135.267 question

[avbug]

August 1, 1989
Mr. Jimmie E. Young

Dear Mr. Young:

This letter is a response to your letter dated March 13, 1989, concerning an
interpretation of Section 135.267 the Federal Aviation Regulations (FAR).
Your hypothetical situation and questions are paraphrased and set forth below.
Each question is followed by our interpretation of pertinent parts of FAR as the
regulation applies to the particular inquiry. Since your letter uses the pronoun
"them" when referring to the crew, the assumption is made that the flights
were conducted using two pilots. Additionally, other than flight time, your letter
does not give specific circumstances concerning how total duty time is accumulated
by the flightcrew and therefore, without specific facts, only general guidance can
be provided.

Your inquiries regard "flight and duty time for pilots on unschedule [sic]
(on-demand)" operations, and your letter refers, in pertinent part, to Section
135.267(c). Section 135.267(c) applies to flight crewmembers who are "regularly
assigned" to "duty periods." The FAA has interpreted the term "regularly
assigned" as meaning that a pilot consistently begins and ends his work period
at the same time each day. Therefore, since nonscheduled, on-demand operators do
not normally "regularly assign" crewmembers to "duty periods,"
Section 135.267(c) would not be applicable to the circumstances described in your
letter.

Hypothetical Situation:

A flight conducted under Part 135 is completed by arriving at the destination
airport, deplaning of all passengers, and unloading of all freight. At the completion
of that flight the crew has been on duty for 14 hours including 9.5 hours of flight
time. After the completion of the flight conducted under Part 135, a second flight
is required to reposition the aircraft from its present location to the certificate
holder's base of operations and this flight will require an additional 5 hours
of duty time including 3 hours of flight time. During the flight to reposition the
aircraft, there will not be any passengers or freight aboard the aircraft. The flight
conducted under Part 135 was preceded by 10 hours of rest and the crew will receive
10 hours of rest after the repositioning flight.

Pertinent Parts of FAR

FAR 135.267 provides in pertinent part:

"(b) ... during any 24 consecutive hours the total time of the assigned
flight when added to any other commercial flying by that flight crewmember may not
exceed

(2) 10 hours for a flightcrew consisting of two pilots...

(d) "Each assignment under paragraph (b) of this section must provide
for at least 10 consecutive hours of rest during the 24-hour period that precedes
the planned completion of the ASSIGNMENT." (emphasis supplied)

(e) When a flight crewmember has exceeded the daily flight time limitations
in this section, because of circumstances beyond the control of the certificate
holder or flight crewmember (such as adverse weather conditions), that flight crewmember
must have a rest period before being assigned or accepting an assignment for flight
time of at least

(1) 11 consecutive hours of rest if the flight time limitation is exceeded by not
more than 30 minutes;

(2) 12 consecutive hours of rest if the flight time limitation is exceeded by more
than 30 minutes but not more than 60 minutes; and

(3) 16 consecutive hours of rest if the flight time limitation is exceeded
by more than 60 minutes."

FAR 91.9 provides:
"No person may operate an aircraft in a careless or reckless manner so
as to endanger the life or property of another." (note edit: this is now 91.13—MM)

Continued...

 

[avbug]

Continued...

Question #1a:

Your question asks whether, after deplaning of all passengers and unloading of
all freight, a flight to reposition the aircraft from the destination airport to
the certificate holder's base of operation can be conducted under Part 91.

Answer to Question #1a:

A ferry flight is defined in pertinent part in the Airman's Information Manual
(AIM) as "A flight for the purpose of: 1. Returning an aircraft to base ..."
Section 135.1 provides in pertinent part that "(b) This part does not apply
to ... (3) Ferry or training flights..." Therefore, ferry flights can be conducted
according to the rules of Part 91 of the FAR.

Question #1b:

Your next question asks for an application of the flight and duty time limitations
of Part 135 to the hypothetical situation.

Answer to Question #1b:

The issue in Question 1b is whether the Part 135 flight or "assignment"
is completed when the passengers are deplaned and the freight is unloaded at the
destination airport. The specific purpose of the flight conducted under Part 135
was to deliver passengers and freight to the destination airport. The ferry flight
to return the aircraft to the base of operations changes the specific purpose to
repositioning the aircraft under Part 91. A flight conducted for the purpose of
repositioning an aircraft under Part 91 after the completion of an assigned flight
conducted under Part 135 cannot be considered a new assignment under Part 135 and,
therefore, would not be subject to the flight time limitations and rest requirements
of Part 135.

