AVIATION (OSHA) / Recent legislation (FAA Modernization and Reform Act of 2012) requires the Federal Aviation Administration to develop a statement of policy about “the circumstances in which the requirements of the [U.S. Department of Labor Occupational Safety and Health Administration] OSHA may be applied to crewmembers while working in an aircraft”. This FAA “Policy Statement” does not state policy as much as it invites comment.

“Occupational Safety and Health Standards for Aircraft Cabin Crewmembers”

August 27, 2013. Notice Of Availability; Final Policy And Disposition Of Comments.

This announcement details various comments received from industry stakeholders, together with FAA and OSHA replies.

Text of “Policy Statement on Occupational Safety and Health Standards for Aircraft Cabin Crewmembers” available here.

AVIATION (DRUG & ALCOHOL TESTING) / “This rulemaking allows air carrier operators and commuter or on-demand operators that also conduct commercial air tour operations to combine the drug and alcohol testing required for each operation into one testing program. The current rule requires those operators to conduct separate testing programs for their commercial air tour operations.”

“Combined Drug and Alcohol Testing Programs.”

Final Rule. July 15, 2013.

The current rule, “results in an unnecessary duplication of effort. The intended effect of this rulemaking is to decrease operating costs by eliminating the requirement for duplicate programs while maintaining the level of safety intended by existing rules. This final rule also clarifies existing instructions within the rule, corrects a typographical error, and removes language describing a practice that has been discontinued.”

“ … [I]n May 2009, the FAA published the Drug and Alcohol Testing Program rule. That rule moved the drug and alcohol testing regulations into a new part 120.

“Part 120 of Title 14 of the Code of Federal Regulations (CFR) requires the establishment of a drug and alcohol testing program designed to prevent accidents and injuries that result from the use of prohibited drugs and the misuse of alcohol. Specifically, the rule requires three groups of operators to implement a drug and alcohol testing program:

  • Part 119 certificate holders authorized to conduct part 121 operations.
  • Part 119 certificate holders authorized to conduct part 135 operations.
  • Commercial air tour operators as defined in § 91.147.

“These requirements are meant to ensure that any person who performs safety-sensitive functions for these operators, either directly or by contract (including subcontractor at any tier), is subject to drug and alcohol testing.

“Under the current rules, operators who are conducting a part 121 or part 135 operation and commercial air tour operations must administer separate drug and alcohol testing programs. Numerous operators have petitioned the FAA for an exemption from the requirement to maintain two separate drug and alcohol testing programs because having two programs often requires testing the same employees twice. This duplication adds administrative and financial burdens for the operator but it does not increase safety.

Since 2008, the FAA has granted approximately 135 exemptions allowing operators to implement a single testing program. Given the large number of exemptions that the Agency has granted, and the need to renew them every two years, the FAA believes it is appropriate to simply amend the existing rule. This approach relieves operators from seeking an operator-specific exemption. In granting these exemptions, the FAA has recognized that, in most cases, the same employees and equipment are used interchangeably between the part 121 or part 135 operation and its commercial air tour operation. Therefore, the FAA has found that when a part 119 certificate holder operates both a part 121 or a part 135 operation and a § 91.147 commercial air tour operation, combining the two testing programs maintains a level of safety equivalent to that provided by the current regulations. Under one testing program, employees are still subject to drug and alcohol testing in accordance with part 120. Any existing exemptions for combined testing programs held by part 121 or part 135 operators that also conduct § 91.147 operations will expire on the effective date of this rule. Those certificate holders with current exemptions need not take any action to comply with the requirements outlined in this rule.”

AVIATION (PILOT QUALIFICATIONS) / Now a second-in-command pilot (first officer) in domestic, flag, and supplemental operations must hold an airline transport pilot certificate and an airplane type rating for the aircraft to be flown. An airline transport pilot certificate requires that a pilot be 23 years of age and have 1,500 hours total time as a pilot. This is the so-called new “co-pilot” rule.

“Pilot Certification and Qualification Requirements for Air Carrier Operations.”

Final Rule. July 15, 2013.

This was the “co-pilot” rule the Federal Aviation Administration announced last week, to news stories with titles like “New, Tougher Co-Pilot Rule Aims To Boost Plane Safety.”

“This action creates new certification and qualification requirements for pilots in air carrier operations. As a result of this action, a second in command (first officer) in domestic, flag, and supplemental operations must now hold an airline transport pilot certificate and an airplane type rating for the aircraft to be flown. An airline transport pilot certificate requires that a pilot be 23 years of age and have 1,500 hours total time as a pilot. Pilots with fewer than 1,500 flight hours may qualify for a restricted privileges airline transport pilot certificate beginning at 21 years of age if they are a military-trained pilot, have a bachelor’s degree with an aviation major, or have an associate’s degree with an aviation major. The restricted privileges airline transport pilot certificate will also be available to pilots with 1,500 flight hours who are at least 21 years of age. This restricted privileges airline transport pilot certificate allows a pilot to serve as second in command in domestic, flag, and supplemental operations not requiring more than two pilot flightcrew members. This rule also retains the second-class medical certification requirement for a second in command in part 121 operations. Pilots serving as an air carrier pilot in command (captain) must have, in addition to an airline transport pilot certificate, at least 1,000 flight hours in air carrier operations. This rule also adds to the eligibility requirements for an airline transport pilot certificate with an airplane category multiengine class rating or an airline transport pilot certificate obtained concurrently with a type rating. To receive an airline transport pilot certificate with a multiengine class rating a pilot must have 50 hours of multiengine flight experience and must have completed a new FAA-approved Airline Transport Pilot Certification Training Program. This new training program will include academic coursework and training in a flight simulation training device. These requirements will ensure that a pilot has the proper qualifications, training, and experience before entering an air carrier environment as a pilot flightcrew member.” 

