For those of us who have been frustrated by the FAA’s inability to issue a comprehensive duty and rest rule for mechanics, it was disappointing to see the agency’s latest attempt at tackling the issue. Even as the FAA specifically recognizes in this latest draft Advisory Circular the significant fatigue issues that face maintenance workers: “Of concern to [the FAA] is the finding that maintenance personnel tend to get three hours less sleep per night than is recommended. That is a sleep debt twice the national average. Sleepiness and fatigue associated with sleep debt is cumulative. This means that losing even an hour of sleep every other night over the course of a week will produce conditions that negatively affect performance.”
Instead of proposing clear maximum duty times and minimum rest requirements, the FAA has instead proposed a draft advisory circular to manage mechanic fatigue risk. Since an AC is not regulatory and therefore not mandatory, its chances of being complied with are limited by the usual factors: time and money. So, no doubt, the best carriers will take this AC to heart and integrate its proposals into their safety management systems. But the rest–of which there are many–will not. And there won’t be anything the FAA can do, of course, because no one needs to comply with an advisory circular. The FAA makes that abundantly clear in the draft itself: “Not Mandatory. This AC is informational and is not mandatory. It does not constitute a regulation.”
Currently, the only duty-time rule that applies to mechanics is FAR 121.377, which states, “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.”
At first blush it might seem that mechanics under this rule–which applies only to Part 121 air carriers and their maintenance contractors, not air-taxi or corporate or GA mechanics–would get a full 24 hours off every week. But when the FAA tried to interpret it this way in 2010 (in response to a letter from Pratt & Whitney in 2008–yes, interpretations do take their sweet time getting out of the FAA’s legal office) the FAA was met with a hail of opposition from airlines, repair stations and even mechanics’ unions. The issue boiled down to the meaning of the phrase “or the equivalent thereof within any one calendar month.” Did that mean that mechanics could work more than a week straight without a 24-hour break?
In its 2010 interpretation, the FAA took the position that the phrase “or the equivalent thereof within any one calendar month” had its limits: “The equivalent standard, however, does have limits. The tenants [sic] 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 four 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… That interpretation, however, was issued prior to the findings relating fatigue to maintenance related errors in the air carrier industry… 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.”
The FAA’s opinion here shows that taken to its logical extreme, the “equivalent” standard could allow weeks straight of work without any day off, as long as the required days off were strung together at the end. You don’t have to be a sleep expert to know that working weeks straight without a break is not the same as a day off every week.
Well, in the firestorm that followed, the FAA backtracked on this interpretation. It did go to the trouble of requesting public comments in 2011. I do agree on at least one concern that was raised by opponents: the interpretation would drive even more maintenance work out of the country. And that’s because the rule applies only “within the United States.” Clearly, workers performing maintenance for U.S. airlines should be covered by the same duty and rest rules, regardless of where the work is performed. After all, it’s the safety of the aircraft after maintenance that the FAA is concerned with, not the health of maintenance workers generally. U.S. employers should not be put at a competitive disadvantage by safety rules such as this one that apply only within the U.S.
But back to the subject of an AC instead of a maintenance fatigue rule. Advisory guidelines just won’t work when and where you need them most: when mechanics are being pressured to work fatigued at places that put a premium on pushing airplanes out on schedule more than getting them out maintained correctly. These places tend to be the ones that have the fewest worker protections (yes, that usually means places without unions). So, while the AC has a lot of excellent information and advice that employers should use regardless of where the maintenance work is being performed, it is not a substitute for an actual rule with maximum hours of work and minimum rest.
I understand that getting a rule through will be tough. And it will likely require Congressional direction to push it through. But as our knowledge of the effect of fatigue on human performance grows, it’s not possible to deny that long hours, day after day, without catch-up rest degrade a maintenance performer’s abilities to perform maintenance tasks properly, especially the most safety critical and complex tasks. While improperly performed maintenance could result in a crash in the worst case, improper maintenance also results in costly incidents. So, if the FAA doesn’t come up with a rule, employers should create their own workplace standards, especially since fatigue can drive up worker injuries and Workers Comp claims.