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"Pilots feel pushed despite rest rules"

Sunday, May 12, 2002
Pilots feel pushed despite rest rules 
The Dallas (TX) Morning News 

WASHINGTON – Almost a year after a weary pilot flew into a thunderstorm
and crashed an American Airlines jetliner in Little Rock, Ark., a team
of federal safety auditors arrived at American headquarters in Fort

For a week in May 2000, the team reviewed company records and conducted
interviews, with the aim of answering a critical question raised by that
crash: Was American ensuring adequate rest for its 10,000 pilots, as
required by federal regulations? 

The answer, according to the team's report, was a decisive "no." In a
draft of that report, Robert Cook, leader of the Federal Aviation
Administration team, said that 825 violations of crew-rest rules had
been documented in the first four months of that year. 

Had the FAA chosen to fine American the maximum amount, those violations
could have cost the airline more than $9 million. The agency didn't. And
Mr. Cook's report, a copy of which was obtained by The Dallas Morning
News, was never issued in final form or made public. An FAA spokeswoman
said she could not explain why. 

American subsequently was fined $285,000 for 38 similar incidents that
occurred shortly after the audit had concluded. 

Although American does not dispute any of the FAA's findings, it says a
deal it had struck with local agency officials to postpone a key
deadline should have been honored. The airline is appealing the fine. 

American and other major U.S. carriers have sued to stop an attempt by
the FAA to enforce a longstanding rule on crew rest, saying it would
prove economically disastrous. Some pilots say that airlines want to
keep them on duty indefinitely and, on occasion, pressure them to fly
tired or shorthanded – a tactic known as "pilot pushing." 

The case was argued in January before the U.S. Circuit Court of Appeals
in Washington. 

In the meantime, the FAA has suspended plans for in-depth reviews of
airline scheduling practices, pending the lawsuit's outcome, although it
says it is still doing "normal surveillance" for violations of a 1985
rule that limits crew duty to 16 hours in a 24-hour period. 

Trouble for American 

While all airlines struggle with cockpit fatigue, few, if any, have
found the issue as bedeviling as American. For years, management has
been at odds with pilots and the FAA over what constitutes realistic
scheduling and sufficient crew rest. 

L. Nick Lacey, then the FAA's director of flight standards, said he
ordered the American audit after repeated and detailed complaints from
pilots suggested that the airline was making no attempt to comply with
regulations. He said American seemed to believe it was justified in
keeping pilots on duty, without sleep, sometimes for more than 24 hours.

"We didn't think that was acceptable and not the way that the rule was
originally designed," said Mr. Lacey, now an aviation consultant in the
Washington area. 

American officials said they were stunned by the harsh tone of the FAA
audit. They were following a more lenient compliance plan with the
consent of the agency's Fort Worth office. 

"The regional and local FAA knew about it and approved it," said William
Jessiman, American's manager of crew analysis. 

Mr. Lacey – who was in charge of enforcing the rule – said he authorized
no such deal, and believed American's 825 violations represented an
intentional slap at regulatory authority that should have been dealt
with more seriously. 

"This is the first instance I know of willful noncompliance on a major
scale," said Mr. Lacey, who resigned from the FAA last year after he was
reassigned. "I think the most serious breach of trust of any airline is
to willfully not comply with the rules, whether they agree with them or

The FAA's handling of the audit suggests that "if you get caught, you
can negotiate your way out of it," said John Darrah, president of the
Allied Pilots Association, the union that represents American's pilots. 

Loophole closed 

The lawsuit pending in the Washington court pits the Air Transport
Association – the trade group for the major airlines – against the FAA,
which has jurisdiction over matters of flight safety. 

The dispute began in the fall of 2000, when an FAA attorney – responding
to a pilot's query – sought to clarify the 1985 crew-rest rule. In
effect, his interpretation closed a loophole that airlines had relied on
for years. A pilot, the attorney said, should be able to "look back" and
find eight hours of rest at the end of his actual workday, including
delays. Airlines historically had calculated rest at the scheduled end
of a pilot's last flight. 

