule. "I think that the new rule the FAA has finalized is a great step forward when it comes to addressing fatigue in aviation. It's going to address many of the recommendations that the NTSB has issued over the years, and we are very encouraged that they have put forward such a strong, science-based rule."

"The NTSB commented on the inclusion of cargo in their [FAA's] advance notice of proposed rulemaking," Hersman continued. "We're very disappointed that they exempted cargo operations. What these rules are with respect to the hours of service is making sure everyone gets a good night's sleep, and the ones who really don't get a good night's sleep because they're working at night are the cargo operators. So we are really disappointed that they exempted cargo operations, and we've been straightforward about our comments on that and about our recommendations.... We will continue to investigate accidents and, unfortunately, we are probably going to see more accidents that involve nighttime operations.

"We think FAA has done a really fantastic job getting a very difficult final rule out, and the majority of it is just outstanding. We just didn't want to see the exemptions," she said.

Airlines' spokesmen would not comment about the rule's impact on their staffing or operations.

"Basically, our position is that it's an FAA regulation and we'll meet it," said American Airlines spokesman Ed Martelle. He said information about American's staffing and routes is proprietary and won't be disclosed. "It amazes us sometimes what other airlines will say, because we're taking notes," he added. American expects to exit its Chapter 11 reorganization in "about 15-17 months" with new pilots' agreements in place at the end of that process, he said Jan. 10.

"We are still in the review phase of the document, but as we have said previously, we support any changes to the rule that are science-based and that will improve safety," said Brandy King, senior manager of communication for Southwest Airlines.

A Better Understanding of Fatigue
Another unit of the U.S. Department of Transportation, the Federal Motor Carrier Safety Administration, enacted new rules governing hours of service on Dec. 22. The FMCSA rule sets these limits for commercial motor vehicle drivers:

  • Property-carrying drivers may drive a maximum of 11 hour after 10 consecutive hours off duty; may not drive beyond the 14th consecutive hour after coming on duty, following 10 consecutive hours off duty.
  • Passenger-carrying drivers may drive a maximum of 10 hours after eight consecutive hours off duty; may not drive after having been on duty for 15 hours, following eight consecutive hours off duty.

FAA's rule limits flight time to eight or nine hours, depending on the start time of the pilot's entire duty period. It requires a minimum 10-hour rest period prior to the flight duty period, two hours more than the previous rule required; says the pilot must have an opportunity for eight hours of uninterrupted sleep within that 10-hour rest period; and requires pilots to have at least 30 consecutive hours free from duty on a weekly basis, which is a 25 percent increase from the prior rule.

DOT's fact sheet says the new rule also allows airlines to develop alternative ways of mitigating their pilots' fatigue based on science and data FAA has validated; FAA would monitor such programs.

Kevin Choksi, CEO and co-founder of WorkForce Software in Livonia, Mich., said his company has worked with airlines and some other 24-hour industries, including nuclear power, gas pipelines, and petrochemicals, to help them manage their workforces and comply with work hour regulations. Regulatory agencies are starting to look at fatigue comprehensively, looking at patterns of work and the times that an individual works.

"What has started to become clear through the research is there is what I like to call, in layman's terms, burnout. 'I've been going at this thing for 50 hours a week for the last six months, and I haven't had a vacation day.' Or 'I haven't had a week's time off to rejuvenate, de-stress, and just kind of get ready for the next six-month period.' That longer-term burnout factor is now starting to be recognized as a contributing factor to fatigue," Choksi said. "What some of the more forward-looking regulations do -- and the most sophisticated regulations are in the nuclear power industry right now -– they look at this longer-term factor and say it's not just how you've worked in past few days or this week. They'll look at a six-week period. And over a six-week period, you have to have a certain number of days off in order to be deemed fit for duty, according to the regulations in the nuclear power industry."

Such regulations set different limits for daytime workers and nighttime workers, he said, and set different limits for those working 10-hour shifts and those working 12-hour shifts.

"They are hypothesizing that working the night shift causes greater levels of stress, and they've correlated working the night shift with greater incidence of certain diseases, like cardiovascular diseases and diabetes and cancer," Choksi said. "Working the night shift is a health risk factor." There will always be people working night shifts, so employers that use them should design their shifts to maintain the employees' alertness as much as possible, he said.

"I have to say, I've worked in this industry for a few decades and watched regulations. Certainly, we've seen rewrites of some of the hours of service regulations in the highway mode in the last decade, in the railway mode in the last decade, and in the aviation mode in the last decade. Many of those rules stood for 50, 60, 70, 80 years," NTSB's Hersman said. "We actually are seeing tremendous progress, and I think a lot of that is the result of the NTSB's investigations where we were able to identify fatigue as a causal factor in accidents. And they result from a lot of the science that's been done in regard to sleep and rest. That science is much more mature, and I think there has really been a business case to make for addressing fatigue."

She said the new FAA rule resembles the British model and the Australian model. "The British model was the first one that used the number of flight legs and the start times and the time of day to basically have a scale of how many hours you could fly. Our final rule looks a little like that," she said. "We weren't a world leader when it comes to doing hours of service in aviation. There were other countries that had more mature and innovative systems and hours of service systems than the U.S., but there's other countries that we’re probably ahead of."

An increasing number of bus and trucking companies screen their drivers for sleep apnea. Hersman said while attending the January 2012 American Bus Association Marketplace conference, she learned about the screening program at GO Riteway Transportation Group, a ground transportation company based in Oak Creek, Wis., with about 100 drivers. About 30 percent of its drivers were found to be candidates for CPAP machines, Hersman said. "That shows some worker populations have significantly higher incidence," she noted.

She said some bus companies would prefer to stop running overnight trips but find that their customers want them – possibly to avoid paying for a hotel room and/or wanting to arrive at their destination in the morning. School groups also like overnight trips, she said.

"We know that fatigue is a complex issue," Hersman said. "It's not just about hours of service. It's about risk management. It's about ensuring that you identify sleep disorders and look at what medications people are taking. It really is a multi-pronged approach that people are taking to address fatigue, and I think we're getting a lot more sophisticated in our understanding of fatigue and doing a better job of addressing it. Fatigue has always been around. In the past, we used to just tell people to buck up and power through it. Underlying that is basic physiology that we can't power through. You've got to make sure that people are rested and that they stay healthy in regard to their sleep needs."

This article originally appeared in the March 2012 issue of Occupational Health & Safety.

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