Federal Aviation Administration (Pilot Rest Requirements / International) / FAA seeks public comments on its draft interpretation regarding nonstop international supplemental operations scheduled for longer than 12 hours.

“… Additionally, this draft interpretation discusses the appropriate international flight time limitations that would apply to the operation. As discussed in the draft interpretation, the FAA finds that the operation of such flights would be precluded under the flight time limitations of the “U.S. mainland rules” found in the supplemental flight and duty rules. However, the operation could be conducted under the “international rules” provisions of our regulations.” 

“The FAA publishes draft legal interpretations when the matter in question is likely to be highly controversial or the likely answer has the potential to significantly and adversely affect long-standing practices that regulated parties have been engaged in, reasonably believing that these practices were consistent with FAA regulations. The intent is not to seek input on whether the FAA is correct—the FAA has the responsibility for interpreting its regulations. Rather, the reason for publishing the draft interpretation for comment is to see whether there may be unintended consequences for regulated parties that merit a further examination of how the agency’s regulatory provisions should be applied in conjunction with agency policy and guidance material. 

“We are issuing this draft interpretation because it has come to our attention that supplemental air carriers might be misinterpreting and misapplying the regulations governing flight time limitations for supplemental operations to operate international flight segments longer than 12 hours by reading § 121.509 of title 14, Code of Federal Regulations in isolation, without also complying with § 121.503(a) or, in the alternative, without adequate sleeping facilities for the flight crew as required under § 121.523(b). As discussed below, such a reading fails to consider the full meaning of the FAA’s regulations.” 

“Interpretation of the Rest Requirements of Nonstop International Supplemental Operations” 

April 2, 2013. Notice of draft interpretation.

AVIATION (PILOTS & CREW FATIGUE) / This “clarification” responds to various questions posed after the FAA issued its final rule on January 4, 2012, that amends the existing flight, duty and rest regulations applicable to certificate holders and their flightcrew members.

See past post of this blog here.

March 5, 2013, Clarification.

“The FAA published a final rule on January 4, 2012, that amends the existing flight, duty and rest regulations applicable to certificate holders and their flightcrew members. Since then, the FAA has received numerous questions about the new flight, duty, and rest rule. This is a response to those questions.”

Note that this is a voluminous entry in the Federal Register. 

Questions answered relate to the following topics raised: 

“A. Applicability

i. Applicability of Previous Flight, Duty, and Rest Interpretations to Part 117

ii. Voluntary Implementation of Part 117 Before January 4, 2014

iii. Part 91 Flights

B. Definitions

i. Deadhead Transportation

1. Length of Deadhead

2. Transportation to a Suitable Accommodation

ii. Duty

1. Collective Bargaining Agreement Requirement

2. Limitations on Duty

iii Flight Duty Period (FDP)

