[Federal Register Volume 91, Number 127 (Monday, July 6, 2026)]
[Proposed Rules]
[Pages 40902-40909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-13546]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 117 and 121
[Docket No. FAA-2026-6739; Notice No. 26-06]
RIN 2120-AM27
Ensuring Passenger Safety by Preempting Duty and Rest
Requirements
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FAA proposes to clarify that FAA regulations governing
flightcrew member and flight attendant duty and rest periods preempt
all State and local meal and rest break requirements. This proposed
rule also explains the agency's view that State meal and rest break
requirements are preempted by the Airline Deregulation Act of 1978
(ADA) due to their significant impact on air carrier prices, routes,
and services.
DATES: Send comments on or before September 4, 2026.
[[Page 40903]]
ADDRESSES: Send comments identified by docket number FAA-2026-6739
using any of the following methods:
Federal eRulemaking Portal: Go to www.regulations.gov and
follow the online instructions for sending your comments
electronically.
Mail: Send comments to Docket Operations; U.S. Department
of Transportation (DOT), 1200 New Jersey Avenue SE, West Building, 5th
Floor (W58-213), Washington, DC 20590.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W58-213 of the West Building 5th Floor at 1200 New
Jersey Avenue SE, Washington, DC 20590 between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at (202) 493-2251.
Docket: Background documents or comments received may be read at
www.regulations.gov at any time. Follow the online instructions for
accessing the docket or go to the Docket Operations in Room W58-213 of
the West Building 5th Floor at 1200 New Jersey Avenue SE, Washington,
DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Technical information: Daniel Kelman,
Flight Standards Service, Air Transportation Division, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone (202) 267-8166; email [email protected].
Legal information: Adam Siple, Assistant Chief Counsel, Office of
the Chief Counsel, Information, Data, and Technology Law Division,
Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; telephone (202) 267-0412; email [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background and Executive Summary
II. Authority for this Rulemaking
III. Discussion of the Proposal
A. The Need for FAA to Clarify the Scope of Preemption
B. Field Preemption
C. Conflict with Federal Safety Regulations
D. Airline Deregulation Act Express Preemption
E. Flight Attendant Requirements
IV. Regulatory Notices and Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13211, Regulations that Significantly Affect
Energy Supply, Distribution, or Use
C. Executive Order 13609, International Cooperation
D. Executive Order 14192, Unleashing Prosperity Through
Deregulation
VII. Additional Information
A. Comments Invited
B. Confidential Business Information
C. Electronic Access and Filing
D. Small Business Regulatory Enforcement Fairness Act
I. Background and Executive Summary
Recent litigation prompted FAA to review regulations relating to
duty and rest for flightcrew members and flight attendants. To
forestall any confusion relating to the preemptive effect of those
regulations, FAA proposes clarifying regulations.
FAA proposes to add Sec. 121.468 to title 14 of the Code of
Federal Regulations to clarify and reiterate that FAA's flight
attendant duty and rest period regulations preempt State and local laws
that are covering the same subject matter.\1\ While Federal regulations
concerning flightcrew members have consistently preempted State
action,\2\ there have been efforts to apply some State laws to flight
attendants.\3\ FAA regulations relating to flightcrew members have
consistently preempted State and local labor laws, and FAA proposes new
Sec. 117.31 as a conforming amendment to ensure FAA occupies the
entire field of flightcrew member regulations to prevent future
misapplications of State and local laws or misinterpretations of FAA
regulations (as further discussed in section III of this preamble).
Further, FAA asserts that the same field and conflict preemption that
applies to flightcrew members applies to flight attendants because FAA
thoroughly occupies this relevant field and State laws may conflict
with FAA safety requirements. FAA proposes these regulations to further
assert comprehensive regulation of flight attendant duty and rest to
include meal and rest breaks during a duty period.
Like flightcrew members, flight attendants perform critical safety
functions. Flight attendants are responsible for taking action during
emergencies, including administering first aid, conducting aircraft
evacuations, responding to inflight fires, managing medical
emergencies, and handling passengers who threaten the safety of other
passengers or might be unruly or disruptive.\4\ FAA's regulations
ensure that flight attendants are available to perform these duties as
needed while also ensuring that post duty rest periods provide
sufficient time to prevent fatigue. Conflicting State or local laws
would create a complex patchwork of regulatory requirements that would
frustrate the Federal regulatory scheme and inhibit aviation safety.
Therefore, FAA proposes adding Sec. Sec. 117.31 and 121.468 to
ensure the duty and rest requirements of flightcrew members and flight
attendants are subject only to Federal aviation regulations.
To address the inconsistency created by judicial rulings and to
ensure a cohesive national safety standard, FAA proposes a rule
clarifying that a single, uniform set of requirements applies to the
duty, rest, and break periods for both flightcrew members and flight
attendants.
