Gregory J. Reigel
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May 10, 2017

Are You Fit For Duty?

If you are a flightcrew member for an air carrier operating under 14 C.F.R. Part 121 you know that 14 C.F.R. Part 117 contains flight, duty, and rest regulations that apply to all Part 121 passenger operations. One specific regulation, Section 117.5(d), requires a flightcrew member to “affirmatively state that he or she is fit for duty prior to commencing flight.” Section 117.3 defines “fit for duty” as “physiologically and mentally prepared and capable of performing assigned duties at the highest degree of safety.” What does that mean?

Unfortunately, no objective science-based standard currently exists for measuring fatigue levels. As a result, Section 117.5 doesn’t say just how fatigued a flightcrew member must be in order for him or her to be “unfit for duty.” Rather, the regulation simply states that an individual flightcrew member is “fit for duty” if he or she is capable of safely performing his or her assigned duties. According to the FAA, this determination must be made by each individual flightcrew member based upon a variety of factors, such as the length and difficulty of the flight duty assignment, time of day, and the flightcrew member's self-knowledge of how he or she deals with different levels of fatigue.

Which means flightcrew members’ fit for duty determinations are subjective. But, according to the FAA, this subjectivity “is mitigated by the fact that flightcrew members will undergo fatigue education and awareness training, which will increase each flightcrew member's ability to self-assess his or her fatigue levels.”

So, how does this apply in specific situations? For example, what if the flightcrew member is slightly fatigued at the end of a flight duty period (“FDP”)? Does that mean the flightcrew member should not have accepted the flight assignment? The FAA says “no.” Given the various individual factors that go into a fitness for duty determination, the FAA will not categorically say that a slight amount of fatigue that appears at the end of an FDP would always render a flightcrew member unfit for duty. As long as the flightcrew member is able to affirmatively state at the beginning of the FDP that he or she is fit for duty, then the flightcrew member may accept the assigned flight duty.

What about when the flightcrew member has been awake for 16, 18 or even 24 continuous hours prior to accepting the assigned flight duty? If the flightcrew member certifies that he or she is fit for duty in that situation is that a violation of the regulation? Here again, the FAA says “not necessarily.” Although it is significantly more likely that a person who has been awake for such an extended period of time will not be fit for duty, the regulations do not necessarily preclude the flightcrew member from accepting an assigned flight duty under those circumstances. The flightcrew member must still make an individualized determination and consider, as one factor along with others, the amount of time that the flightcrew member has been continuously awake.

Another common situation arises when an FDP involves more than one flight segment. If the flightcrew member is fit for duty at the beginning of the first flight segment but later determines he or she is not fit for duty before starting a subsequent flight segment during that FDP, then what? Since Section 117.5(d) requires a flightcrew member to reassess whether he or she is fit for duty prior to each flight segment, in that situation the flightcrew member would not be permitted to fly the subsequent flight segment. Similarly, if a flightcrew member reports for an FDP and is fit for duty at that time but that FDP is later extended, the flightcrew member must then reassess whether he or she can continue to serve on the extended FDP.

Thus, in order to be “fit for duty”, flightcrew members must decide, both at the beginning of an FDP and during that FDP that they are mentally and physically prepared and capable of safely performing their assigned duties and then take any necessary steps to comply with the rule. Flightcrew members should use their best judgment to make that determination and then act accordingly.



Posted by Greg

May 04, 2017

How To Decide Whether To Conduct A Reasonable Cause/Suspicion Drug or Alcohol Test

If you are an aviation employer who employs safety sensitive employees, you know 14 C.F.R. § 120.109(d) requires that you drug test an employee when you reasonably suspect that employee of having used a prohibited drug. Similarly, 14 C.F.R. § 120.217 requires an employee to submit to an alcohol test when the employer reasonably suspects the employee of misusing alcohol contrary to 14 C.F.R. § 120.37. In order to make that decision, you must have a reasonable and articulable belief that the employee is using a prohibited drug. To do that, you need to look at the employee's specific contemporaneous physical, behavioral, or performance indicators of probable drug or alcohol use. But what does this really mean? Well, fortunately, the FAA has a form for that!

The FAA has a "Reasonable Cause/Reasonable Suspicion Testing Form" employers may use to not only assist with making the reasonable cause/suspicion determination, but also to document that determination once made for the employer's file. The Form includes a number of categories for the types of observations an employer must make in order to determine whether reasonable cause/suspicion exists for the employer to require an employee to submit to a drug or alcohol test. The categories include:
  • Appearance;
  • Behavior/Demeanor;
  • Motor Skills;
  • Speech; and
  • Odor.
Within each of these categories, the Form also provides a number of "check the box" choices for characteristics/behaviors that are indicative of drug or alcohol use. The employer simply needs to make the observations, check the corresponding boxes, and then make the decision whether sufficient indicia are present to support conducting a test. The Form includes 48 different observations an employer may make that would support conducting a reasonable cause/suspicion drug or alcohol test.

Employers are not required to use the Form. However, the Form provides an easy way to not only make the determination, but also to document and record the basis for the determination. And, as we all know, keeping appropriate drug and alcohol testing program records is both required and necessary to keep the FAA happy if/when it decides to audit your program.

