Interpretation of Duty and Rest Provisions for Maintenance Personnel, 21270-21272 [2011-9236]
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Florence Municipal Airport, Florence,
OR. Controlled airspace is necessary to
accommodate aircraft using the new
RNAV (GPS) standard instrument
approach procedures at Florence
Municipal Airport, Florence, OR. This
action would enhance the safety and
management of aircraft operations at
Florence Municipal Airport, Florence,
OR.
Class E airspace designations are
published in paragraph 6005, of FAA
Order 7400.9U, dated August 18, 2010,
and effective September 15, 2010, which
is incorporated by reference in 14 CFR
part 71.1. The Class E airspace
designation listed in this document will
be published subsequently in this
Order.
The FAA has determined this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current.
Therefore, this proposed regulation; (1)
is not a ‘‘significant regulatory action’’
under Executive Order 12866; (2) is not
a ‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is certified this proposed rule, when
promulgated, would not have a
significant economic impact on a
substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the U.S. Code. Subtitle 1,
Section 106, describes the authority for
the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more
detail the scope of the agency’s
authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of the airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it establishes
controlled airspace at Florence
Municipal Airport, Florence, OR.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the
authority delegated to me, the Federal
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Aviation Administration proposes to
amend 14 CFR part 71 as follows:
DATES:
PART 71—DESIGNATION OF CLASS A,
B, C, D AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
ADDRESSES:
1. The authority citation for 14 CFR
part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR Part 71.1 of the Federal Aviation
Administration Order 7400.9U,
Airspace Designations and Reporting
Points, dated August 18, 2010, and
effective September 15, 2010 is
amended as follows:
Paragraph 6005 Class E airspace areas
extending upward from 700 feet or more
above the surface of the earth.
*
*
*
*
*
ANM OR E5 Florence, OR [New]
Florence Municipal Airport, OR
(Lat. 43°58′58″ N., long. 124°06′41″ W.)
That airspace extending upward from 700
feet above the surface within 3-mile radius of
Florence Municipal Airport.
Issued in Seattle, Washington, on April 7,
2011.
Christine Mellon,
Acting Manager, Operations Support Group,
Western Service Center.
[FR Doc. 2011–9233 Filed 4–14–11; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. FAA–2011–0367]
Interpretation of Duty and Rest
Provisions for Maintenance Personnel
Federal Aviation
Administration (FAA), DOT.
ACTION: Proposed interpretation.
AGENCY:
This draft letter of
interpretation addresses a request by the
Aeronautical Repair Station Association
(ARSA) to rescind a letter of
interpretation issued May 18, 2010
which clarified what activities may
constitute duty for maintenance
personnel and the application of the rest
provisions under 14 CFR 121.377. The
FAA requests comment on the May 18,
2010 proposed response to United
Technologies Corporation.
SUMMARY:
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Send your comments on or
before June 14, 2011.
You may send comments
identified by Docket Number FAA–
2011–0367 using any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the online instructions for sending your
comments electronically.
• Mail: Send comments to Docket
Operations, M–30; U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., Room W12–140, West
Building Ground Floor, Washington, DC
20590–0001.
• Hand Delivery or Courier: Take
comments to Docket Operations in
Room W12–140 of the West Building
Ground Floor at 1200 New Jersey
Avenue, SE., Washington, DC, between
9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
• Fax: Fax comments to Docket
Operations at 202–493–2251.
For more information on the
rulemaking process, see the
SUPPLEMENTARY INFORMATION section of
this document.
Privacy: We will post all comments
we receive, without change, to https://
www.regulations.gov, including any
personal information you provide.
Using the search function of the docket
Web site, anyone can find and read the
electronic form of all comments
received into any of our dockets,
including the name of the individual
sending the comment (or signing the
comment for an association, business,
labor union, etc.). You may review
DOT’s complete Privacy Act Statement
in the Federal Register published on
April 11, 2000 (65 FR 19477–78) or you
may visit https://DocketsInfo.dot.gov.
Docket: To read background
documents or comments received, go to
https://www.regulations.gov at any time
and follow the online instructions for
accessing the docket or Docket
Operations in Room W12–140 of the
West Building Ground Floor at 1200
New Jersey Avenue, SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Anne Bechdolt, Attorney, Regulations
Division, Office of Chief Counsel (AGC–
220), Federal Aviation Administration,
800 Independence Avenue, SW.,
Washington, DC, 20591; e-mail:
Anne.Bechdolt@faa.gov; telephone 202–
267–3073.
