Court Upholds Government Clarification of Crew Rest Regulation

Air Safety Week, June 10, 2002

The U.S. Court of Appeals for the District of Columbia has rejected an airline industry lawsuit challenging the Federal Aviation Administration's (FAA) interpretation of crew rest regulations.

The court's May 31 decision virtually sweeps aside industry objections to the FAA's stated intention to enforce the regulation requiring that pilots must receive eight hours of actual rest in every 24-hour period. Carriers found in violation of crew-rest rules face fines in the range of hundreds of thousands of dollars, depending upon the number of instances where pilots are on duty more than 16 hours a day.

The court's decision is the latest development in a controversy triggered by Capt. Rich Rubin's Sept. 2000 request to the FAA for an interpretation of the crew rest rules. Rubin, chairman of the flight and duty time committee for the Allied Pilots Association (APA), the union of American Airlines [AMR] pilots, basically asked the FAA if, due to delays, a pilot on a domestic flight would violate crew rest regulations if he was on duty for more than 16 hours a day - in effect, too long to "look back" and find eight hours of continuous rest in the previous 24-hours. In a Nov. 20, 2000 response, FAA assistant general counsel James Whitlow essentially said "yes," in this case the pilot would be in violation. What became a proper noun, the Whitlow Letter decreed that a pilot could not depart on a flight if it would end beyond the 16-hour duty day limit (see ASW, Dec. 11, 2000). Supporters of the Whitlow Letter viewed it as a major step toward greater safety, as it would curtail abuses contributing to fatigued aircrews.

Fast forward to May 14, 2001, when the FAA announced that it would begin enforcing 16-hour duty day codified in section 121.471 of the Federal Aviation Regulations (see ASW, May 28, 2001). The FAA gave the airlines five months, until Nov. 1, 2001, to bring their practices into line.

The Air Transport Association (ATA), joined by the Regional Airlines Association (RAA), sued - charging that the Whitlow Letter was not a mere clarification of the existing rules, but instead was such a dramatic reinterpretation that it constituted new rulemaking, in clear violation of the Administrative Procedures Act. The ATA and the RAA successfully achieved a stay of the FAA's announced enforcement action. However, the Appeals Court utterly rejected the ATA argument.

"The stay has been lifted. However, the FAA has not yet determined the next step on rigorous enforcement. We should have a decision in the next few weeks," said an FAA official. "The FAA will continue routine surveillance of airline operations and will propose civil penalties," the official added, referring to a $285,000 civil penalty against American Airlines for 38 violations.

Sources advise that the ATA has 45 days to appeal the decision to a full panel of Appellate Court judges. The absence of a dissenting view in the 3-0 decision of May 31 suggests that an appeal might not be successful.

Given the 45-day window in which to submit an appeal, plus a court order to enforce the rule seven days after the time for appeal expires, the FAA could begin enforcing the rule July 23. That deadline gives the airlines less than half the time to bring their practices into compliance than the five-month grace period they were given when the FAA originally announced its enforcement plan in 2001.

A larger impasse remains. While the FAA appears to have won final authority to enforce its existing regulations, the flight time/duty time rules need to be revised. The extant rules have remained unchanged since 1985, and they say nothing about circadian rhythm disruption or, as some suggest, a 12-hour limit on the duty day and an eight-hour limit on actual flight time. Modernized, more realistic flight time/duty time regulations are among the National Transportation Safety Board's "Most Wanted" list of safety improvements (see ASW, May 20).

'Structure of the Regulation' Cannot be Ignored

On scheduled vs. actual rest

"Because the Whitlow Letter constitutes the FAA's interpretation of its own regulation, that interpretation must be afforded substantial deference and upheld unless 'plainly erroneous or inconsistent with the regulation.'

"ATA maintains that the phrase 'scheduled completion of any flight segment' ... means that compliance ... turns solely on the legality of the originally established flight schedule irrespective of any flight delay ... ATA's interpretation [is] unavailing ... ATA argues that the term ['scheduled rest'] refers only to a future rest period and cannot justify a retrospective recalculation of rest a crewmember has already taken. Even if the semantic point were valid, which we doubt ... this argument ignores the structure of the regulation itself. Under FAR [Federal Aviation Regulations] 121.471, all rest requirements flow from the 'scheduled completion' of a particular flight segment. The minimum rest requirements ... are all keyed to the 24-hour period before the completion is to occur.