Tuesday, January 10, 2012

More ZZZZZs for Pilots, Not Lawyers

Effective this new year, the Federal Aviation Administration ("FAA") issued a science-based rule aimed at addressing the serious issue of pilot fatigue.  In fact, pilot fatigue has been on the "Most Wanted List" of the National Transportation Safety Board ("NTSB") for more than twenty years, since 1990.

Under the new rule, pilots would be required to get at least 10 hours of off-duty time between flight schedules, which transportation officials said would give them at least the opportunity to get eight hours of sleep before they get to the cockpit.  The 300+ page rule, provides, in part:

This final rule addresses fatigue risk in several ways. The underlying philosophy of the rule is that no single element of the rule mitigates the risk of fatigue to an acceptable level; rather, the FAA has adopted a system approach, whereby both the carrier and the pilot accept responsibility for mitigating fatigue.  The carrier provides as environment that permits sufficient sleep and recovery periods, and the crewmembers take advantage of that environment.  Both parties must meet their respective responsibilities in order to adequately protect the flying public.

Interestingly, the rule does not apply to cargo companies like UPS and Federal Express:

The final rule does not apply to all-cargo operations, although those carriers have the ability to fly under the new rules if they so chose.

Regulators are reported as saying that including cargo haulers like UPS and FedEx Corp would cost industry an extra $300 million over 10 years. The regulation is expected to cost passenger airlines $297 million over the same period.  Unionized pilots for cargo companies have since instituted a lawsuit to challenge that carve-out in the final rule.

The NTSB regards the new pilot fatigue rule as "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 are ten paying customers on board or a 100, whether the payload is passengers or pallots."

As an final note, the issue of pilot fatigue is not limited to being a safety issue.  Indeed, the issue has been a source of litigation between some airlines and their pilot employees.  For example, in a recent case, United Air Lines, Inc. v Air Line Pilot Ass'n, 2008 WL 4936847 (N.D. Ill. 2008), a federal trial court found "evidence of an extraordinary increase in fatigue calls" apparently designed to interrupt airline operations while labor and management negotiated a collective bargaining agreement.  Just last year a federal court found that such behavior violates the Railway Labor Act by cloaking a slowdown with a safety issue.  See US Airways, Inc. v. Airline Pilots Ass'n, 2011 WL 4485795 (W.D.N.C. 2011).

So much for fatigue rules for aviation lawyers.

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