SUPPLEMENTARY INFORMATION: On
December 13, 2010, ARSA requested the
FAA withdraw a legal interpretation
issued on May 18, 2010 to United
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Technologies Corporation (May 18, 2010
interpretation). The legal interpretation
addressed what types of activities may
be considered part of the duty period for
maintenance personnel under § 121.377.
In addition, the legal interpretation
provided that the FAA would not
consider compliant a work schedule in
which maintenance personnel were
required to work several consecutive
weeks without an uninterrupted,
consecutive 24-hour rest period during
any seven consecutive days. This
interpretation clarifies the limitations of
the equivalency standard in § 121.377
resulting from two conflicting legal
interpretations. Compare Legal
Interpretation 1987–15 (June 14, 1987)
(noting that the flexibility in § 121.377
was intended to apply only in cases of
national emergency or unusual
occurrence in the air carrier industry)
with Legal Interpretation to Ron Webb
from Donald P. Byrne, Assistant Chief
Counsel, Regulations (June 21, 1991)
(noting that ‘‘the term ‘‘or equivalent
thereof’’ allows for time off (in 24
consecutive hour increments) to be
deferred or accumulated, making it
possible to take four 24 hour periods off
toward the end of a calendar month’’).
ARSA asserts that the May 18, 2010
interpretation changes the plain
language of the regulation and requests
that it be withdrawn. The FAA has
decided against withdrawing the May
18, 2010 interpretation at this time.
However, based on ARSA’s request, the
agency has decided to seek comment on
the impact of the interpretation. Based
on a review of the comments, the FAA
may decide to modify or rescind the
May 18, 2010 interpretation.
The FAA believes that this type of
schedule (i.e., working 26 days followed
by 4 days off) is contrary to the intent
of the regulation, which was designed to
mitigate the effects of fatigue for
maintenance personnel. Fatigue
degrades a person’s ability to work
effectively. Some causes of fatigue are
sleep deprivation and time spent on
duty. See Advisory Circular AC 120–72,
Maintenance Resource Management
Training, (Sept. 28, 2000). Given that
§ 121.377 places no limit on the amount
of time maintenance personnel may
work, it may be possible for these
personnel to work consecutive 8, 12, or
16-hour shifts. This type of schedule,
combined with delaying rest periods
until the end of the month, may result
in reduced reaction time, impaired
short-term memory, decreased vigilance,
reduced motivation, increased
irritability, and an increase in the
number of errors made for maintenance
personnel. In light of these factors, the
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allowance for some flexibility in
scheduling the 24-hour consecutive rest
period required by § 121.377 is not
without limitation. Thus, a schedule
that delays providing the requisite rest
under § 121.377 until the end of the
calendar month, such that the exception
in § 121.377 becomes the normal
practice, would not be considered
compliant with the rest requirements of
14 CFR 121.377. The text of the May 18,
2010 interpretation is as follows:
Alexandra M. McHugh,
Assistant Counsel.
United Technologies Corporation, Pratt
& Whitney Legal Services, 400 Main
Street, M/S 132–12, East Hartford,
CT 06108
Dear Ms. McHugh: This is in response
to Pratt & Whitney’s letter of May 19,
2008, concerning the application of
§ 121.377 to maintenance personnel at
Pratt’s repair facility certified under Part
145 of the Federal Aviation Regulations.
Based on the several factual scenarios
contained in the letter and subsequent
conversations between Pratt and my
office, I have organized this response
into three general issues. The first deals
with whether Pratt can view as nonduty time the time an employee spends
completing non-maintenance work or
tasks while being compensated by Pratt,
even while away from Pratt’s facility.
The second explores the extent to which
Pratt may view as non-duty time the
time an employee spends at other
employment while off duty from Pratt,
even if it is aviation related work. The
last issue concerns the limit of
scheduling flexibility provided by the
regulation. I believe you will be able to
apply the answers to these three
questions to all of the specific scenarios
you posited in your letter.