Bob Kudwa, American's vice president of flight, echoed the position of
most major airlines in a January 2001 letter to pilots: "If the pilot
was legal to start the day of flights, he or she was legal to finish it
– even though actual flights may have been delayed during the course of
the day." 

The airlines argued in court that the regulation had been so loosely
enforced that the FAA crackdown was tantamount to issuing a new rule
without industry input. They said they could not afford to lose the
millions of dollars that by-the-book enforcement would cost, and might
have to change crews on significantly delayed flights "literally as
planes are loading and taxiing." 

Better to change crews, argued the FAA, than to risk passenger safety
with fatigued pilots. 

The FAA has struggled sporadically with the question of how tired is too
tired to fly since at least 1975, when the crash of a TWA jet was blamed
on pilot fatigue. The agency set up an anonymous pilot self-reporting
system, run by NASA, to collect information on human factors involved in
near midair collisions, runway mishaps and bumpy landings. 

The crash of a chartered DC-8 at Guantΰnamo Bay in 1993 sparked intense
study by NASA after the crew complained of duty-related fatigue and
sleep deprivation. 

In 1997, a Korean Air 747 crashed into a hillside during its approach to
Guam International Airport. The National Transportation Safety Board
attributed the crash, which killed 228 people, to crew fatigue and
cockpit confusion. 

And in 1999, three weeks before the Little Rock crash, an American Eagle
crew flying a Saab 340B commuter plane overran the runway at Jamaica,
N.Y. A flight attendant was seriously injured. Crew members told
investigators they were fatigued from a "continuous duty overnight
schedule," the NTSB said. 

Rand Harrell, a member of the Air Line Pilots Association's national
Flight Time/Duty Time Committee, said he and other union officials found
it troubling that the airlines and the FAA were quibbling over the
practicality of a 16-hour workday, which is longer than many pilots
consider to be safe. 

16 hours vs. 12 hours 

The pilots' association, which represents 62,000 pilots at 42 airlines,
maintained that the duty day should not exceed 12 hours. Even if the
current rule, which requires eight hours of rest, were to be affirmed by
the appeals court, Mr. Harrell said, many pilots would continue to get
no more than four or five hours of sleep because of erratic schedules
and travel time to and from hotels. 

Pilots say that increasingly longer flights made on tighter schedules at
all hours have made their jobs tougher and the flights riskier. 

"When you operate the kind of schedule that our airline operates – 24
hours a day, flights leaving at hours when crew members are normally
asleep – and you're forced to adjust your sleep pattern for months at a
time, it takes a toll," said Sam Mayer, a New York-based American

Medical studies conducted by NASA support many of the pilots'
complaints, showing that alertness and decision-making skills are
severely affected by long duty hours, even when they fall within FAA

The pilot-reporting system run by NASA receives about 2,900 reports a
month on all types of incidents that could have, or did, disrupt or
endanger flights. Researchers say that fatigue is a factor in about 20
percent of the incidents. 

In January, for instance, the fatigued pilot of a Boeing 757 at Boston's
Logan International Airport said he almost taxied in front of another
jet taking off. In December at Indianapolis, another pilot said he
misinterpreted tower clearance instructions and overshot his assigned
altitude. He blamed a lack of rest. Yet another pilot in Corpus Christi
said he hit a brake accidentally and injured a flight attendant at the
end of a long duty day. Airlines are not identified within the system. 

Dr. Mark R. Rosekind, who directed several major studies for NASA, said
the gravity of the problem has been obscured by struggles between the
airlines' management and the pilots' unions. He said that both sides
have often approached the issue as one of efficiency vs. work rules. 

"It's nice to have a regulation as a guideline, but it's an issue of the
human body," Dr. Rosekind said. "Because of the way our bodies are
programmed, people are going to get tired after long hours or during
certain times of the night no matter what the regulations say." 