Posted by Greg

April 25, 2017

How To Choose Between Operating A Business Aircraft Under Part 91 Versus Part 135

If you own a business aircraft, you may be wondering whether you should operate that aircraft under Part 91 or Part 135 of the Federal Aviation Regulations. In order to make that decision, you need to consider the benefits and limitations of each set of regulations. The decision can be complicated and usually requires a detailed analysis of the facts of your situation.

For a discussion of the restrictions and regulatory requirements for operating under each part, as well as the risk management perspective associated with each, please read my latest article on the topic: What Is The Difference Between Owning And Operating An Aircraft Under Part 91 Versus Part 135?

Posted by Greg

April 14, 2017

What Is The Difference Between An "Inspection" And An "Overhaul"?

Do you know the difference between an "inspection" and an "overhaul"? Does it matter? Well, depending upon the type of operations you conduct (e.g. under Part 91, 121, 125 or 135), yes, it does. In fact, the difference between the two may determine whether you have to perform a certain item of maintenance or not. And that could either cost, or save, you money.

The FAA recently issued a National Policy (Order 8900.410) clarifying inspection and overhaul requirements under Part 91. If you aren't clear about the distinction between "inspection" and "overhaul", in addition to reading the FAA's Order, please read my latest article on the topic: What Is The Difference Between An "Inspection" And An "Overhaul"?.

Posted by Greg

April 01, 2017

What Happens if You Ignore the Terms of Your Aircraft Insurance Policy?

If you are involved in an aircraft accident or incident, you want to make sure you have insurance coverage if you need it. In order to make sure you will have coverage, you need to understand the terms of your aircraft insurance policy and comply with any conditions or limitations in the policy. If you don't, you may end up in a dispute with your insurer over whether it will cover any claims or losses in connection with the accident or incident.

Unfortunately, the estate of one aircraft owner found this out the hard way. You can read more about this case and why it is necessary to comply with the terms and conditions of your aircraft insurance policy in my latest article: Ignore the Terms of Your Aircraft Insurance Policy at Your Own Risk.

Posted by Greg

March 16, 2017

What Is The FAA's Regulatory Consistency Communications Board?

As you may know, the various FAA offices and inspectors within those offices routinely provide responses/guidance on issues that may be inconsistent with other FAA offices and even with other inspectors in the same office. In the past, the only way to really resolve the inconsistency was to request a formal legal interpretation from the FAA's Office of Chief Counsel. However, in 2012 the FAA Reauthorization created an FAA/Industry Committee, the “Consistency of Regulatory Interpretation Aviation Rulemaking Committee (CRI ARC)” to address this issue.

On November 28, 2012 the CRI ARC issued a Report that recommended that “the FAA establish a Regulatory Consistency Communication Board (RCCB) comprising representatives from AFS, AIR, and the Office of Chief Counsel (AGC) that would provide clarification to FAA personnel and certificate/approval holders and applicants on questions related to the application of regulations.” Based upon that recommendation, the FAA created its Regulatory Consistency Communications Board ("RCCB").

So, how does the RCCB work? Well, when one of these situations arises in which a stakeholder (e.g. a pilot, mechanic, air carrier, repair station etc.) is receiving inconsistent information from the FAA regarding application of the regulations, that stakeholder is able to submit the issue/question to the RCCB and request that it clarify application of the regulations at issue to remove/resolve the FAA's inconsistent application of those regulations. The members of the RCCB then convene and issue a resolution of the issue with each of AFS, AIR and AGC concurring in that resolution.

Although it has started slow, it appears that the RCCB is delivering as anticipated. So far it has issued at least two memorandums addressing issues presented to it by stakeholders. In one case the RCCB answered the question of whether the revision dates of maintenance manuals are required to be listed in the maintenance record entry required 14 CFR § 43.9. In another case it clarified that Type Certificate Data Sheets (TCDS) are regulatory and are included as part of the type design.

So, now if you find yourself in a situation in which you are receiving conflicting positions from the FAA regarding application of the regulations, you have two places you can go to try and get a definitive answer: the FAA's Office of Chief Counsel or the RCCB. And at some point in the future, hopefully, the FAA will also create a Master Source Guidance System, another recommendation from the CRI ARC. But it is unclear if, or when, that may happen.

Posted by Greg

February 28, 2017

How Does The FAA Calculate A Civil Penalty?

As you may have seen in the past, when the FAA wants to send a message or make a statement regarding its proposed assessment of a civil penalty, oftentimes it will issue a press release. In many instances these press releases announce proposed civil penalties in the hundreds of thousands, if not millions, of dollars for alleged regulatory violations.

Have you ever wondered how the FAA comes up with those numbers? Fortunately, or unfortunately, depending upon your perspective, the FAA doesn't just pull a number out of a hat. Rather, the FAA has guidance it is required to use when it calculates a proposed civil penalty. For a discussion of this guidance and how the FAA is supposed to use it in determining the amount of a civil penalty, please read my latest article on the topic: How Does The FAA Calculate A Civil Penalty?.

Posted by Greg

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