For repair stations certificated under
Part 145 that perform maintenance work
for air carriers operating under Part 121,
§ 121.377 establishes a maximum duty
period for maintenance personnel
working for that repair station. That
section reads:
Within the United States, each
certificate holder (or person performing
maintenance or preventive maintenance
functions for it) shall relieve each
person performing maintenance or
preventive maintenance from duty for a
period of at least 24 consecutive hours
during any seven consecutive days, or
the equivalent thereof within any one
calendar month.
14 CFR § 121.377. Thus, generally,
maintenance personnel must be allowed
24 consecutive hours of rest during any
seven consecutive days. In the context
of discussing Maintenance Resource
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Management concepts, the FAA has
stated in Advisory Circular (AC) 120–72
(September 28, 2000) that addressing
fatigue-related errors ensures the safety
of flight in passenger carrying
operations. Fatigue often leads to
decreased vigilance and impaired short
term memory, resulting in a likely
increase in human error. A common
known cause of fatigue is ‘‘time on
duty.’’ AC 120–72, para. 9(h)(2)(f).
Therefore, the general rule in § 121.377
is intended to reduce the likelihood of
fatigue-related maintenance errors in air
carrier operations.
Section 121.377 requires that a person
performing maintenance or preventative
maintenance be relieved from ‘‘duty’’
for, generally, one day out of every
seven. One question, then, is what is
considered ‘‘duty.’’ In other contexts, the
FAA has defined duty as ‘‘actual work
for the [employer] or the present
responsibility for such should the
occasion arise.’’ See Legal Interpretation
1993–31 (Dec. 13, 1993). Prior
interpretations have concluded that
performing a mix of tasks, some of
which do not involve work for a Part
121 air carrier or even non-aviation
related tasks, but are tasks assigned to
the employee by the employer, still fall
within the category of ‘‘duty’’ for
purposes of applying § 121.377. Legal
Interpretation to Ron Webb from Donald
P. Byrne, Assistant Chief Counsel,
Regulations (June 21, 1991); cf. Legal
Interpretation to Jim Mayors from
Rebecca B. MacPherson, Assistant Chief
Counsel for Regulations (Mar. 2, 2009)
(noting that the time a pilot participated
in a 2-hour company meeting that was
not related to a company assignment of
flight time, must still be calculated as
part of his duty day because he was not
free from all work obligations during
that time); Legal Interpretation to Jay
Wells from Rebecca MacPherson,
Assistant Chief Counsel, Regulations
Division (October 29, 2007); Legal
Interpretation to James W. Johnson from
Donald P. Byrne, Assistant Chief
Counsel for Regulations (May 9, 2003).
Therefore, for purposes of applying
§ 121.377, any time for which an
employee ‘‘has actual work for the
employer, or the present responsibility
for such work, should it arise,’’
constitutes ‘‘duty’’ time. Accordingly,
the time an employee is engaged in
maintenance tasks, attending a
bargaining unit meeting, attending a
training session, doing work related to
Pratt’s educational benefit, traveling
from the point on Pratt’s campus where
the employee ‘‘clocked in’’ to the
employee’s work area, or working for
another unit within Pratt’s corporate
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umbrella, constitutes time that must be
included in the calculation of duty time
to determine the rest required under
§ 121.377, whether or not that unit itself
must adhere to the requirements of
§ 121.377. An employee using accrued
vacation or credit time is not ‘‘on duty’’
even though the employee may receive
compensation for that time.
Nevertheless, the regulation aims to
require repair stations to give its
maintenance personnel at least one day
off every week without requiring that
employee to use accrued vacation time
to be free from any responsibility for
work.
Once Pratt relieves the employee from
duty, the regulation does not require
Pratt to monitor the employee’s
activities. The scenario where an
employee uses the time off from Pratt to
work at another maintenance facility
does not implicate Pratt’s compliance
with § 121.377. Unlike the regulations
governing crewmember duty time,
§ 121.377 does not contain a limit on an
employee’s total accumulated working
hours within a specified period of time.
The FAA does not recommend this
practice, however, for the reasons
discussed in AC 120–72 related to
fatigue. Thus, an employee relieved
from duty by Pratt may perform other
aviation related maintenance, even for
other facilities which themselves are
bound by § 121.377, provided the
employee is provided the requisite time
off by each facility for which the
employee works. Pratt must use caution,
however, not to create the appearance of
requiring an employee to work during
off hours for another facility that is just
a corporate sister to the Pratt facility.