Fatigue policies 

American says that its fatigue policies – negotiated with the pilots'
union – in many cases exceed federal regulations. American, for example,
does not include travel time to the airport in a pilot's rest period;
the FAA does. Some pilots, however, say they are sometimes pressured to
continue, even when they ask to be relieved. 

At 11:30 p.m. on Sept. 1, 1998, American Flight 116 took off for London
from New York's John F. Kennedy International Airport. Jerry Culligan, a
New York-based captain, was at the controls. 

About 2 ½ hours into the flight, as the plane was over the North
Atlantic, a female passenger began experiencing severe abdominal pain.
After speaking with dispatch and medical officials at American, Mr.
Culligan diverted to Gander, Newfoundland, arriving at 5:16 a.m. local
time on Sept. 2. 

In Gander "we were handed a flight plan for another four hours or so
into London," Mr. Culligan said in a recent interview. Already tired, he
and the co-pilot faced several hours of paperwork delays before they
could depart. 

Continuation of the flight "would have put me up 24 to 27 hours, with
only a two-hour nap in the [previous] afternoon," Mr. Culligan said. "I
just felt like landing in London at that point in time was not a good

After conferring with the co-pilot, Mr. Culligan called dispatch and
said he could not carry on without rest. "They didn't like it," he said.
"They said we were legal to go." 

Mr. Culligan said that American's chief pilot at JFK later relayed a
message from the airline's top flight official at headquarters: Bring
the plane back to New York "or I would be fired." Again he declined,
citing the "unfit to fly" regulations. Ultimately, American sent a new
crew to continue the flight. An airline official said the incident cost
the company $500,000. 

After a company hearing several days later, Mr. Culligan kept his job.
Other pilots, however, say the episode sent a chilling message: Call in
tired and you may be terminated. 

American spokeswoman Karen Watson said the official may have overreacted
to the situation because Mr. Culligan had threatened to divert flights –
on purpose – if the company would not put a third member on its North
Atlantic crews. Mr. Culligan said he never made such a threat. 

Little Rock crash 

After the Little Rock accident on June 1, 1999, American adopted a
"no-fault" fatigue policy, which allows a tired pilot to ask for relief,
even though his duty day has commenced. 

"We're not going to ask somebody to fly if they're not ready to go,"
said Eric Lewis, the airline's chief pilot for crew relations. 

The role of fatigue in the crash of American Flight 1420 in Little Rock
alarmed pilots and investigators, in part because the captain was so
experienced. By the time the MD-82 landed in a violent storm shortly
before midnight, weather-related delays had kept Capt. Richard
Buschmann, a 30-year veteran, on duty more than 13 hours. The plane
overran the runway and slammed into a light post, killing 11 people,
including Mr. Buschmann. 

Investigators with the NTSB quickly focused on the length of Mr.
Buschmann's day. The board ultimately determined that fatigue
contributed to the accident, along with American's vague bad-weather
policy and other factors. 

"Little Rock is the classic accident pilots can relate to," said Mr.
Harrell, of the Air Line Pilots Association. "We've all been there. It's
easy to say, 'There's no way I would have continued on that approach in
that weather,' but all of us now and then get fatigued. When it happens,
your ability to ascertain your own level of alertness is extremely

After the Little Rock crash, the debate over crew rest intensified at
American. At the NTSB hearing on the accident in January 2000, Robert
Baker, then the airline's vice chairman, described American's new,
no-fault fatigue policy, which prompted Greg Feith, the board's
investigator-in-charge, to ask, "Was there a 'fault' policy?" 

Not exactly, replied Mr. Baker. "But ... clearly people that would ...
fly part of a sequence and then decide that they were too fatigued were
... asked by their base management what the issue was, and what the
problem was, and how did it happen and so forth. We've abandoned all
that inquiry...and that's the end of the story." 

