Draft Guidance on Fatigue Evades Accountability

Fatigue is the one area where minimizing it is the joint responsibility of the pilot and the airline, claims the Federal Aviation Administration (FAA). This is a curious arrangement, because this is the only area where the airline is absolved of ultimate responsibility. In every other aspect of operations, such as safety, maintenance, and compliance with regulations, the airline has final responsibility for operation of the airplane in “airworthy” condition.

But sleep deprivation is somehow different than, say, fuel deprivation – taking off with insufficient fuel reserves.

The issue of pilot/airline joint responsibility for being fit for duty has been relegated to the hazy, non-regulatory, non-requirement area of an Advisory Circular (AC). More specifically, a draft AC issued attendant with the proposed rule on pilot duty and rest requirements. (See Air Safety Journal, “Rule Proposed on Pilot Rest Requirements”)

When joint responsibility is propounded by the FAA, it is fair to say that neither party is accountable. To state the matter bluntly, the situation is a cop-out.

In every other aspect of an “airworthy” operation, the airline has the final obligation, and failure can result in millions of dollars in proposed fines or loss of operating certificate. Failure to inspect the airplane structure for metal fatigue or corrosion is not a joint responsibility of the airline and its outsourced maintainers. To ensure that engines and flight controls will work as designed is the airline’s final responsibility. To repair an item on the Minimum Equipment List (MEL) in a timely fashion is the airline’s duty, not that of a third party maintainer. Passengers certainly expect, and assume, that the pilots on the other side of the locked cockpit door have had sufficient rest before assuming duty, otherwise the airline would not permit them to fly.

Yet in the area of human factors, in which fatigue has a pernicious effect on flight safety more dangerous than an unrepaired MEL item, the airline has been given a regulatory free pass by the FAA. This free pass is not by accident. More important, this loophole needs to be closed.

The proposed regulation on pilot duty and rest requirements, placed in the Federal Register 14 September, relegates the issue of pilots commuting to work to a draft AC. This 18-page document, AC 120-FIT, titled “Fitness for Duty,” leaves open a loophole that allowed the two pilots of Colgan Air flight 3407, which crashed 12 February 2009, to commute from Florida and the West Coast, respectively, the night before, and to assume duty in Newark with no more than catnaps on a couch.

Here is what the AC says (partial but salient extracts, with comments in parentheses):

“Managing rest is the means for managing the risk of being unfit for duty because of fatigue. This is the joint responsibility of the air carrier and the crewmember.” (Emphasis added)

“Unlike the vast majority of U.S. workers spanning other industries, crewmembers have the unique opportunity to live in another city or region than the one they are based. The general public does not fully understand the concept principally because they are unfamiliar with airline industry practices.” (The public also puts its trust in the FAA to ensure that airlines only allow rested pilots to fly.)

A pilot commuting to work; hardly inspires confidence.

A pilot commuting to work; hardly inspires confidence.

“[The] commuting crewmember is solely responsible for determining and using the mode of transportation to commute to and from their domicile.” (There is no maximum time outlined for the commute, again placing sole responsibility for fatigue management on the crewmember, with zilch consequences for the airline.)

“If a crewmember’s first day of their trip is scheduled for 10 hours of duty and their commute requires another 4 hours, and assuming they arrive at their domicile 3 hours prior to their report time, the crewmember’s first day could exceed 17 hours without a rest period. Since air carrier schedules are designed to account for the scheduled flight duty time, the additional time associated with a commute may add to the crewmember’s fatigue for that day as well as aggravating the cumulative fatigue for the duration of the crew’s schedule that the carrier had planned.” (The scheduled flight duty time does not include commuting time before duty. Note the use of the weasel word may when commuting is known to contribute to fatigue. Cumulative fatigue is a recognized problem everywhere except in the FAA’s regulations and in the airline’s obligations for the highest level of safety in flight operations.)

Imagine a fatigued pilot managing a complex landing and taxi here, at Midway, after 17 hours on duty.

Imagine a fatigued pilot managing a complex landing and taxi here, at Midway, after 17 hours on duty.

“The FAA defines ‘local area’ to mean any location more than 2 hours transportation, regardless of the mode, to the physical location of the crewmember’s domicile or the location where the flight duty period starts … Travel from outside the local area is commuting … In essence, the 2-hour limit starts from the time the crewmember leaves their home and terminates when they arrive at the physical location of their domicile or the location where their flight duty begins.” (The 2-hour limit is not enshrined in regulations as a hard ceiling on commuting; the expression limit is a misnomer.)

“Air carriers should have a commuting policy to address their expectations from crewmembers commuting to work. Some air carriers currently have such a policy and are aware of those crewmembers who commute, thus these carriers design schedules to mitigate potential risk of fatigue for those commuters. Air carriers should also provide crewmembers with a quiet area at the domicile where they can take advantage of rest before or between flights….” (Note use of non-specific words. Will should be substituted for should; all should replace some, and the word potential must be deleted.)

A pilot rest and sleeping room; spartan, but it provides needed restorative conditions for being alert on duty.

A pilot rest and sleeping room; spartan, but it provides needed restorative conditions for being alert on duty.

 “(Crewmembers) should take advantage of quiet areas … as provided by the air carrier, to reduce fatigue …” (Should the air carrier be so progressive as to have a quiet area with bunks, there is no requirement that crewmembers use them.)

The FAA approves airplane flight manuals, the carrier’s maintenance program and manuals, and specifies which items must be independently inspected, but the issue of commuting and fatigue is left to a non-required advisory circular full of toothless verbiage.

One can readily envision policies to reduce fatigue:

First – limit travel from a domicile to place of duty to two hours, and account for this time in the duty schedule. To be sure, this policy will limit the airlines’ freedom to open or close stations from which flights are dispatched. At a minimum, such a policy would force the airlines to pay for crewmembers’ relocation costs. As a cost of doing business, such payment does not seem unreasonable given that it’s done by many other companies imposing onerous moves on their employees and by the government for its military and public service members.

Second – require airlines to provide a quiet area with bunks for fatigued crewmembers to rest before duty and in between flights. The expense of such a facility is minimal. Having such a tangible recognition of the fatigue problem is overdue. Since some airlines have such facilities, the expense evidently has been cost-justified.

Third – require all airlines to maintain a Flight Operations Quality Assurance Program (FOGA) for all airplanes. Under such a program, any flight deviations from approved procedures are identified from data captured by quick access recorders. Deviations outside of prescribed limits are examined by a committee comprised of airline officers, pilot union representatives, and FAA officials. Pilots involved in the incident are questioned as to why it occurred. Excessive time on task, insufficient rest, schedule, equipment or procedural anomalies are identified by this process, and corrective action is taken.

The absence of a FOQA program allows fatigue-related performance deficiencies to go unexamined and uncorrected. For an airline to receive an FAA operating certificate, one would think a safety-critical item like FOQA would be an essential precondition.

Fourth – drop the draft AC because it is an exercise in evasive – if not entirely absent – accountability. Pilots are airline employees. The airline is ultimately responsible for their performance. As is done for operations and maintenance, these facts also need to be stated by the FAA.