You also raise the question of whether
a facility can schedule employees to
work more than six consecutive days,
thereby grouping required days off, and
still remain in compliance with
§ 121.377. The regulatory standard
requires 24 consecutive hours off duty
during any seven consecutive days but
also contains some flexibility in the
phrase ‘‘or the equivalent thereof within
any one calendar month.’’ The FAA
intended that the regulation allow
employees to work in excess of six
consecutive days in the event of a
national emergency or unusual
occurrence in the air carrier industry.
See Legal Interpretation 1987–15 (June
14, 1987). The regulatory flexibility
found in § 121.377 allows maintenance
personnel to work a schedule that
maintains the ‘‘equivalent’’ to one day
off every week even though that
schedule might provide for more than
six consecutive days of work.
The equivalent standard, however,
does have limits. The tenants of
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statutory and regulatory interpretation
suggest that the specific standard of one
day off every week cannot be rendered
completely inoperative by the more
general equivalent standard. A previous
interpretation allowed that a work
schedule that provides for personnel to
have a group of 4 days off followed by
up to 24 days of work, or vice versa,
would still meet the standard of being
‘‘equivalent’’ to one day off in every
seven within a month. Legal
Interpretation to Ron Webb from Donald
P. Byrne, Assistant Chief Counsel,
Regulations (June 21, 1991). That
interpretation, however, was issued
prior to the findings relating fatigue to
maintenance related errors in the air
carrier industry discussed in AC 120–
72. Webster’s dictionary defines
‘‘equivalent’’ as having logical
equivalence, or corresponding or
virtually identical in effect or function.
Today, we would not view as compliant
a schedule that provides over the course
of eight weeks for four days off followed
by 48 straight days of duty followed by
four more days off. Such a work
schedule that generally provides for an
average of one day off over several
weeks cannot be said to be ‘‘equivalent’’
to the more specific standard requiring
one day off out of every seven days.
Lastly, you correctly note that the
regulation does not address the length of
the work day, only the length of the
required time off work. The legal
interpretation from Mr. Byrne to Mr.
Webb also makes clear that the general
equivalency provision in § 121.377 does
not apply to the specific requirement to
give 24 consecutive hours of time off.
Time off may not be provided in smaller
increments over several days even
though the total time off over any seven
day period may equal or exceed 24
hours.
We appreciate your patience and trust
that the above responds to your
concerns. If you need further assistance,
please contact my staff at (202) 267–
3073. This response was prepared by
Anne Bechdolt, Attorney in the
Operations Law Branch of the
Regulations Division of the Office of the
Chief Counsel, and coordinated with the
Aircraft Maintenance and Air
Transportation divisions of Flight
Standards Service.
Rebecca B. MacPherson,
Assistant Chief Counsel, Regulations Division
[FR Doc. 2011–9236 Filed 4–14–11; 8:45 am]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 294
RIN 0596–AC74
Special Areas; Roadless Area
Conservation; Applicability to the
National Forests in Colorado
Forest Service, USDA.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Forest Service, U.S.
Department of Agriculture (USDA), is
proposing to establish a State-specific
rule to provide management direction
for conserving and managing
inventoried roadless areas on National
Forest System (NFS) lands in Colorado.
A proposed rule was published in the
July 25, 2008, Federal Register. In
response to public comment on the 2008
Proposed Rule and a revised petition
submitted by the State of Colorado on
April 6, 2010, the Forest Service is
publishing a new proposed rule.
The Agency is inviting public
comment on this new proposed rule and
accompanying revised draft
environmental impact statement
(RDEIS). The Agency is interested in
public comments on the changes to
exceptions and prohibitions on
activities in roadless areas that have
been developed in response to public
comments on the 2008 Proposed Rule.
The Agency is particularly interested in
receiving public comments on the
concept, management, and rationale for
designation of specific areas within
Colorado Roadless Areas identified as
‘‘upper tier.’’ In this proposed rule, these
areas are provided a higher level of
protection than the 2001 Roadless Rule,
DATES: Comments must be received in
writing by July 14, 2011.
ADDRESSES: Comments may be sent via
e-mail to COComments@fsroadless.org.
Comments may also be submitted via
the Internet at https://
www.regulations.gov. Written comments
concerning this notice should be
addressed to: Colorado Roadless Rule/
EIS, P.O. Box 1919, Sacramento, CA
95812.