But Rich Rubin, a Miami-based American captain, says that systematic
pilot pushing has continued at the airline. As recently as last August,
Mr. Rubin, chairman of the Allied Pilots Association's Flight Time/Duty
Time Committee, filed a complaint with the Department of
Transportation's inspector general, alleging crew rest violations at
American. The complaint is still under investigation. 

Mr. Rubin has maintained for years that American schedules deceptive
flight plans – say, seven hours and 55 minutes – to avoid using an
FAA-required third crewmember on flights that routinely take more than
eight hours. 

Last June, for instance, American decided to remove the third crewmember
– the relief pilot – on its two daily non-stop flights from Dallas-Fort
Worth to Honolulu. 

Because the flight routinely took more than eight hours, Mr. Rubin and
other pilots say, American altered the flight plan at the last minute to
try to prove that the route only needed a two-man crew. 

American supervisors ordered the crew on Flight 5 to fly the Boeing 767
at a lower-than-normal altitude and a higher-than-normal speed – a
practice called "over-flying," which is considered unsafe by pilots and
other experts.The captain later reported that when he objected, he was
confronted by the company's director of flight operations and pressured
to follow the plan. 

"The lower altitude allows a truer airspeed, thus less flight time,"
said Mr. Lacey, who was familiar with the incident. A flight at an
altitude of 26,000 feet instead of the usual 35,000 feet consumes more
fuel and is more likely to encounter rough weather, Mr. Lacey said.
Therefore, commercial carriers seldom use the lower air corridors. 

In fact, the Flight 5 crew encountered turbulence at 26,000 feet and was
forced to climb to 31,000, then 35,000 feet. The flight took eight hours
and 13 minutes, according to pilot accounts. 

The substitute flight plan triggered a complaint to the FAA from Mr.
Rubin, who argued that it was a danger to passengers and was done solely
to justify the removal of the third crewmember. 

Officials in the FAA's Southwest Region investigated and said American
had convinced them that the flight plan was both legal and safe. 

Mr. Lewis, of American, acknowledged that the captain of Flight 5 was
"concerned about the legality" of flying to Honolulu with only two
crewmembers, but said that the alterations to the altitude and speed of
the inaugural flight were not that unusual. "We do that type of thing
routinely," he said, to allow for variations in the weather. 

American pilots have long said that unrealistic scheduling is
commonplace. In a union analysis of several transatlantic flights
scheduled for less than eight hours during the month of July 2001,
actual flights often took longer, especially those returning to the
United States. On 21 crossings of American Flight 147 from Paris to JFK
Airport, for instance, 17 (81%) ran long, averaging eight hours and 17
minutes. The flight is scheduled for seven hours and 50 minutes. 

Overall, four of every 10 flights analyzed took longer than eight hours.

Last month, American announced that it would put a third crewmember on
long-haul flights that had previously had two, such as D/FW-to-Honolulu
and D/FW-to Lima, Peru.Mr. Rubin views that as progress. However, unlike
pilots on domestic standby duty, international reserve pilots have no
set periods of rest. "They could be on call 24 hours a day, up to six
days in a row," he said. 

Ms. Watson, the American spokeswoman, acknowledges Mr. Rubin's complaint
and says the airline is "interested in discussing" a new rest policy for
international reserve pilots. 

Only weeks after the crash in Little Rock, the FAA announced that it
would rigorously enforce a crew rest rule that had been on the books
since 1985 but that had been unevenly applied: Pilots were to receive at
least eight hours of continuous rest in a 24-hour period, without
exception. Airlines were given until Dec. 12, 1999, to comply. 

A month before the deadline, American asked FAA Administrator Jane
Garvey for a nine-month extension. Mr. Baker, who is now retired, wrote
that FAA inspectors had provided "inconsistent interpretations of the
regulation" and that American would have to hire up to 250 more pilots
to come into compliance. 

