A fitting critique of EASA FTL regulations could be, ‘But what does this rule actually mean?’... ‘Is that really legal?’ and ‘has my company got this wrong?’ could be runners-up.
Pilots asking these questions are exasperated with the regulations on fatigue, and understandably so. Any sound regulatory system should aim for clarity and consensus in its interpretation. So, rules that confuse pilots and other frontline professionals on a daily basis are hardly fit for purpose. Yet that is the all-too-frequent complaint about the EASA FTL rulebook.
The cumbersome architecture of the regulations on fatigue certainly doesn’t help. For a start, one set of rules often has to be cross-referenced against a labyrinth of other rules and exemptions in order to capture all that might apply to a given situation.
But sheer complexity is not the only problem. A far greater issue is that definitions of key terms are unclear, and regulators are slow or reluctant to provide clarifications.
For example, pilots know that ‘maximum flight duty period’ is not a precise length of time that can never be exceeded. On top of ‘maximum’, conditional extensions and discretionary periods can be added. So ‘maximum’ becomes a highly elastic concept. It does not determine the real, effective maximum on any given working day, despite rules such as the ‘18 hour awake’ rule that depend on this precise calculation.
This lack of proper precision has led to the emergence of tortuous new phrases such as ‘basic un-extended maximum FDP’. Not only is this a crass distortion of plain English, more importantly it risks genuine confusion over the true maximum flight duty limit on working hours.
A dangerous precedent for ‘interpretation drift’ is created when key words in the regulation lose their plain English meanings. Indeed, definitions that were once clear, may increasingly be seen as ‘up for grabs’ for those with increased efficiency in mind. The inevitable result is that individual operators adopt increasingly odd interpretations of words or phrases in the rules. All too often, these diverge from their plain meaning.
Consider the seemingly innocuous phrase ‘on the day’. Whatever a given operator’s opinion on this is has bearing on whether there are ‘unforeseen circumstances’, and hence what extra hours might be expected from pilots. Where ‘on the day’ has been allowed a plurality of interpretations, both in time scale (working day verses 24 hour period or longer) and perspectives (i.e. on the operator’s day vs a pilot’s working day) and this goes on un-corrected, there is a breakdown in the enforcement of the regulations.
At the sharp end, linguistic ambiguity compromises pilots’ ability to navigate the rules efficiently, especially during their day at work. In practice, often the ‘right’ answer to a scheduling question remains elusive: it is the operator’s interpretation, sensible or unconventional, on which the pilot frequently has to depend. In most situations, and for many operators this may work fine. But should anything go wrong in the operation and unconventional interpretations have been used, the pilot suddenly risks being exposed to a more literal interpretation of the rules, with a reduced legal basis for protection.
Perhaps the clearest example of this is ‘commander’s discretion’. In pilot Flight Time Limitation (FTL) rules, 'commander’s discretion' refers to the entitlement of the commander, in a case of unforeseen circumstances to decide if they feel sufficiently fit to fly for a longer period than the normal flight duty period. The commander has a legal responsibility to ensure the safety of the upcoming flight. However, in practice, deciding to fly for this extra period is commonly referred to as “using discretion”. Deciding not to fly for this period is commonly referred to as “not using discretion”.
In other words, the basic meaning of discretion has become completely distorted in operational settings, as a logical use of discretion in some cases may result in the flight not being undertaken. Pilots can face a Catch-22 dilemma: "What does this rule mean for me in legal terms? And what does it mean in practice?" And there are other philosophical questions too: Can ‘commander’s discretion’ extend over time-periods for which no given person could possibly make a reasoned assessment? Should schedules be permitted where a commander’s discretion in favour of flying is overwhelmingly likely to be required? Was that the original intent of the commander’s discretion law? How is decision-making around these rules being audited?
As prominent human factors expert Sidney Dekker has emphasised time and time again, the success of any safety regulation depends on how the rules practically relate to work ‘as done’ in the real world, compared with work as it might be imagined to be done in a perfect world. This is particularly the case when the target of the regulation sits in considerable tension between safety and productivity, and hence biasing factors on the application of such rules can be very high indeed.
So, any safety protections that regulations put in place need to rely heavily on industry consensus for their interpretation and checks by the regulator to see what happens in practice and ensure enforcement. Where timely and crystal-clear clarifications from regulators on these matters are not forthcoming, the assumed protections of the rules are in jeopardy. These are complicated issues that urgently require honest and frank discussions between regulators and industry. Any truly rigorous assessment of the success of EASA FTL regulations must investigate the rules as applied. It is not just how they look on paper, it is how they work in practice - in daily decision making - that really counts.