This proposed rule clarifies that FAA's regulations--including 14
CFR part 117 and 14 CFR 121.467--occupy the entire field of flightcrew
member and flight attendant duty and rest, including meal and rest
breaks during duty periods. The same principles that support preemption
of State meal and rest break laws for pilots should apply with equal
force to flight attendants. This proposed rule, moreover, clarifies
that air carriers may not permit flightcrew members or flight
attendants to take off-duty breaks during a duty period and any State
law requiring such breaks conflicts with FAA regulations and is
preempted.
II. Authority for This Rulemaking
FAA's authority to issue rules on aviation safety is found in Title
49 of the United States Code (U.S.C.). Subtitle I, section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. Section 44701(a)(4) requires the Administrator to promulgate
regulations in the interest of safety for the ``maximum hours or
periods of service of airmen and other employees of air carriers.''
Section 44701(a)(5) requires the Administrator to promulgate
``regulations and minimum standards for cybersecurity and other
practices, methods, and procedures that the Administrator finds
necessary for safety in air commerce and national security.'' In
addition, 49 U.S.C. 44701(d)(1)(A) specifically states that the
Administrator, when prescribing safety regulations, must consider the
duty of an air carrier to provide service with the highest possible
degree of safety in the public interest. Such authority applies to the
oversight FAA
[[Page 40904]]
exercises to ensure safety of air carrier operations, including
crewmember flight, duty, and rest requirements.
III. Discussion of the Proposal
A. The Need for FAA To Clarify the Scope of Preemption
Recent litigation--most notably Bernstein v. Virgin America, Inc.
and Wilson v. SkyWest Airlines, Inc.\5\--over the applicability of
State meal and rest break laws to flight attendants has underscored the
need to propose regulations to remove confusion over which laws prevail
in this field. Specifically, some State laws \6\ that have been applied
to flight attendants pertain to when he or she is on duty or permitted
to take time off during their duty period to have a meal or rest break;
however, for the reasons discussed below, FAA regulations supersede
these State laws and this proposed rule seeks to make that
clarification. FAA proposes including paragraphs (b) of Sec. Sec.
117.31 and 121.468 to clarify and reiterate that FAA's flightcrew
member and flight attendant duty and rest period regulations preempt
State and local laws related to flightcrew member and flight attendant
duty and rest periods, including meal and rest breaks.
B. Field Preemption
Under principles of field preemption, ``State law is pre-empted if
federal law so thoroughly occupies a legislative field as to make
reasonable the inference that Congress left no room for the States to
supplement it.'' \7\ When ``Congress has entrusted an agency with the
task of promulgating regulations to carry out the purposes of a
statute, as part of the preemption analysis [courts] must consider
whether the regulations evidence a desire to occupy a field
completely.'' \8\ Further, ``if the pervasiveness of the regulations
indicate that the agency sought to occupy the field, the question is
whether that action was within the scope of the agency's delegated
authority.'' \9\
Congress has given FAA comprehensive authority to ensure the safety
of air travel and the efficient use of the airspace.\10\ This includes
a specific statutory mandate to regulate ``the maximum hours or periods
of service of airmen and other employees of air carriers . . . .'' \11\
FAA has issued regulations that cover every aspect of aviation safety.
Consistent with FAA's statutory mandate, these regulations include duty
and rest regulations for flightcrew members and flight attendants. FAA
regulations require airlines to provide flight attendants on each
flight and contemplate that those flight attendants will be available
to ensure passenger safety.\12\ FAA imposes specific requirements
related to flight attendant number and activities during boarding,
takeoff, landing, taxi, deplaning, and when passengers are on board a
stationary aircraft on the ground.\13\ FAA has also issued detailed
regulations setting the maximum length of flight attendant duty periods
and minimum length of flight attendant rest periods.\14\ Through these
regulations, FAA has not only occupied the field of aviation safety
generally, but has specifically occupied the field of flight attendant
duty regulations, consistent with the statutory requirement that it
regulate ``the maximum hours or periods of service of airmen and other
employees of air carriers.'' \15\ Therefore, State and local laws
pertaining to flight attendant duty or rest periods, including rest and
meal breaks, are preempted by FAA's regulations because FAA thoroughly
occupies this relevant field and issues these kinds of regulations in
accordance with its statutory authority.
Despite this Federal regulatory framework, FAA is aware of efforts
to apply State meal and rest break laws to flight attendants, including
when those flight attendants are on board an aircraft in flight. This
proposed rule clarifies that such State requirements are preempted.
This proposed rule also intends to fill any potential gap in the field
of FAA's regulation of flight attendant duty and rest, including meal
and rest breaks, with provisions requiring air carriers to ensure
flight attendants are available to perform safety-related
responsibilities during a flight duty period, while also providing
allowance for meeting physiological needs. Air carriers already
incorporate meal and rest breaks for flight attendants in their
operations as necessary and these provisions are not intended to alter
the Federal regulatory status quo. FAA invites comments on any
unintended effect of these provisions on air carrier operations.