All comments, including names and
addresses, are placed in the record and
are available for public inspection and
copying. The public may inspect
comments received at https://
roadless.fs.fed.us.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Colorado Roadless Rule Team Leader
Ken Tu at (303) 275–5156. Individuals
using telecommunication devices for the
deaf (TDD) may call the Federal
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]]>Agencies
[Federal Register Volume 76, Number 73 (Friday, April 15, 2011)]
[Proposed Rules]
[Pages 21270-21272]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9236]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. FAA-2011-0367]
Interpretation of Duty and Rest Provisions for Maintenance
Personnel
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Proposed interpretation.
-----------------------------------------------------------------------
SUMMARY: This draft letter of interpretation addresses a request by the
Aeronautical Repair Station Association (ARSA) to rescind a letter of
interpretation issued May 18, 2010 which clarified what activities may
constitute duty for maintenance personnel and the application of the
rest provisions under 14 CFR 121.377. The FAA requests comment on the
May 18, 2010 proposed response to United Technologies Corporation.
DATES: Send your comments on or before June 14, 2011.
ADDRESSES: You may send comments identified by Docket Number FAA-2011-
0367 using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for sending your
comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at 202-493-2251.
For more information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
Privacy: We will post all comments we receive, without change, to
https://www.regulations.gov, including any personal information you
provide. Using the search function of the docket Web site, anyone can
find and read the electronic form of all comments received into any of
our dockets, including the name of the individual sending the comment
(or signing the comment for an association, business, labor union,
etc.). You may review DOT's complete Privacy Act Statement in the
Federal Register published on April 11, 2000 (65 FR 19477-78) or you
may visit https://DocketsInfo.dot.gov.
Docket: To read background documents or comments received, go to
https://www.regulations.gov at any time and follow the online
instructions for accessing the docket or Docket Operations in Room W12-
140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Anne Bechdolt, Attorney, Regulations
Division, Office of Chief Counsel (AGC-220), Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC, 20591; e-
mail: Anne.Bechdolt@faa.gov; telephone 202-267-3073.
SUPPLEMENTARY INFORMATION: On December 13, 2010, ARSA requested the FAA
withdraw a legal interpretation issued on May 18, 2010 to United
[[Page 21271]]
Technologies Corporation (May 18, 2010 interpretation). The legal
interpretation addressed what types of activities may be considered
part of the duty period for maintenance personnel under Sec. 121.377.
In addition, the legal interpretation provided that the FAA would not
consider compliant a work schedule in which maintenance personnel were
required to work several consecutive weeks without an uninterrupted,
consecutive 24-hour rest period during any seven consecutive days. This
interpretation clarifies the limitations of the equivalency standard in
Sec. 121.377 resulting from two conflicting legal interpretations.
Compare Legal Interpretation 1987-15 (June 14, 1987) (noting that the
flexibility in Sec. 121.377 was intended to apply only in cases of
national emergency or unusual occurrence in the air carrier industry)
with Legal Interpretation to Ron Webb from Donald P. Byrne, Assistant
Chief Counsel, Regulations (June 21, 1991) (noting that ``the term ``or
equivalent thereof'' allows for time off (in 24 consecutive hour
increments) to be deferred or accumulated, making it possible to take
four 24 hour periods off toward the end of a calendar month''). ARSA
asserts that the May 18, 2010 interpretation changes the plain language
of the regulation and requests that it be withdrawn. The FAA has
decided against withdrawing the May 18, 2010 interpretation at this
time. However, based on ARSA's request, the agency has decided to seek
comment on the impact of the interpretation. Based on a review of the
comments, the FAA may decide to modify or rescind the May 18, 2010
interpretation.
The FAA believes that this type of schedule (i.e., working 26 days
followed by 4 days off) is contrary to the intent of the regulation,
which was designed to mitigate the effects of fatigue for maintenance
personnel. Fatigue degrades a person's ability to work effectively.
Some causes of fatigue are sleep deprivation and time spent on duty.
