Flexibility vs. Abuse - How to Derogate?

With the new EU-OPS "Subpart Q" rules on Flight Time Limitations (FTL) having entered into force in all EU countries on 16 July, Europe now has a legally binding minimum set of safety rules aimed at preventing pilot fatigue. These new rules are not set in stone, though. The EU-OPS Regulation 1899/2006 has flexibility provisions that allow Member States to grant temporary exemptions and long-term derogations from Subpart Q. While such flexibility is welcome and necessary, these provisions risk being exploited by operators to the detriment of flight safety.

Until now, there are very few examples of temporary "exemptions" (under EU-OPS Art. 8.2) and derogations (Art. 8.3) - and the related procedures are largely untested waters. However, the first test case - a derogation request by DHL's Belgian branch 'EAT' (aiming at exceeding the Subpart Q limits for night flight duties) - gives rise to concern.

While DHL/EAT made an effort to comply with the formal procedural requirements for a long-term derogation, and while its request looks quite good on paper, the company failed:

  • to properly consult interested parties, as required under Subpart Q (1.1090, 5.1.1.) disregarding valid safety concerns raised by pilot representatives.
  • to prepare - and make public - a scientific safety study addressing all relevant issues and based on relevant data. The study produced by a well-reputed scientific body is a valuable step into the right direction. But EAT/DHL insisted on keeping this study secret and has not responded to concerns that the scientists might not have had access to all necessary data and information in order to make a solid safety case.
  • to establish a meaningful Fatigue Risk Management System. While their FRMS looks quite convincing, pilot representatives have serious reservations as to the actual use of this system and the involvement of flight crew.
  • to make public an internal fatigue study, apparently using Flight Data Monitoring to support their case, and to consult employees on the use of the data.

What could have been an opportunity to build 'best practice' for European derogations, i.e. making the process sound, transparent and based on an adequate scientific basis, EAT/DHL regrettably chose a different route. This route however cost the company a lot of time, effort and resources. Had it chosen to be transparent and participatory, involving its key operational employees - the pilots - the company could already have had its derogation approved for a long time. It would serve as an example for other companies on how to derogate while maintaining flight safety standards. Unfortunately, this turned out to be an example for bad practices.

But there is worse. Ireland - the home to companies like Ryanair - risk setting an unwelcome standard for how an Aviation Authority should not deal with derogations. While the Irish Aviation Authority insists that it is complying with the new EU-OPS rules and that "the prescribed processes are being followed", the reality might turn out to be quite different.

Since 16 July, an Irish AOC holder (also in the cargo sector) applies an FTL scheme that contravenes EU law. Despite of this, the scheme is reported to have received the IAA's official stamp of approval. No derogation process has been initiated vis-à-vis the European Commission - neither before 16 July nor after. No scientific assessment of the scheme has been carried out, nor mitigating measures identified, nor stakeholders involved. While the EAT/DHL case is bad practice, the Irish case risks becoming the example of worst practice in Europe.

But this is only the beginning - and possibly the tip of the iceberg. Subpart Q has been in force for only a short time and many operators are struggling to comply with the new rules, others are deliberately ignoring them for as long as they can. The national Authorities often don't have the resources to properly carry out their oversight duty and some prefer to simply look away. Yet others chose to offer temporary exemptions and delays for operators that are not ready yet. And all this despite the fact that both the operators and the national Authorities have had 18 months to prepare for this...

For example, Denmark seems to be allowing its operators to opt out of Subpart Q until 1 Jan. 2009. In the Netherlands, a 2-month extension for implementation has been granted and operators may soon obtain longer extensions. In Italy, operators are allowed to ignore Subpart Q's provisions on positioning. And other countries still seem to be deep in their legislative process.

This situation is highly undesirable. It could negatively affect the safety of passengers and crew. And it puts pilots in a difficult position when their companies roster duties that contravene EU safety law. Who is responsible in case of an incident or accident where fatigue played a role?

Obviously, the Commission must act against such non-compliance by operators and their national operators. Also the Commission must facilitate transparency and encourage "whistle blowing" from stakeholders, by setting up a webpage listing all EU-OPS related notifications and applications for exemptions and derogations and inviting stakeholders to provide information on these and other cases.

But again, let's not underestimate the importance of getting the derogation procedures right. Because what looks today as a small, company specific derogation request that might affect only this one company could quickly have EU-wide implications.

This is because any derogation - once it has been approved at EU level - will become available to every operator in the EU who performs comparable operations, provided their home country decides so. Hence, a badly run derogation process, not based on a sound scientific basis and solid measures that mitigate safety risks, could result in an unsafe FTL scheme becoming available all over Europe.

With ever growing competitive pressures and skyrocketing fuel costs, operators will increasingly be pushed to request derogations to 'optimise' the output of their crew and operations. If such requests are sound, transparent and participatory, resulting in a safe FTL schemes supported by solid Fatigue Risk Management Systems, there is no reason not to go down that route. For this to happen, though, operators and regulators need to behave responsibly and focus on the ultimate aim of FTL schemes - flight safety.

Representing 38.100 pilots from 34 European countries, ECA is keen to make derogations a success and to help the airlines obtain the flexibility they need while keeping safety standards high. Safety and flexibility are not incompatible - all depends on how you approach it! Let's approach it well!

Philip von Schöppenthau