C. Conflict With Federal Safety Regulations
State laws, including the California law at issue in Bernstein, are
preempted when they conflict with Federal law. FAA regulations define
duty periods for flightcrew members and flight attendants and are
designed to ensure that flightcrew members and flight attendants are
available to perform critical safety duties.\16\ To the extent that a
State law purports to restrict the availability of a flightcrew member
or a flight attendant to perform their safety-related duties during a
duty period, such a law conflicts with the Federal regulatory framework
and is preempted.
Under 14 CFR 121.467(a), the ``duty period'' for a flight attendant
is defined as the elapsed time from reporting for an assignment until
the final release. Under 14 CFR 117.3, the ``flight duty period'' for a
flightcrew member is defined as ``a period when a flightcrew member is
required to report for duty with the intention of conducting a flight *
* * and ends when the aircraft is parked for the last flight and there
is no intention for further aircraft movement.'' For both flightcrew
members and flight attendants, this duty period can include times
before, between, and after flights. FAA regulations require that
flightcrews remain on-duty and on-call throughout this entire period to
respond to safety needs. Various State laws require employees on break
to be relieved of all duty or employer control and free to come and
go.\17\ Applying this requirement to a flight in progress is physically
impossible, as a flight attendant or flightcrew member cannot be free
to come and go while mid-flight. These laws would also present clear
and significant safety risks.
The primary mission of flight attendants is to ensure safety, a
role that is undermined if a flight attendant is legally ``off-duty''
during an emergency. Flight attendants need to be ready to manage land
and water evacuations, control inflight fires, manage medical
emergencies, and handle unruly passengers among other tasks. In the
event an emergency evacuation is necessary, flight attendants must need
to be available immediately to assist when mere seconds can make a
difference in the number of fatalities involved.\18\
In addition, safety response relies on highly coordinated teamwork
among flight attendants and flightcrew members. FAA regulations require
airlines to provide FAA-approved crew resource management training to
flightcrew members and flight attendants.\19\ This FAA-required
training as part of an FAA-approved air carrier training program serves
to ensure appropriate interaction between flightcrew members and flight
attendants, especially during emergency situations. This training
contemplates flightcrew members and flight attendants who are not only
available, but are required to perform safety functions. State laws
mandating that flightcrew members or flight attendants be ``off-duty''
and free from responsibility during any portion of a duty period would
conflict with this FAA-required crew resource management training,
which is not
[[Page 40905]]
designed to manage crew unavailability due to State laws.
In contrast to these State laws that present safety risk, FAA's
regulations are intended to increase safety through fatigue mitigation,
which FAA addresses by regulating rest periods between shifts rather
than during them. Most recently, at Congress's direction,\20\ FAA
issued the 2022 Final Rule increasing the mandatory rest period for
flight attendants to 10 consecutive hours to ensure they receive
adequate rest and are fully recovered before starting a new duty
period.\21\
Flightcrews function as highly coordinated safety teams. Rotating
``on-duty'' and ``off-duty'' members during a single flight segment
increases the risk of confusion and undermines safety protocols. This
is especially true since FAA regulations apply to all flight attendants
on board a flight, not just a minimum required number. There is no
Federal provision that allows a ``surplus'' attendant to be entirely
off-duty and unresponsive while the aircraft is in operation.
There are also economic impacts that increased flight attendant
coverage would impose. Forcing airlines to block passenger seats for
``relief'' crew members reduces available capacity, increases ticket
prices, and may make low-margin regional routes economically unviable.
Finally, even with extra staff, the requirement for a crew member to be
``free of all restraint'' cannot be met while they are confined to an
aircraft in flight.
In contrast to general-purpose State meal and rest break laws, FAA
believes that the existing status quo under FAA regulations, which is a
result of both FAA's rules about duty periods, collective bargaining
agreements (CBA) reached between air carriers and labor unions, and
other industry standards and specific air carrier crew resource
management procedures, provides the appropriate policy balance. These
provide a specialized, industry-specific balance between flight
attendant health and aviation safety and utilize tailored provisions
concerning meals and other rest breaks \22\ that do not conflict with
FAA regulations or otherwise trigger the dangerous safety and
operational conflicts inherent in rigid, ``off-duty'' State mandates.
Although at this time FAA is not proposing to codify the approach taken
in any specific CBA or crew resource management procedure, FAA is
requesting comment on whether to do so in the final rule. In
particular, if FAA proceeds to a final rule FAA seeks comments on what
specific terms should be included in a regulation to ensure that safety
is maintained without unnecessarily constricting any future agreements
between air carriers and labor unions or air carrier procedures. FAA
also seeks comments on if additional guidance material would be
desirable on FAA regulations relating to flight attendant rest and duty
periods or preemption.
D. Airline Deregulation Act Express Preemption
FAA believes its occupation of the field in aviation safety and the
efficiency of the airspace and conflicts with its existing regulations
concerning flight duty and rest are sufficient to show that State meal
and rest break requirements are preempted. That said, these laws, if
not preempted, would also have a ``significant impact'' on airline
prices, routes, and services and thus are also preempted under the
Airline Deregulation Act of 1978 (ADA),\23\ which was enacted to ensure
that the ``maximum reliance on competitive market forces'' remains the
primary driver of efficiency, innovation, and low prices in the
aviation industry.