See Advisory Circular AC 120-72, Maintenance Resource Management
Training, (Sept. 28, 2000). Given that Sec. 121.377 places no limit on
the amount of time maintenance personnel may work, it may be possible
for these personnel to work consecutive 8, 12, or 16-hour shifts. This
type of schedule, combined with delaying rest periods until the end of
the month, may result in reduced reaction time, impaired short-term
memory, decreased vigilance, reduced motivation, increased
irritability, and an increase in the number of errors made for
maintenance personnel. In light of these factors, the allowance for
some flexibility in scheduling the 24-hour consecutive rest period
required by Sec. 121.377 is not without limitation. Thus, a schedule
that delays providing the requisite rest under Sec. 121.377 until the
end of the calendar month, such that the exception in Sec. 121.377
becomes the normal practice, would not be considered compliant with the
rest requirements of 14 CFR 121.377. The text of the May 18, 2010
interpretation is as follows:
Alexandra M. McHugh,
Assistant Counsel.
United Technologies Corporation, Pratt & Whitney Legal Services, 400
Main Street, M/S 132-12, East Hartford, CT 06108
Dear Ms. McHugh: This is in response to Pratt & Whitney's letter of
May 19, 2008, concerning the application of Sec. 121.377 to
maintenance personnel at Pratt's repair facility certified under Part
145 of the Federal Aviation Regulations. Based on the several factual
scenarios contained in the letter and subsequent conversations between
Pratt and my office, I have organized this response into three general
issues. The first deals with whether Pratt can view as non-duty time
the time an employee spends completing non-maintenance work or tasks
while being compensated by Pratt, even while away from Pratt's
facility. The second explores the extent to which Pratt may view as
non-duty time the time an employee spends at other employment while off
duty from Pratt, even if it is aviation related work. The last issue
concerns the limit of scheduling flexibility provided by the
regulation. I believe you will be able to apply the answers to these
three questions to all of the specific scenarios you posited in your
letter.
For repair stations certificated under Part 145 that perform
maintenance work for air carriers operating under Part 121, Sec.
121.377 establishes a maximum duty period for maintenance personnel
working for that repair station. That section reads:
Within the United States, each certificate holder (or person
performing maintenance or preventive maintenance functions for it)
shall relieve each person performing maintenance or preventive
maintenance from duty for a period of at least 24 consecutive hours
during any seven consecutive days, or the equivalent thereof within any
one calendar month.
14 CFR Sec. 121.377. Thus, generally, maintenance personnel must be
allowed 24 consecutive hours of rest during any seven consecutive days.
In the context of discussing Maintenance Resource Management concepts,
the FAA has stated in Advisory Circular (AC) 120-72 (September 28,
2000) that addressing fatigue-related errors ensures the safety of
flight in passenger carrying operations. Fatigue often leads to
decreased vigilance and impaired short term memory, resulting in a
likely increase in human error. A common known cause of fatigue is
``time on duty.'' AC 120-72, para. 9(h)(2)(f). Therefore, the general
rule in Sec. 121.377 is intended to reduce the likelihood of fatigue-
related maintenance errors in air carrier operations.
Section 121.377 requires that a person performing maintenance or
preventative maintenance be relieved from ``duty'' for, generally, one
day out of every seven. One question, then, is what is considered
``duty.'' In other contexts, the FAA has defined duty as ``actual work
for the [employer] or the present responsibility for such should the
occasion arise.'' See Legal Interpretation 1993-31 (Dec. 13, 1993).
Prior interpretations have concluded that performing a mix of tasks,
some of which do not involve work for a Part 121 air carrier or even
non-aviation related tasks, but are tasks assigned to the employee by
the employer, still fall within the category of ``duty'' for purposes
of applying Sec. 121.377. Legal Interpretation to Ron Webb from Donald
P. Byrne, Assistant Chief Counsel, Regulations (June 21, 1991); cf.
Legal Interpretation to Jim Mayors from Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations (Mar. 2, 2009) (noting that the
time a pilot participated in a 2-hour company meeting that was not
related to a company assignment of flight time, must still be
calculated as part of his duty day because he was not free from all
work obligations during that time); Legal Interpretation to Jay Wells
from Rebecca MacPherson, Assistant Chief Counsel, Regulations Division
(October 29, 2007); Legal Interpretation to James W. Johnson from
Donald P. Byrne, Assistant Chief Counsel for Regulations (May 9, 2003).
