FDP Extensions under 117 and your responsibilities under the law... Your JetBlue MEC Chairman and Work Rules Chairman just returned from the ALPA Flight Time/Duty Time Conference held in Washington D.C. on September 25 & 26. Pilots and management representatives were present from most airlines in the industry, to include all ALPA carriers, American Airlines, Southwest Airlines, JetBlue management and representatives from Airlines for America (A4A). Much of the discussion centered on FDP extensions, fatigue calls and reserve issues. One thing is for certain: the subject of FDP extensions is one of great debate not only within JetBlue, but also the airline industry as a whole. For background, this article was originally written some months ago and has made many passes through your MEC committees, ALPA Legal, and with great assistance from Capt. Don Wykoff (Delta Air Lines, Chair of the ALPA National FT/DT Committee). What the Regulation states, and cursory acceptance of extension via the Fit-for-Duty form. To start the discussion, below is the text from the FAR and the section regarding FDP extensions: FAR 117.19(a) For augmented and unaugmented operations, if unforeseen operational circumstances arise prior to takeoff: (1) The pilot in command and the certificate holder may extend the maximum flight duty period permitted in Tables B or C of this part up to 2 hours. [emphasis added] Unforeseen operational circumstance means an unplanned event of insufficient duration to allow for adjustments to schedules, including unforecast weather, equipment malfunction, or air traffic delay that is not reasonably expected. After reading the FAA s 2014 Wykoff-Mullen interpretation: All FDP extensions taken under 117.19 are governed by either 117.19(a)(1) or 117.19(b) (1). Both of these sections require PIC concurrence with any extension of up to 2 hours. The interpretation continues on to say that certification under 117.5 (Fitness for Duty) suffices for
PIC concurrence for extensions of 30 minutes or less, since there are no additional requirements like those incurred for extensions greater than 30 minutes. The two requirements for extending greater than 30 minutes are, (1) may only occur once before receiving rest IAW 117.25(b) (30 in 168), and (2) the company must file a report with the FAA outlining the incident. Since the only additional requirement that directly involves the PIC is making sure adequate rest is received, it might give the illusion that s the only criteria required for concurrence. Is extension mandatory and is Fatigue the only reason not to extend? The FAA tells us the following in regards to whether a PIC must concur with an FDP extension: In order to use a 117.19 extension, both the PIC and the certificate holder must concur with the extension. However, an extension under 117.19 is almost always optional, as the certificate holder and PIC could opt to cancel the flight segment for which the extension is necessary. Thus, the PIC would be in compliance with part 117 if he or she does not concur with an FDP extension and does not fly the flight segment for which the FDP extension is necessary.[garciglia, emphasis added] Clearly a pilot can always refuse a flight segment due to fatigue, but is that the only criteria that should be used when making the larger decision about an FDP Extension? It is important to note in the FAAs preamble and clarifications, it does not delineate fatigue as the only issue surrounding the PICs decision to extend. The extension decision should be made based not only on fitness for duty of the PIC, but on the totality of the situation (e.g. fitness for duty of the entire crew, operational environment, transitions into and out of the WOCL, weather conditions, outside stressors, and many other factors that tend to be additive in most situations that lead to the necessity for an FDP extension). When making this extension decision late in the duty period, it is also important to note NASA s observation that when an individual has fatigue onset, this is when they are most likely to not recognize their fatigue state during their decision making.(p.349 FR 77) Concurrence means each party has a responsibility In the preamble text to the final rule, (p369 & p371 FR 77, 4 Jan 2012), the FAA states additional specifics concerning acceptance of extensions: The FAA agrees that the responsibility for determining whether a FDP needs to be extended rests jointly with the pilot in command and the certificate holder. This ensures that one party is not taking excessive action over another party, and that proper considerations are factored into the decision-making. Since it is prior to takeoff, once the certificate holder becomes aware of such issue, the certificate holder and pilot-in-command have discretion to evaluate the situation and determine whether it is permissible and appropriate to extend the applicable FDPs and
continue with the flight or whether it is more appropriate to replace the affected flightcrew member. Therefore, the FAA expects that concurrence between the PIC and the certificate holder takes place before extending, and specifically that they evaluate all conditions surrounding the event to ensure that the extension is being taken within the confines of the regulation. Unforeseen Operational Circumstances and the PICs role Part of 117.19 outlines procedures that the certificate holder (air carrier) must comply with if an extension exceeds 30 minutes. Specifically, the certificate holder must submit reports for these extensions, to the FAA. If upon review, the FAA determines that an extension was made that was not in compliance with the definition of Unforeseen Circumstances, the certificate holder, not the pilot, will be held accountable for that action. 1 The pilot s role in the extension decision should be primarily concerned with what operational factors may negatively impact the safe conduct of the extended flight segment. The PIC s decision in this regard is unimpeachable. While the PIC s primary role in this joint decision is concerning operational safety, likewise, the certificate holder s role is to evaluate, and be responsible for, the determination of Unforeseen Circumstances. Again, Unforeseen Circumstances are determined by meeting 2 criteria: -an unplanned event. -an event of insufficient duration to allow for adjustment of schedules. Unplanned Event is a bit of a change from the standard which was used under Part 121. Before, the event only needed to be beyond the control of the certificate holder. The FAA denied the UPS request to reinstate the wording beyond the control of the certificate holder during the NPRM review period. The certificate holder s lack of influence over an event is no longer an excuse not to schedule around it, if there is sufficient time to do so. (77 FR p.348) The second criteria for Unforeseen Operational Circumstance is that the event must be of sufficient duration to allow for adjustment of schedules. This can be confusing due to the multiple number of negative qualifiers used up to this point in the definition. The key to understanding this line is to understand that the duration is speaking not of the length of the delay, but rather about how long the delay was known about; or in other words: was the delay known about long enough to allow for an adjustment of schedules? If the meaning was to measure the duration of the delay when determining Unforeseen 1 Dale Roberts, Federal Aviation Administration; in answer to a question during the ALPA FT/DT Conference, 25 September 2014.