Mr. Baker's letter was answered by the FAA's Mr. Lacey. There would be
no extension, Mr. Lacey wrote, and the agency intended to perform a
"comprehensive review of your flight scheduling practices." 

The audit, conducted in May 2000, "disclosed 825 instances of
non-compliance where crew members did not have the minimum assigned
rest," according to the draft report by auditor Robert Cook. 

Mr. Cook said his team discovered that even though the FAA had denied
American's request for an extension, the airline had decided to comply
with the rest rule at its own pace. The airline also indicated to him
that its more leisurely timetable had been approved by local FAA

"It is the author's opinion that no formal approval was given to
[American] by the FAA, rather that [American] took the position that
they did not want to modify the flight schedule and cancel flights to be
in full compliance," Mr. Cook wrote. He said he found no evidence of a
written agreement. 

Mr. Lacey said the audit confirmed his suspicions: that American had
taken no steps to comply, behaving as if it would get the FAA extension.

Most of the major airlines had asked for extensions, Mr. Lacey said, but
none was granted. Other airlines had already taken steps to hire and
train more pilots, or to adjust or reduce their existing schedules, he

Mr. Jessiman of American said his airline had been "phasing in" extra
pilots more gradually than the FAA had demanded. He said both the
pilots' union and local FAA officials blessed American's plan to have
the pilots it needed to comply with the rule in place by Aug. 31, 2000. 

"The [FAA's] Southwest Region knew what we were doing," Mr. Jessiman
said. The local FAA officials identified by American as being parties to
the discussions did not return telephone calls. Nor did Mr. Cook. 

Mr. Lacey said he had no inkling that American had obtained local
approval to delay implementation of the rest rule. He said he regarded
it as "insubordination" on the part of the FAA's field employees. 

Mr. Rubin of the Allied Pilots Association said the union agreed to the
phased-in hiring plan only because it thought Mr. Lacey and other FAA
officials in Washington had approved it. 

Shortly after the American review, Mr. Cook's team conducted a similar
audit of Delta Air Lines, even though Delta had not asked for an

The review found that Delta had not hired pilots at an adequate rate.
Auditors had trouble reconstructing crew rest periods from the airline's
computer system, however, and Delta was unwilling or unable to provide
historical detail, Mr. Lacey said. 

As a result, the final report cited no violations of crew rest rules. 

Because there was no trail of pilot complaints, the FAA pressed Delta no
further, Mr. Lacey said. "I was convinced that Delta was at least
attempting to comply," he said. 

FAA spokeswoman Alison Duquette said American and Delta were the only
airlines audited, but she did not know why they were chosen for review. 

Ms. Duquette defended the agency's decision not to fine American for the
825 violations detailed in the audit. "We did not have the evidence to
go forward with a civil penalty," she said – although the violations
were found in American's flight and scheduling records and confirmed by
American personnel. 

Mr. Lacey said he first learned of the arrangement between American and
local FAA officials at some point during the audit. 

Ultimately, the unauthorized deal muddied the issue enough that the FAA
decided not to punish American for the audit findings. "But it doesn't
mitigate the seriousness of the violations or the impact on the pilots
and safety," Mr. Lacey said. 

As the appeals court in Washington ponders its decision, the FAA said it
is working on a new rule that may be stricter than anything on the books
today. "We can't say what the rule will look like, but it will address
reserve time, flight time and rest," Ms. Duquette said. 

Mr. Mayer, the American pilot, said he believes the public would respond
favorably to new duty limitations. "I think we can assume that there are
120 people on Flight 1420 who would rather have arrived an hour or two
later, safely, [in Little Rock] than the way that they did," he said. 

But Mr. Harrell, of the Air Line Pilots Association, isn't confident
that the FAA will follow through. 

"They put out a major rewrite in 1995," he said. "It generated 2,000
comments and went virtually nowhere. We have very little confidence that
the FAA's actually going to publish something." 

Said Mr. Lacey: "It may take loss of life in a major catastrophe to move
the rule."

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