Therefore, for purposes of applying Sec. 121.377, any time for
which an employee ``has actual work for the employer, or the present
responsibility for such work, should it arise,'' constitutes ``duty''
time. Accordingly, the time an employee is engaged in maintenance
tasks, attending a bargaining unit meeting, attending a training
session, doing work related to Pratt's educational benefit, traveling
from the point on Pratt's campus where the employee ``clocked in'' to
the employee's work area, or working for another unit within Pratt's
corporate
[[Page 21272]]
umbrella, constitutes time that must be included in the calculation of
duty time to determine the rest required under Sec. 121.377, whether
or not that unit itself must adhere to the requirements of Sec.
121.377. An employee using accrued vacation or credit time is not ``on
duty'' even though the employee may receive compensation for that time.
Nevertheless, the regulation aims to require repair stations to give
its maintenance personnel at least one day off every week without
requiring that employee to use accrued vacation time to be free from
any responsibility for work.
Once Pratt relieves the employee from duty, the regulation does not
require Pratt to monitor the employee's activities. The scenario where
an employee uses the time off from Pratt to work at another maintenance
facility does not implicate Pratt's compliance with Sec. 121.377.
Unlike the regulations governing crewmember duty time, Sec. 121.377
does not contain a limit on an employee's total accumulated working
hours within a specified period of time. The FAA does not recommend
this practice, however, for the reasons discussed in AC 120-72 related
to fatigue. Thus, an employee relieved from duty by Pratt may perform
other aviation related maintenance, even for other facilities which
themselves are bound by Sec. 121.377, provided the employee is
provided the requisite time off by each facility for which the employee
works. Pratt must use caution, however, not to create the appearance of
requiring an employee to work during off hours for another facility
that is just a corporate sister to the Pratt facility.
You also raise the question of whether a facility can schedule
employees to work more than six consecutive days, thereby grouping
required days off, and still remain in compliance with Sec. 121.377.
The regulatory standard requires 24 consecutive hours off duty during
any seven consecutive days but also contains some flexibility in the
phrase ``or the equivalent thereof within any one calendar month.'' The
FAA intended that the regulation allow employees to work in excess of
six consecutive days in the event of a national emergency or unusual
occurrence in the air carrier industry. See Legal Interpretation 1987-
15 (June 14, 1987). The regulatory flexibility found in Sec. 121.377
allows maintenance personnel to work a schedule that maintains the
``equivalent'' to one day off every week even though that schedule
might provide for more than six consecutive days of work.
The equivalent standard, however, does have limits. The tenants of
statutory and regulatory interpretation suggest that the specific
standard of one day off every week cannot be rendered completely
inoperative by the more general equivalent standard. A previous
interpretation allowed that a work schedule that provides for personnel
to have a group of 4 days off followed by up to 24 days of work, or
vice versa, would still meet the standard of being ``equivalent'' to
one day off in every seven within a month. Legal Interpretation to Ron
Webb from Donald P. Byrne, Assistant Chief Counsel, Regulations (June
21, 1991). That interpretation, however, was issued prior to the
findings relating fatigue to maintenance related errors in the air
carrier industry discussed in AC 120-72. Webster's dictionary defines
``equivalent'' as having logical equivalence, or corresponding or
virtually identical in effect or function. Today, we would not view as
compliant a schedule that provides over the course of eight weeks for
four days off followed by 48 straight days of duty followed by four
more days off. Such a work schedule that generally provides for an
average of one day off over several weeks cannot be said to be
``equivalent'' to the more specific standard requiring one day off out
of every seven days.
Lastly, you correctly note that the regulation does not address the
length of the work day, only the length of the required time off work.
The legal interpretation from Mr. Byrne to Mr. Webb also makes clear
that the general equivalency provision in Sec. 121.377 does not apply
to the specific requirement to give 24 consecutive hours of time off.
Time off may not be provided in smaller increments over several days
even though the total time off over any seven day period may equal or
exceed 24 hours.
We appreciate your patience and trust that the above responds to
your concerns. If you need further assistance, please contact my staff
at (202) 267-3073. This response was prepared by Anne Bechdolt,
Attorney in the Operations Law Branch of the Regulations Division of
the Office of the Chief Counsel, and coordinated with the Aircraft
Maintenance and Air Transportation divisions of Flight Standards
Service.
Rebecca B. MacPherson,
Assistant Chief Counsel, Regulations Division
[FR Doc. 2011-9236 Filed 4-14-11; 8:45 am]
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