UPS Pilots File An Appeals Challenge To FAA Final Flight & Duty Rule


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UPS Pilots File An Appeals Challenge To FAA Final Flight & Duty Rule

By Shane Nolan

December 27, 2011 – The Independent Pilots Association (UPS pilots) filed a Petition for Review in the U.S. Court of Appeals for the D.C. Circuit in order to challenge FAA's exclusion of cargo operations from the final flight and duty time rule issued last week. 

“The IPA seeks to have cargo operations included within the scope of the rule because of the safety benefits provided by the rule. IPA does not seek to delay implementation of these important safety benefits to passenger operations,” said IPA General Counsel William Trent. He stated that the Association, representing the 2,700 pilots flying for UPS, would challenge the rule on multiple substantive and procedural grounds. 

 “The internal inconsistency of the final rule is remarkable. For example, the FAA states that current regulations do not adequately address the risk of fatigue (Rule p.19,) and that the maintenance of the status quo presents an ‘unacceptably high aviation accident risk” (Rule p. 259.). 

Yet two of the very factors that the FAA cites as exacerbating the risk of pilot fatigue operating at night and crossing multiple time zones (Rule p.5) are more present in cargo operations than in passenger operations,” said Trent. “The FAA’s only basis for excluding cargo rests on a cost benefit analysis,” said Trent.  “Yet, the Agency does not articulate how it arrived at either the projected costs or benefits of applying the final rule to cargo operators. The rule is wholly and utterly opaque when it comes to providing any factual support for the cost benefit conclusions reached,” he added.  

“Procedural irregularities are present as well,” said Trent. “Cargo operators were allowed to supplement the record after the public NPRM comment period was officially closed. Accepted into the closed record was unsupported costing data provided by carriers.  This data has not been subject to public scrutiny or review,” Trent added. In January, IPA will file additional court papers including a preliminary statement of issues it expects to raise in the case. 

NTSB Chairman Deborah A.P. Hersman said “Fatigue has been on the NTSB's Most Wanted List of transportation safety improvements since 1990. Over the first century of powered flight, countless accidents trace pilot fatigue as a contributing factor. This is why the NTSB is so pleased that the FAA .. issued a long-awaited science-based rule for flight and duty time. Secretary LaHood and former FAA Administrator Babbitt have worked for years to shepherd this contentious rule through the process. We applaud the leadership of DOT and FAA for bringing it across the finish line. 

“While this is not a perfect rule, it is a huge improvement over the status quo for large passenger-carrying operations. Yet, we are extremely disappointed that the new rule is limited to Part 121 carriers. A tired pilot is a tired pilot, whether there are 10 paying customers on board or 100, whether the payload is passengers or pallets."


“As the FAA said in its draft, "Fatigue threatens aviation safety because it increases the risk of pilot error that could lead to an accident." This is particularly a concern for crews that fly "on the back side of the clock." We look forward to working with the FAA and the aviation community to support the rule's essential education and training components and to identify areas where additional measures are needed”.

U.S House Chairman of the Transportation and Infrastructure Committee, John L. Mica (R-FL) said “While the final rule provides improvement for aviation safety, pilots must take personal responsibility for coming to work rested and fit for duty. The government cannot put a chocolate on every one of their pillows and tuck them in at night.”

Key components of this final rule for commercial passenger flights include: Varying flight and duty requirements based on what time the pilot’s day begins. The new rule incorporates the latest fatigue science to set different requirements for pilot flight time, duty period and rest based on the time of day pilots begin their first flight, the number of scheduled flight segments and the number of time zones they cross. The previous rules included different rest requirements for domestic, international and unscheduled flights. Those differences were not necessarily consistent across different types of passenger flights, and did not take into account factors such as start time and time zone crossings.

Flight duty period. The allowable length of a flight duty period depends on when the pilot’s day begins and the number of flight segments he or she is expected to fly, and ranges from 9-14 hours for single crew operations. The flight duty period begins when a flightcrew member is required to report for duty, with the intention of conducting a flight and ends when the aircraft is parked after the last flight. It includes the period of time before a flight or between flights that a pilot is working without an intervening rest period. Flight duty includes deadhead transportation, training in an aircraft or flight simulator, and airport standby or reserve duty if these tasks occur before a flight or between flights without an intervening required rest period.

Flight time limits of eight or nine hours. The FAA limits flight time – when the plane is moving under its own power before, during or after flight – to eight or nine hours depending on the start time of the pilot’s entire flight duty period.

10-hour minimum rest period.The rule sets a 10-hour minimum rest period prior to the flight duty period, a two-hour increase over the old rules. The new rule also mandates that a pilot must have an opportunity for eight hours of uninterrupted sleep within the 10-hour rest period.

New cumulative flight duty and flight time limits.The new rule addresses potential cumulative fatigue by placing weekly and 28-day limits on the amount of time a pilot may be assigned any type of flight duty. The rule also places 28-day and annual limits on actual flight time. It also requires that pilots have at least 30 consecutive hours free from duty on a weekly basis, a 25 percent increase over the old rules.

Fitness for duty. The FAA expects pilots and airlines to take joint responsibility when considering if a pilot is fit for duty, including fatigue resulting from pre-duty activities such as commuting. At the beginning of each flight segment, a pilot is required to affirmatively state his or her fitness for duty. If a pilot reports he or she is fatigued and unfit for duty, the airline must remove that pilot from duty immediately.

Fatigue Risk Management System. An airline may develop an alternative way of mitigating fatigue based on science and using data that must be validated by the FAA and continuously monitored.

In 2010, Congress mandated a Fatigue Risk Management Plan (FRMP) for all airlines and they have developed these plans based on FAA guidance materials. An FRMP provides education for pilots and airlines to help address the effects of fatigue which can be caused by overwork, commuting, or other activities. Airlines will be required to train pilots about the potential effects of commuting.

Required training updates every two years will include fatigue mitigation measures, sleep fundamentals and the impact to a pilot’s performance. The training will also address how fatigue is influenced by lifestyle – including nutrition, exercise, and family life – as well as by sleep disorders and the impact of commuting.


The estimated cost of this rule to the aviation industry is $297 million but the benefits are estimated between $247- $470 million. Covering cargo operators under the new rule would be too costly compared to the benefits generated in this portion of the industry. Some cargo airlines already have improved rest facilities for pilots to use while cargo is loaded and unloaded during night time operations. The FAA encourages cargo operators to opt into the new rule voluntarily, which would require them to comply with all of its provisions.

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