To protect this Federal interest, the ADA's express preemption
provision prohibits States from enacting or enforcing any law ``related
to a price, route, or service of an air carrier.'' The Supreme Court
has made clear that this preemption provision is to be read
expansively, first in Morales v. Trans World Airlines, Inc.,\24\ and
again in Rowe v. New Hampshire Motor Transportation Ass' \25\ The
Supreme Court established in Morales v. Trans World Airlines, Inc. that
State laws are preempted if they have a ``significant impact'' on
airline rates. Complying with State laws would require airlines to hire
additional crew members to stagger ``off-duty'' breaks, which would
have direct labor and operational costs. Airlines would be forced to
block off passenger seats to accommodate relief crew members, foregoing
the revenue that could have been made through the sale of those seats.
On regional aircraft with limited seating, the loss of even one or two
seats for additional crew can eliminate the economic viability of the
flight and may result in the elimination of low margin routes serving
small communities. Applying these changes to the flights across their
networks would result in significant costs to the airlines. These
increased costs would inevitably be passed to consumers through
significantly higher ticket prices.
Finally, a central purpose of the ADA's preemption clause is to
prevent a patchwork of varying State requirements that would interfere
with interstate commerce. State meal and rest break laws are not
uniform and may at times be conflicting. For example, New York's labor
laws require meal breaks at specific times of day (e.g., between 11:00
a.m. and 2:00 p.m.), while other States may use different intervals.
Airlines providing interstate service are not required to and cannot
practically track and comply with disparate laws for every crew member
across different States on a single flight. This complexity creates
regulatory uncertainty that disrupts standard nationwide scheduling and
staffing practices which in turn has a significant effect on airline
services, contrary to the prohibitions on State action in the ADA.
Unlike short-haul truck drivers, an inapt parallel drawn in
Bernstein, airline crews cannot readily interrupt operations to
accommodate State-mandated breaks without fundamentally altering and
affecting the services and prices Congress intended to deregulate. Such
a regime of multiple, conflicting State meal and rest break
requirements would frustrate airlines' ability to provide safe,
efficient and timely service to the travelling public throughout the
United States.
E. Flight Attendant Requirements
In 14 CFR 121.467(a), a flight attendant serving in part 121
operations is defined as an individual, other than a flightcrew member,
who is assigned by a certificate holder to duty in an aircraft during
flight time and whose duties include activities related to ensuring
cabin safety.\26\ Section 121.391 specifies the minimum number of
flight attendants required on board a flight, based on maximum payload
capacity and seating capacity, for certificate holders conducting
passenger-carrying operations under part 121.\27\ Flight attendants are
responsible for taking action during emergencies, including
administering first aid, conducting aircraft evacuations, responding to
inflight fires, managing medical emergencies, and handling passengers
who threaten the safety of other passengers or might be unruly or
disruptive.\28\ They also need to be prepared to respond to situations
that could threaten the safety of the passengers and the flight,
including turbulent air, airplane decompression, and hijackings. Flight
attendants need to know the location of emergency exits, fire
extinguishers, first aid kits, flotation devices, oxygen masks, and
emergency slides, and check emergency equipment before flight. In
addition, they need to assess and verify the suitability of passengers
that occupy exit seating, brief passengers on safety equipment and
evacuation and emergency landing procedures, and ensure compliance
[[Page 40906]]
with applicable safety and security regulations. A flight attendant
needs to be able to perform these responsibilities during their duty
period.
Under 14 CFR 121.467, duty period is defined as ``the period of
elapsed time between reporting for an assignment involving flight time
and release from that assignment by the certificate holder conducting
domestic, flag or supplemental operations.'' FAA establishes duty
period limitations to ensure flight attendants do not become overly
fatigued during flight assignments to enhance the safety of the flying
public.\29\ In addition, the duty period limitations are designed to
suit all operations that require flight attendants without imposing a
significant burden on operators.\30\
A designated ``off-duty'' meal or rest break during a flight
attendant's duty period when he or she would be unavailable to perform
cabin safety-related responsibilities would pose a risk to aviation
safety.
Flight attendants serve as a core component in cabin safety
responsibilities. One of those responsibilities includes handling
passengers who threaten the safety of other passengers or might be
unruly or disruptive. Over the past five years, FAA received 14,343
reports of unruly passengers on flights.\31\ Flight attendants handle
these passengers to ensure the safety of other passengers. If a flight
attendant is permitted during their duty period to be relieved of their
safety responsibilities, including handling unruly passengers (e.g., a
meal or rest break), there would be a critical gap in cabin safety
coverage during the flight. In this situation, a flight attendant may
not be available to handle a passenger's disruptive or violent behavior
that could harm other passengers or cause risk to the operation of the
aircraft. Flight attendants need to be available and ready to perform
safety procedures during their duty period.
Another example of the aviation safety need for flight attendants
to remain on duty during their duty period and perform safety
responsibilities is the growing number of lithium battery events
involving smoke, fire, or extreme heat in the aircraft cabin.
