FLYING Magazine
A coalition of aviation organizations has urged the FAA to eliminate state and local rest and duty requirements for flight crews operating under Parts 91, 125, and 135, arguing that a jumble of differing rules could jeopardize safety and efficiency.
The National Business Aviation Association (NBAA), Aircraft Owners and Pilots Association (AOPA), Experimental Aircraft Association (EAA), General Aviation Manufacturers Association (GAMA), National Air Transportation Association (NATA), and Vertical Aviation International (VAI) jointly commented on a July notice of proposed rulemaking (NPRM) in which the FAA clarified federal preemption of those state and local rules, specifically for Part 121 operations.
The groups contend that preemption should also apply to Part 91K fractional management companies and Part 125 and 135 operators. Given the organizations’ political sway, their combined support for extending the proposal beyond Part 121 operators could prompt the FAA to modify its NPRM.
Per the Department of Labor, there are 21 states that set meal period requirements for private sector employees—including flight crews and flight attendants—among which seven also have rest period requirements. In recent years, flight crews and flight attendants who have sued airlines over violations of these requirements have often prevailed, allowing them to claim damages.
In two 2021 court rulings cited in the NPRM, judges held that state meal and rest requirements for flight attendants are not preempted by the Airline Deregulation Act (ADA) of 1978 or other federal laws. The ADA prohibits any law that creates a “significant impact” on airline prices, routes, or services.
In another comment to the U.S. Transportation Department, the NBAA, NATA, VAI, and Association of Value Airlines (AVA) estimated that there are seven active Part 91K management specifications holders, 53 Part 125 certificate holders, and about 2,000 Part 135 certificate holders in the U.S.
The four groups said the FAA’s exclusion of these entities from the NPRM “appears to be an oversight” and that they arguably face greater impacts from different state and local rules.
“Creating a consolidated and uniform standard for federal preemption…is within the FAA’s regulatory authority and will provide clear and concise notice to state and local regulators who may otherwise attempt to regulate duty and rest periods,” the groups wrote in comments, which were due September 4.
What the NPRM Proposes
The NPRM aims to reinforce federal authority over aviation safety on a national level, including regulations governing flight and duty time, rest requirements, and meal breaks on flights within the U.S. Previous rulemaking has centered on crew breaks between shifts, but the July proposal tackles breaks during duty, including while flying.
The FAA asserts that those breaks are adequately covered by federal regulations. The NPRM explains that state meal and rest break mandates may require additional crewmembers, block passenger seats, increase labor costs, disrupt schedules, and change routes, therefore violating the ADA.
The proposal would require Part 121 certificate holders to ensure flight attendants remain available for safety duties—including responding to medical emergencies or dealing with unruly passengers—during their breaks. But it also proposes they ensure flight attendants have enough time to eat, drink, or use the restroom.
The NPRM could face pushback from unions representing flight crews.
“Instead of preemption, [the Association of Flight Attendants (AFA)] pushed the airlines to resolve the operational challenges of meal and rest law through a legislative fix that would codify our rights to bargain over these provisions,” AFA wrote in a 2022 news release.
The NBAA, though, contends that a lack of clarity on FAA preemption could create operational conflicts, interfere with emergency authority, increase costs and litigation exposure, or even undermine the safety of the National Airspace System (NAS).
“NBAA and partner associations are trying to prevent a patchwork of state aviation-related requirements,” said Brian Koester, NBAA’s senior director of government affairs, in a statement Wednesday. “The proposal focused on part 121 carriers but as we told the FAA, it’s just as important to establish the FAA’s singular authority over all types of flight operations.”
Extending Federal Authority
The six aviation organizations that sent comments to the FAA said they support the NPRM and “appreciate” the agency’s foresight to address the issue of federal preemption.
But they said that “clarity regarding FAA safety requirements and their preemptive effect is an issue of paramount importance” not only for Part 121 operators, but for aircraft and component manufacturers; design approval holders; aircraft owners and pilots; passenger, cargo, emergency response, and public service operators; fractional program managers; MRO organizations; and other businesses they represent.
The groups estimated that their members collectively represent approximately $339 billion in annual U.S. economic output and 1.33 million aerospace jobs.
“Allowing each jurisdiction to establish different safety requirements would create conflicting obligations, interfere with a pilot’s emergency authority, impede time-critical operations, undermine the consistent federal oversight upon which the NAS’ safety and efficiency depend, etc,” they wrote.
The organizations further argued that differing requirements increase product liability litigation exposure, insurance costs, certification uncertainty, and operating expenses that their members must bear.
They added that a “clear and singular” framework would support the introduction of uncrewed aircraft systems (UAS), advanced air mobility (AAM), and other new technologies in the NAS.
“Fragmentation in those fields would impede design and certification, investment, interstate operations and commerce, and the safe integration of new aircraft,” they wrote.
In comments to the DOT, the NBAA, NATA, VAI, and AVA contended that Part 91K, 125, and 135 entities are subject to the “same safety-critical crewmember functions, the same operational conflicts, and the same impact on prices, routes, and services” as Part 121 operators.
They could even face greater operational or safety impacts. For example, the groups wrote, “air ambulance missions routinely have specially qualified medical personnel on board the aircraft.”
“To allow these personnel to be subjected to state meal and rest break rules would present an untenable hurdle during flight and would conflict with the federally prescribed mandates,” they said.
A footnote in the comment encourages the FAA to also consider including commercial operations under Parts 133, 137, and “other similarly situated operators” in the NPRM.
“NBAA, on behalf of its members, will continue to encourage the FAA to apply this proposed rulemaking across a broader scope of operations in order to prevent a mix of state-based regulations and ordinances,” said Koester.