2011-4271. Proposed Legal Interpretation

AGENCY:

Federal Aviation Administration (FAA).

ACTION:

Proposed interpretation.

SUMMARY:

The FAA is considering clarifying the application of flight time limitations and rest requirements in 14 CFR 121.481 and 121.483 for pilots operating in flag operations as part of a two-pilot crew and as part of a two-pilot crew and one additional flightcrew member during a seven-day period.

DATES:

Comments must be received on or before May 2, 2011.

ADDRESSES:

You may send comments identified by Docket Number FAA-2011-0045 using any of the following methods:

Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

Hand Delivery or Courier: Bring comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

FOR FURTHER INFORMATION CONTACT:

Sara Mikolop, Attorney, Regulations Division, Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: [phone].

SUPPLEMENTARY INFORMATION:

The FAA provides flight time and rest requirements for flightcrew members used in flag operations in 14 CFR subpart R. Within subpart R, § 121.481 provides flight time limitations for one- or two-pilot crews and § 121.483 provides flight time limitations for crews of two pilots and one additional flight crewmember.

The flight time limitations are more restrictive for operations under § 121.481 than § 121.483 because the crew size is smaller and thus each pilot must assume responsibilities for more in-flight duties. See Legal Interpretation from Donald P. Byrne to James W. Johnson (August 24, 1999). In contrast, when a crew of two pilots and one additional flightcrew member operates under § 121.483, the in-flight duties are divided among more crewmembers and so the overall burden on any one crewmember may be reduced as crewmembers rotate through flight deck duties and may be provided an opportunity for rest. See Legal Interpretation from Donald P. Byrne to James W. Johnson (August 24, 1999). Thus, when the number of flightcrew members used in a flag operation increases, Subpart R allows for increased flight time. Compare 14 CFR 121.481 with 14 CFR 121.483 and 14 CFR 121.485.

On July 15, 2010, the FAA received a request for a legal interpretation regarding how to apply flight time limitations and rest requirements for pilots engaged in flag operations when those pilots participate in varying sizes of flightcrews during a seven-day period. Specifically, a pilot labor organization requested a legal interpretation regarding the application 14 CFR 121.481(d), limiting a two-pilot crew to 32 hours of flight time within any seven consecutive days, when that same crew is augmented with an additional pilot during or after the completion of 32 hours of flight time within a seven-day period. We have not previously addressed these questions.

We do not require an air carrier to use a pilot for just one flightcrew complement in flag operations. Air carriers engaged in flag operations are permitted to use the same pilot as part of a crew of two pilots, a crew of two pilots and one additional flightcrew member, or a crew of three pilots and one additional flightcrew member. This flexibility allows certificate holders who use multiple flightcrew complements throughout their operations to use flightcrew members interchangeably.

The FAA's rules have a long history of acknowledging that pilots may be used in flightcrews of varying sizes, in that § 121.487 provides a framework for calculating monthly and quarterly flight time limitations for such pilots. In an early version of the current requirement, Special Civil Air Regulation No. 386F, it was envisioned that this rule would “not allow evasion of the stricter limitations applicable to smaller crew combinations, but will allow assignment of a pilot in any given month to another type of crew combination without additional flight time limitations if he flies not more than 20 hours in the type of crew to which the more restrictive flight time limitations apply and if such assignment is not interrupted more than once during such month.” See 28 Fed. Reg. 2000, 2000 (1963). Although § 121.487 provides a structure for calculating monthly and quarterly flight time limitations for pilots used in varying sizes of flightcrews, neither the current § 121.487 nor the regulatory history answer the question of how to apply daily and weekly flight time limitations for these same pilots.

We did not intend, however, for this flexibility to be used by a certificate holder to select less restrictive flight time limitations for a flightcrew by augmenting that flightcrew midway or at the completion of a scheduling period. For example, the flight time limits of 14 CFR 121.481(d) would be circumvented if a certificate holder schedules a two-pilot crew for a series of operations and then augments that two-pilot flightcrew during or at the completion of a 32 hours of flight time within any seven-day period, for the purposes of extending the flightcrew's flight time under the less restrictive framework of § 121.483.

Although we have not clarified the effects of augmenting a two-pilot flightcrew within a seven-day period, in a Legal Interpretation issued August 24, 1999, we examined the application of §§ 121.481 and 121.483 when a two-pilot flightcrew is augmented so as to extend the duty times for the original two-pilot flightcrew members within a 24-hour period. See Legal Interpretation from Donald P. Byrne to James W. Johnson (August 24, 1999). As previously stated, § 121.481 applies when a certificate holder conducts flag operations with a one- or two-pilot crew. When a certificate holder conducts flag operations with a two-pilot crew with one additional flightcrew member, § 121.483 applies. However, in an August 24, 1999 Legal Interpretation, we stated that once an air carrier conducting flag operations schedules a pilot to fly under § 121.481 and the pilot completes the flight time, it would be contrary to the intent of § 121.481 to then schedule that pilot to fly under § 121.483 without providing the rest required within a 24-hour period as required by §§ 121.481(a) or (b). See Legal Interpretation from Donald P. Byrne to James W. Johnson (August 24, 1999) (stating that the regulations prohibit augmenting a two-pilot crew after completing a 55 minute flight, subject to § 121.481, so that those two pilots may then continue on to operate a 9 hour and 50 minute flight subject to § 121.483(b) without providing the rest required by § 121.481(a) or (b)). The August 24, 1999, Legal Interpretation ensures that pilots who have operated as part of a two-pilot crew receive the rest intended by 14 CFR 121.481(a) and (b).

Finally, our knowledge regarding the causes and effects of fatigue has significantly increased since the regulations on flight time limitations were drafted. We now know that the longer one has been awake and the longer one spends on task, the greater the likelihood of fatigue. We also know more about transient and cumulative fatigue. Transient fatigue and cumulative fatigue are conditions brought on by sleep restriction that occurs over one or two days or a series of days respectively, thus making the daily and weekly flight time limitations and rest requirements a significant safeguard to ensure adequately rested pilots.

Therefore, similar to the principle articulated in the August 24, 1999 legal interpretation and considering what we now know about fatigue, to fulfill the intended rest requirements of § 121.481(d), the FAA has tentatively determined that once a flightcrew has completed 32 hours of flight time under 14 CFR 121.481(d), that flightcrew must be provided the rest required by § 121.481(d) before being scheduled under § 121.483. Further, should an air carrier engaged in flag operations use two pilots in both a two-pilot flightcrew and a flightcrew of two pilots and one additional flightcrew member, within any seven consecutive days, then the flight time limitations and rest requirements of § 121.481(d) would apply to the two pilots who have moved between crew complements.^[1]

This clarification would fulfill the intent that pilots serving in two-pilot crews in flag operations are afforded the rest contemplated by § 121.481.

Issued in Washington, DC, on February 22, 2011.

Rebecca B. MacPherson,

Assistant Chief Counsel for Regulations, AGC-200.

Footnotes

1.  § 121.483 does not contain a provision that is parallel to § 121.481(d). Nevertheless, the flight time limits for 48 and 72 hour periods found in § 121.483(b) are less restrictive than the flight time limitations in § 121.481(d).