Circumstance, then the logic of this section falls apart. For example: If the duration of the event was too small (insufficient) to allow for a schedule adjustment (to re-crew or change the flight schedule), and it was unplanned, then it would be Unforeseen. This would allow the certificate holder to extend the FDP for these small duration events. This is contrary to the statement in the pre-amble: Because relatively short unplanned events should not be used as a basis for extending an FDP, the FAA has decided to retain the language in unforeseen operational circumstances. (77 FR p348) We must emphasize that the PICs role in the extension decision is not to make the Unforeseen Operational Circumstance decision. Quoting again from the pre-amble: the certificate holder and pilot-in-command have discretion to evaluate the situation and determine whether it is permissible and appropriate to extend the applicable FDPs (77 FR p371) So, this goes back to concurrence. Part of the discussion between the PIC and certificate holder should be to cross-check one another to ensure that each party has considered all relevant information and options. This is to ensure we work as a team and keep each other out of trouble. So just as the certificate holder may ask the PIC if they considered all aspects affecting the extension (appropriate weather, winds, ATC delays, traffic flow, turbulence considerations, flight plan routing around significant weather, turbulent air penetration speeds, taxi times, etc.) to determine if the flight could realistically be completed in the planned time, it is also incumbent on the pilot to help the certificate holder by ensuring they properly evaluated all options and correctly applied the FAR in order to keep them out of trouble since the FAA will be notified of the details surrounding an extension over 30 minutes. This cross-check should be done in the spirit of cooperation to ensure neither of the two parties exposes themselves to undue certificate action. But, just as the Pilot-in-Command s safety decision to not extend based on operational circumstances is inviolable, so it is with the certificate holder s decision about Unforeseen Operational Circumstances. Keep in mind, if the carrier has enough time to perform an adjustment to schedules for an unplanned event, they should make that schedule change or re-crew call. But that is the carrier s decision to make. Also, if you don t have enough information to determine whether you think it is safe to extend yet, you should never feel pressured to make a decision on less information than you are comfortable with. It might be smarter to wait until you have more information. How Fit is Fit-for-Duty (FFD)? Please recall that FAR 117.5 Fitness for duty, states: Each flight crew member must report for any flight duty period rested and prepared to perform his or her assigned duties. This does not require that you arrive to work expecting to fly to the limits of Table B + 2 hours. If during the course of your assignment, the operational situation changes and you must work longer than your originally
assigned duties, you should re-evaluate your fitness for duty and ability to complete the next segment of your new FDP, just as FAR 117.5 instructs. Your obligation, should you be unable to complete your assignment due to FFD, is to inform Crew Services that you are fatigued and unable to continue due to operational conditions beyond your control. Remember, if you are not fit to perform and complete your pending flight segment, you cannot legally accept the assignment. Summary If as PIC you are examining whether or not it is prudent to extend your FDP, this is an operational decision just like deciding whether or not to launch when there are thunderstorms near the field. You must weigh all factors and decide whether or not it makes sense to exceed the Table B Limitation, ICW FAR 117.19. This decision must consider the entire operational picture to include, but not limited to, fatigue. The Table B or C limit is exactly that: a limit. As pilots, we know that any exception to a limitation should not be taken lightly. It requires us to examine the situation carefully and ensure that the benefit received for breaking the limit far outweighs the consequences for doing so. We don t break limitations for matters of convenience. We should only extend the FDP limit when it makes logical sense for the operation and has no impact to the overall safety of the flight. Any scenario that leads to the need for an FDP extension would most likely have unfolded due to circumstances beyond your control, so if, in your judgment as PIC, continuance is not safe, then that is all that matters; regardless of whether it is fatigue related or not. Please recall that most scenarios that lead to an FDP extension are anything but simplistic; they are often very complex. The bottom line is this: any decision to accept or deny a FDP extension is no different than any of the other operational PIC decisions that are made on a daily basis ensuring a safe and secure flight. This is the time when we want to be on our best game. This is not the time when we should allow ourselves to be talked into a bad scenario, which then lines up all the holes in the Swiss cheese. If you have accepted or refused an FDP extension, our MEC wants to know about the details surrounding that event, especially if there were any pay implications (actual or implied). This information will help to ensure proper protections for all of our pilots, under the law. Extra: Reserve Pilots: check out the latest information about check-in on the Work Rules Committee page by clicking this link! http://jbumec.alpa.org/linkclick.aspx?fileticket=8job47lxltw%3d&tabid=9005