Passengers frequently carry portable electronic devices powered by
lithium-ion batteries, including cell phones, laptops, portable
rechargers, watches, and cameras. As more of these lithium-ion battery
devices are introduced to the aircraft cabin, the risk of smoke, fire,
or extreme heat increases. Between March 3, 2006 and January 8, 2026,
there were 693 verified incidents of lithium battery related events
involving, smoke, fire or extreme heat.\32\ The frequency of incidents
has increased progressively from 39 incidents in 2020 to 93 incidents
in 2025.\33\ Flight attendants need to respond quickly to such an event
to mitigate the risk of onboard lithium battery fires; this need is
heightened given the likelihood that the number of these events will
continue to increase. As previously stated, if a flight attendant was
relieved of their safety responsibilities during a duty period, then he
or she would not be responsible for responding to an emergency such as
a fire, thus placing aviation safety at risk.
Therefore, FAA proposes new Sec. Sec. 117.31(a) and 121.468(a) to
ensure that FAA regulation of flight attendant and flightcrew member
duty and rest periods preempt State and local laws and to clarify the
availability of meal and rest breaks for flight attendants while on
duty. Including meal or rest breaks during a duty period in which the
flight attendant is relieved from all responsibilities does not enhance
the safety of the flying public nor does it relieve a burden on
certificate holders. As with pilots, FAA recognizes flight attendants
will have physiological needs (e.g., using the restroom and consuming
food and drink) during their duty period. Given this context, FAA
understands many CBAs between certificate holders and labor unions or
certificate holder's standard operating procedures cover the topic of
physiological needs (e.g., meal and rest breaks). As such, FAA intends
for certificate holders to determine how to ensure that all flight
attendants are available to perform safety-related responsibilities and
also be able to meet physiological needs during a duty period.
FAA proposes a conforming amendment by adding Sec. 117.31(a) to
forestall any confusion for flightcrew members responsibilities and to
avoid any implication that FAA does not intend to preempt State and
local law with regard to flightcrew members.\34\
In addition, because an air carrier may apply the duty and rest
provisions of part 117 to flight attendants, pursuant to Sec.
121.467(c), FAA believes it is necessary to include conforming
amendments in part 117.
Finally, FAA proposes a technical amendment to revise the authority
citation for 14 CFR part 117 that would remove the citation to title 49
of the United States Code (49 U.S.C.) 106(g) to reflect amendments
resulting from the FAA Reauthorization Act of 2024 and would add the
citation to 49 U.S.C. 106(f) to reflect FAA's current statutory
rulemaking authority.\35\
IV. Regulatory Notices and Analyses
A. Regulatory Impact Analysis
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') require agencies
to regulate in the ``most cost-effective manner,'' to make a ``reasoned
determination that the benefits of the intended regulation justify its
costs,'' and to develop regulations that ``impose the least burden on
society.'' The Office of Management and Budget determined this proposed
rule is a significant regulatory action as defined in section 3(f) of
Executive Order (E.O.) 12866.
The decision in Bernstein and the potential for similar litigation
to apply state meal and rest break laws to flight attendants presents
the possibility of airlines having to comply with a patchwork of
requirements. These requirements could also affect individual flight
attendants at the same airline differently. There have been efforts to
mitigate the decision--in March of 2023, the State of California
amended its Labor Code (Sec. 512.2) to exempt flight attendants from
standard meal and rest period requirements if they are covered by a CBA
that addresses these breaks. However, not all airlines are covered by
collective bargaining agreements.
The proposed rule would clarify that FAA regulations pertaining to
flightcrew member and flight attendant duty and rest periods preempt
state-mandated meal and rest break laws. In doing so, the proposed rule
would prevent the potential patchwork of requirements that could result
through litigation. State meal and rest break requirements differ and
the nature and result of any future litigation is unknown. Also unknown
are subsequent actions, such as the amendment to California Labor Code,
that might mitigate the impact of any decisions. However, the types of
impacts industry may avoid by not having to comply with different state
requirements include staffing flights with additional flight
attendants; reserving passenger seats for additional flight attendants;
disruption to flight operations; and wider route implications from
increased costs. Airlines may also experience efficiency gains from
only having to track and comply with FAA regulations for flight
attendants.
In comparison, the ruling in Bernstein resulted in damages payable
to flight attendants who were not afforded State mandated meal and rest
breaks. The proposed rule would clarify that these State laws do not
apply to flight attendants and prevent or discourage
[[Page 40907]]
similar litigation. While airlines would not have to comply with the
State requirements, flight attendants would also not be afforded any
incremental breaks compared to those already identified in CBAs or
airline policies.
In summary, FAA anticipates the proposed rule will prevent airlines
from having to comply with differing State meal and rest break
requirements for flight attendants that could be costly and disruptive
to operations. Flight attendants would not receive meal and rest breaks
based on State laws and would instead continue under existing CBAs and
airline policies. FAA requests comments on this analysis and the
identified uncertainties.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L.