1. Type of Duty That Is Included in an FDP

2. Meaning of “Futher Aircraft Movement”

iv. Physiological Night’s Rest

v. Rest Facility

vi. Suitable Accommodation

C. Fitness for Duty

i. Means of Certification

ii. Certifying as to Specific Flight Segments

D. Fatigue Risk Management System (FRMS)

i. Scope of an FRMS

ii. Implementing an FRMS Before January 4, 2014

E. Fatigue Education and Awareness Training Program

i. Whether the Program Has To Be Approved or Accepted

ii. Whether Training Needs To Begin Before January 4, 2014

iii. Completion Date for Initial Training

iv. Credit for Previously-Completed Training

F. Flight Time Limitations

i. Taking Off Knowing That the Flight Will Exceed Flight Time Limits

ii. Flight Time During a Taxiing Delay

iii. Repositioning From Customs to a Domestic Gate

G. Flight Duty Period: Unaugmented Operations

i. Adjusting FDP Start Time

ii. Adjusting the Number of Flight Segments

H. Split Duty

i. Extending the 14-hour Split Duty Limit

ii. Actual Split Duty Rest Exceeding Scheduled Rest

iii. Time Zone on Which Split Duty Rest is Based

I. Flight Duty Period: Augmented Operations

i. Three-Flight-Segment Limit

ii. Mixed Operations

iii. Time Each Augmented Flightcrew Member Spends at the Controls

iv. Broken Rest Facility

J. Flight Duty Period Extensions

i. Determining Whether Pre or Post-Takeoff FDP Extension Applies

ii. Diversions and FDP Extensions

iii. Exceeding the Cumulative Limits

iv. PIC Concurrence in FDP Extension

v. Using Multiple Extensions

K. Reserve

i. Airport Reserve

ii. Short-Call Reserve

1. Determining What FDP Limit Applies for Each FDP + Reserve Limit

2. Rest Period Before Being Assigned A RAP

3. Early Termination of a RAP

4. Additional Questions

iii. Long-Call Reserve

L. Cumulative Limitations

M. Rest Period

i. Sleep Opportunity

1. Definition of Sleep Opportunity

2. Interruptions to the Sleep Opportunity That Are Not Caused by Carrier

ii. Requirement To Perform a Task During a Rest Period

iii. One-Phone Call Rule

iv. Point of Reference for the 30-Hour Rest Period

v. Prospective Identification of a Rest Period

vi. Assigning an FDP

vii. Requirements of § 117.25(d)

viii. Deadheading

N. Consecutive Nighttime Operations

i. Applicability to Augmented Operations

ii. Applicability to FDPs That Begin During the WOCL

iii. How Often the Mid-Duty Break Must Be Provided

iv. Whether Reserve Triggers § 117.27

O. Applicability to Flight Attendants.”

AVIATION / Administrative Action (Notice of Policy) – FAA issues notice policy on volunteer pilots operating charitable medical flights in response to FAA Modernization and Reform Act of 2012.

Last year’s statutory change prompts this FAA policy notice:

The FAA is issuing this notice of policy to describe its policy for volunteer pilots operating charitable medical flights. Charitable medical flights are flights where a pilot, aircraft owner, and/or operator provides transportation for an individual or organ for medical purposes. This notice of policy is in response to Section 821 of Public Law 112-95, Clarification of Requirements for Volunteer Pilots Operating Charitable Medical Flights. 

February 22, 2013, Notice of Policy.

AVIATION / Pilots – Flightcrew Member Duty and Rest Requirements; Technical Correction

“The FAA is correcting the final flightcrew member duty and rest rule published on January 4, 2012. In that rule, the FAA amended its existing flight, duty and rest regulations applicable to certificate holders and their flightcrew members operating certain domestic, flag, and supplemental operations. This document corrects several issues requiring a technical correction in the codified text of the final flightcrew member duty and rest rule.” 

February 6, 2013, Final rule, Technical correctionContinue reading

EMPLOYMENT (INJURY & WORKERS COMPENSATION) / Pilot who was operating helicopter when helicopter crashed and injured claimants was a co-employee of claimants and performing the duty of the employer to provide safe transportation, and pilot thus could claim immunity from claimants’ tort claims under exclusive remedy provision of workers’ compensation statute.

“At issue are Ark. Code Ann. §§ 11-9-410 and 11-9-105, and this court’s interpretation of the terms “third-party” and “co-employees” acting as the employer under the statutes.”

Miller v. Enders, 2013 WL 316151 (Arkansas Supreme Court,  January 28, 2013). Free copy available here. Continue reading

AVIATION / “Prohibition on Personal Use of Electronic Devices on the Flight Deck”.

January 14, 2013, Notice of Proposed Rulemaking.

“The proposed rule would prohibit flightcrew members in operations under part 121 from using a personal wireless communications device or laptop computer for personal use while at their duty station on the flight deck while the aircraft is being operated. This rule, which conforms FAA regulations with recent legislation, is intended to ensure that certain non-essential activities do not contribute to the challenge of task management on the flight deck or a loss of situational awareness due to attention to non-essential tasks.” 

REMARKS: “AVIATION / FAA issues revised regulatory analysis to new (as of a year ago) flight crew duty and rest regulation that apply to Part 121 (passenger airline) operations, and allow application to cargo-only on a voluntary opt-in basis. Meanwhile litigation to strike down new rule continues in DC Circuit.”

From New Rules & Decisions week of December 10, 2012. 

(December 12, 2012, Availability Of Initial Supplemental Regulatory Impact Analysis ):

“REMARKS” this week relates to only one entry in this week’s “New Rules & Decisions”. This FAA action and the related litigation involve three features that are worth our understanding:

1. Regulation-versus-collective bargaining: The FAA’s duty and rest requirements for passenger airline pilots address through regulation what is quite often determined through collective bargaining: Work rules.

2. “Get off our back!”-versus-“Include us too!”: Unlike the hours-of-service litigation between the FMCSA and the trucking industry where management plaintiffs make a court challenge to a rule to resist application of its terms, here labor / employee plaintiffs make a court challenge arguing that the FAA should have included them in the terms the FAA applied to passenger airline pilots.

3. Court challenge-versus-comment to agency: Once the FAA issued its “final rule” cargo-only pilots union’s sole viable means to change the rule was to a court challenge (Petition for Review to U.S. Court of Appeals for the D.C. Circuit). With last week’s FAA announcement of its Initial Supplemental Regulatory Impact Analysis the FAA will entertain comments – and at the same time the U.S. Circuit Court of Appeals for the D.C. Circuit retains jurisdiction of the case initiated by the petition for review.

Comment:  Continue reading