111-240), requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term ``small entities''
comprises small businesses and not-for-profit organizations
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
If an agency determines a rulemaking will not result in a
significant economic impact on a substantial number of small entities,
the head of the agency may so certify under section 605(b) of the RFA.
The proposed rule does not impose costs on any entities, including
small entities (individuals are not small entities under the RFA).
Also, the economic impacts of this rule with respect to cost savings
are uncertain as they relate to potential future litigation. Therefore,
FAA certifies the proposed rule would not result in a significant
economic impact on a substantial number of small entities. FAA solicits
comments regarding this determination.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
FAA has assessed the potential effect of this proposed rule and
determined it ensures the safety of the American public and does not
exclude imports that meet this objective. As a result, FAA does not
consider this proposed rule as creating an unnecessary obstacle to
foreign commerce.
D. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. An unfunded mandate is a regulation that requires a State,
local, or Tribal government or the private sector to incur direct costs
without the Federal Government having first provided the funds to pay
those costs. FAA determined the proposed rule would not result in the
expenditure of $187,000,000 or more ($100,000,000 adjusted for
inflation using the most current Implicit Price Deflator for the Gross
Domestic Product) by State, local, or Tribal governments, in the
aggregate, or the private sector, in any one year.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
FAA to consider the impact of paperwork and other information
collection burdens imposed on the public. FAA has determined there
would be no new requirement for information collection associated with
this proposed rule.
F. International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.
G. Environmental Analysis
FAA has analyzed the environmental impacts of this proposed rule
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321 et seq.). FAA has determined this rule is categorically
excluded pursuant to Paragraph B-2.6(f) of appendix B to FAA Order
1050.1G, FAA National Environmental Policy Act Implementing
Procedures.\36\ Categorical exclusions are categories of actions the
agency has determined normally do not significantly affect the quality
of the human environment and therefore do not require either an
environmental assessment (EA) or environmental impact statement
(EIS).\37\ In analyzing the applicability of a categorical exclusion,
the agency must also consider whether extraordinary circumstances are
present that would warrant the preparation of an EA or EIS.\38\ In
analyzing the applicability of a categorical exclusion, the agency must
also consider whether extraordinary circumstances are present that
would warrant the preparation of an EA or EIS.\39\ This rulemaking,
which proposes to preempt duty and rest requirements to ensure
passenger safety, is categorically excluded pursuant to Paragraph B-
2.6f of FAA Order 1050.1G: ``Regulations, standards, and exemptions
(excluding those that if implemented may cause a significant impact on
the human environment.'' FAA does not anticipate any environmental
impacts, and there are no extraordinary circumstances present in
connection with this rulemaking.
V. Executive Order Determinations
A. Executive Order 13132, Federalism
FAA has analyzed this proposed rule under the principles and
criteria of Executive Order (E.O.) 13132, Federalism. This proposed
rule has ``federalism implications'' as defined by E.O. 13132, because
it would have a ``substantial direct effect'' on the States and on the
relationship between the Federal Government and the States. In
accordance with section 2 of E.O. 13132, FAA has determined that the
problem of inconsistent aircraft crew duty regulations is of ``national
significance'' and requires a uniform Federal solution. Under section
4, an agency may only preempt State law when a statute contains express
preemption or there is ``clear evidence'' that Congress intended
preemption. FAA relies on the express preemption provision of the ADA
(49 U.S.C. 41713(b)(1)) and clear evidence that State meal and rest
break laws and rules ``directly conflict'' with Federal safety
objectives. FAA has restricted this preemption to the ``minimum level
necessary'' to achieve the safety and economic objectives of the
Federal Aviation Act and the ADA. With regard to consultation with
State and local officials, FAA has been clear throughout the litigation
in Bernstein that it believes that these laws should be preempted and,
in this NPRM, requests
[[Page 40908]]
comment from States and local governments on this issue.
B. Executive Order 13211, Regulations that Significantly Affect Energy
Supply, Distribution, or Use
FAA analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. FAA has determined it would not be a
``significant energy action'' under the Executive order and would not
be likely to have a significant adverse effect on the supply,
distribution, or use of energy.
C. Executive Order 13609, Promoting International Regulatory
Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation, promotes international regulatory cooperation to meet
shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. FAA has analyzed
this action under the policies and agency responsibilities of Executive
Order 13609 and has determined this action would have no effect on
international regulatory cooperation.
D. Executive Order 14192, Unleashing Prosperity Through Deregulation
This proposed rule, if finalized as proposed, is expected to be an
Executive Order 14192 deregulatory action.
VI. Additional Information
A. Comments Invited
FAA invites interested persons to participate in this rulemaking by
submitting written comments, data, or views. FAA also invites comments
relating to the economic, environmental, energy, or federalism impacts
that might result from adopting the proposals in this document. The
most helpful comments reference a specific portion of the proposal,
explain the reason for any recommended change, and include supporting
data. To ensure the docket does not contain duplicate comments,
commenters should submit only one time if comments are filed
electronically, or commenters should send only one copy of written
comments if comments are filed in writing.
FAA will file in the docket all comments it receives, as well as a
report summarizing each substantive public contact with FAA personnel
concerning this proposed rule. Before acting on this proposal, FAA will
consider all comments it receives on or before the closing date for
comments. FAA will consider comments filed after the comment period has
closed if it is possible to do so without incurring expense or delay.
FAA may change this proposal in light of the comments it receives.
Privacy: In accordance with 5 U.S.C. 553(c), FAA solicits comments
from the public to inform its rulemaking process better. FAA posts
these comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
B. Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this NPRM contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this NPRM, it is important you
clearly designate the submitted comments as CBI. Please mark each page
of your submission containing CBI as ``PROPIN.'' FAA will treat such
marked submissions as confidential under the FOIA, and they will not be
placed in the public docket of this NPRM. Submissions containing CBI
should be sent to the person in the FOR FURTHER INFORMATION CONTACT
section of this document. Any commentary FAA receives which is not
specifically designated as CBI will be placed in the public docket for
this rulemaking.
C. Electronic Access and Filing
A copy of this NPRM, all comments received, any final rule, and all
background material may be viewed online at www.regulations.gov using
the docket number listed above. Electronic retrieval help and
guidelines are available on the website. It is available 24 hours each
day, 365 days each year. An electronic copy of this document may also
be downloaded from the Office of the Federal Register's website at
www.federalregister.gov and the Government Publishing Office's website
at www.govinfo.gov. A copy may also be found at FAA's Regulations and
Policies website at www.faa.gov/regulations_policies.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.
D. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document may
contact its local FAA official, or the person listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the internet, visit www.faa.gov/regulations_policies/rulemaking/sbre_act/.
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\1\ FAA also proposes a conforming amendment to Sec. 117.31(b)
to mirror the proposed language in Sec. 121.468(b) to reiterate FAA
regulations preempt State laws.
\2\ See Ventress v. Japan Airlines, 747 F.3d 716 (9th Cir.
2014); Kohr v. Allegheny Airlines, Inc., 504 F.2d 400, 404 (7th Cir.
1974); French v. Pan Am Exp., Inc., 869 F.2d 1, 5 (1st Cir. 1989).
\3\ See, e.g., Bernstein v. Virgin Am., Inc., 3 F.4th 1127 (9th
Cir. 2021).
\4\ Flight Attendant Duty Period Limitations and Rest
Requirements final rule, 87 FR 61452 (Oct. 12, 2022).
\5\ No. 19-CV-01491-VC, 2021 WL 2913656 (1 (N.D. Cal. July 12,
2021) (``The plaintiffs' meal and rest break claims are not
preempted by either the Airline Deregulation Act or the Federal
Aviation Act. This result is compelled by the Ninth Circuit's
decision in Bernstein v. Virgin America, Inc., where the court held
that California's meal and rest break requirements were not
preempted by either statute as applied to the airline industry. 990
F.3d 1157, 1167-1170 (9th Cir. 2021).'').
\6\ See Colo. Code Regs. Sec. 1103-1-5.1; Mass. Gen. Laws ch.
149, Sec. Sec. 100-101; Minn. R. 5200.0120(4); Or. Admin. R. 839-
020-0050(2)(a). See Cal. Lab. Code Sec. 512; 7 Colo. Code Regs.
Sec. 1103-1-5.1; Conn. Gen. Stat. Sec. 31-51ii(a); Del. Code Ann.
tit. 19, Sec. 707(a); 820 Ill. Comp. Stat. 140/3; Ky. Rev. Stat.
Ann. Sec. 337.355; Me. Rev. Stat. Ann. tit. 26, Sec. 601; Mass.
Gen. Laws ch. 149, Sec. Sec. 100-01; Minn. Stat. Sec. 177.254(3);
Minn. R. 5200.0120(4); Nev. Rev. Stat. Sec. 608.019(1); N.H. Rev.
Stat. Sec. 275:30-A; N.Y. Lab. Law Sec. 162; N.D. Admin. Code 46-
02-07-02(5); Or. Admin. R. 839-020-0050(2); R.I. Gen. Laws Sec. 28-
3-14; Tenn. Code Ann. Sec. 50-2-103(h); Wash. Admin. Code Sec.
296-126-092(1); W. Va. Code Sec. 21-3-10a.
\7\ Nat'l Fed'n of the Blind v. United Airlines, Inc., 813 F.3d
718, 733 (9th Cir. 2016).
\8\ Id.
\9\ Id.
\10\ See, e.g., 49 U.S.C. 44701(a) (requiring FAA to issue
regulations to ``promote safe flight of civil aircraft in air
commerce''); id. Sec. 40103(b)(2) (requiring FAA to ``prescribe air
traffic regulations'').
\11 \ 49 U.S.C. 44701(a)(4).
\12\ 14 CFR 121.391.
\13\ 14 CFR 121.391(d), 121.393, 121.394.
\14\ 14 CFR 121.467.
\15\ 49 U.S.C. 44701(a)(4).
\16\ See 14 CFR 117.3 and 14 CFR 121.467.
\17\ See footnote 7.
\18\ See 14 CFR 25.803 (FAA airworthiness regulation that
requires a demonstration that an airplane can be evacuated within 90
seconds under simulated emergency conditions).
\19\ 14 CFR 121.404.
\20\ Section 335(a) of the FAA Reauthorization Act of 2018 (Pub.
L. 115-254, 132 Stat. 3186 (Oct. 5, 2018), codified at 49 U.S.C.
44701 note.
\21\ See Flight Attendant Duty Period Limitations and Rest
Requirements final rule, 87 FR 61452 at 61457.
\22\ See, e.g., CBA between American Airlines and AFPA, Section
4 (Expenses) and Section 38 (Crew Rest), available at www.apfa.org/contract/; CBA Between Alaska Airlines and AFPA, Letter of Agreement
10, ``Flight Attendant Onboard Breaks,'' available at https://afaalaska.org/wp-content/uploads/2025/11/2025-2028-AFA-Alaska-CBA-Interim-Document-11.21.2025.pdf.
\23\ Pub. L. 95-504, 92 Stat. 1705 (Oct. 24, 1978).
\24\ 504 U. S. 374 (1992).
\25\ 552 U.S. 364 (2008).
\26\ 14 CFR 121.467(a).
\27\ 14 CFR 121.391 provides that a certificate holder may,
however, use more than the required number of flight attendants.
\28\ See generally Flight Attendant Duty Period Limitations and
Rest Requirements final rule, 87 FR 61452 (Oct. 12, 2022).
\29\ Flight Attendant Duty Period Limitations and Rest
Requirements 59 Federal Register 42977-42978 (Aug. 19, 1994).
\30\ Id. at 42978.
\31\ Federal Aviation Administration, ``Dangerous Behavior
Doesn't Fly,'' www.faa.gov/unruly.
\32\ Federal Aviation Administration, ``Lithium Battery
Incidents'' www.faa.gov/hazmat/resources/lithium_batteries/incidents.
\33\ Id.
\34\ FAA does not intend to alter the status quo of flightcrew
member duty as defined in Sec. 117.3 and the definition of a
flightcrew member in Sec. 1.1.
\35\ Pub. L. 118-63, sec. 204, 138 Stat. 1041 (May 16, 2024).
\36\ 90 FR 29615 (Jul. 3, 2025).
\37\ See DOT Order 5610.1D Sec. 9.
\38\ Id. Sec. 9(b).
\39\ Id. Sec. 9(b).
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[[Page 40909]]
List of Subjects
14 CFR Part 117
Airmen, Aviation safety, Reporting and recordkeeping requirements.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Aviation safety, Reporting and
recordkeeping requirements, Safety.
The Proposed Amendment
For the reasons discussed in the preamble, the Federal Aviation
Administration proposes to amend chapter I of title 14, Code of Federal
Regulations as follows:
PART 117--FLIGHT AND DUTY LIMITATIONS AND REST REQUIREMENTS:
FLIGHTCREW MEMBERS
0
1. The authority citation for part 117 is revised to read as follows:
Authority: 49 U.S.C. 106(f), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 46901, 44903-44904,
44912, 46105.
0
2. Add Sec. 117.31 to read as follows:
Sec. 117.31 Preemption of State and local meal and rest break
requirements.
(a) Except as authorized under this part, a certificate holder must
ensure that all flightcrew members are available to perform safety-
related responsibilities during a flight duty period.
(b) This part preempts any State or local law, rule, regulation,
order or standard, or enforcement thereof, covering the subject matter
of flightcrew member duty and rest periods, including meal and rest
breaks.
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
0
3. The authority citation for part 121 continues to read as follows:
Authority: 49 U.S.C. 106(f), 40103, 40113, 40119, 41706, 42301
preceding note added by Pub. L. 112-95, sec. 412, 126 Stat. 89,
44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722,
44729, 44732; 46105; Pub. L. 111-216, 124 Stat. 2348 (49 U.S.C.
44701 note); Pub. L. 112-95, 126 Stat. 62 (49 U.S.C. 44732 note);
Pub. L. 115-254, 132 Stat. 3186 (49 U.S.C. 44701 note).
0
4. Add Sec. 121.468 to read as follows:
Sec. 121.468 Preemption of State and local meal and rest break
requirements.
(a) Except as authorized under this part, a certificate holder must
ensure that all flight attendants are available to perform safety-
related responsibilities and also be able to meet physiological needs
during a duty period.
(b) Section 121.467 of this part preempts any State or local law,
rule, regulation, order or standard, or enforcement thereof, covering
the subject matter of flight attendant duty and rest periods, including
meal and rest breaks.
Issued under authority provided by 49 U.S.C. 106(f) and 44701 in
Washington, DC
Hugh J. Thomas,
Executive Director, Flight Standards Service.
William McKenna,
Chief Counsel.
[FR Doc. 2026-13546 Filed 7-2-26; 8:45 am]
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