The general rule with respect to flight time limitations is that any "other
commercial flying" (such as flights conducted under Part 91) must be counted
against the daily flight time limitations of Part 135 if it precedes the flight
conducted under Part 135. However, if the Part 91 flight occurs after the Part 135
flying, the Part 91 flight is not counted against the daily flight time limitations
of Part 135. If your hypothetical situation was that the Part 91 flight consisting
of 3 hours of flight time was conducted before the Part 135 flight, the crew is
limited to an additional 7 hours of Part 135 flying. However, under your original
hypothetical situation, the Part 91 flight was conducted after the Part 135 flight,
and the 3 hours would not be counted against the 10-hour limitation in Section 135.267(b).
Please take note that the Part 91 flight will be counted against the pilot's
quarterly and yearly flight time limitations.

The general rule regarding rest requirements is that if the Part 91 flying is assigned
by the certificate holder, it may not be conducted during a required rest period.
Since your hypothetical situation involves a Part 91 operation, which is assumed
to be required by the certificate holder, it may not be conducted during the required
rest period and, therefore, may affect the availability of the crew for the next
135 operation.

The preamble to the final rule which amended the flight time limitations of Parts
121 and 135 is contained in the Federal Register (FR) in Volume 50, dated July 18,
1985, beginning at page 29306. The preamble an page 29314 discusses the intent and
rationale of the flight time limitations of the final rule and states in pertinent
part, "The FAA wants to stress that the goal of these revisions is to prevent
fatigue ... It is the responsibility of both the operator and the flight crewmember
to prevent fatigue, not only by following the regulations, but also by acting intelligently
and conscientiously while serving the traveling public. This means taking into consideration
weather conditions, air traffic, health of each flight crewmember, or any other
circumstances (personal problems, etc.) that might affect the flight crewmember's
alertness or judgment on a particular flight."

Since the total flight time of 9.5 hours for the assigned flight conducted under
Part 135 did not exceed 10 hours, the flight complies with Section 135.267(b)(2).
Additionally, since the assigned flight conducted under Part 135 was preceded by
10 hours of rest, the flight complies with Section 135.267(d). However, the total
duty time of 19 hours is a factor which may adversely affect the flightcrew's
alertness or judgment while aloft. Therefore, the certificate holder would be in
violation of Section 91.9 if the certificate holder allows or authorizes a crewmember
to operate an aircraft when the certificate holder knows or should have known of
the pilot's fatigue or lack of proper rest and the pilots fatigue or lack of
rest causes the pilot to operate the aircraft in a careless or reckless manner so
as to endanger the life or property of another. The crewmember would be in violation
of Section 91.9 for operating the aircraft in a careless and reckless manner so
as to endanger the life or property of another.

Question #2:

Your second question also asks for application of the flight and duty time limitations
of Part 135, but the hypothetical situation is modified. The modification is that
the flight time of the Part 135 flight is 5 hours, the ferry flight time is an additional
3 hours, and total duty time is 22 hours.

Answer to Question #2:

The same principles given in the answer to Question #1b would also apply to Question
#2. As in the previous question the total flight time of the Part 135 flight complies
with Section 135.267(b)(2) since the total flight time of 5 hours for the assigned
flight did not exceed 10 hours and it complies with Section 135.267(d) because the
assignment was preceded by 10 hours of rest. However, the longer total duty time
of 22 hours may be more significant in determining the flightcrew's alertness
or judgment while aloft and the crewmember and certificate holder may be in violation
of Section 91.9.

Question #3:

"Also, When [sic] can you exceed the 10 hours of flight time and still be
legal for two pilots.[sic]"

Answer to Question #3:

Subsection (e) of Section 135.267 creates an exception to the 10-hour two-pilot
flight time limitation of Section 135.267(b). This exception is predicated upon
the condition that the flight delay is due to circumstances beyond the control of
the certificate holder or flight crewmember and that the flight crewmember receives
the appropriate additional rest as enumerated in subsections (e)(1) through (e)(3).
The applicability of the expression "circumstances beyond the control of the
operator" connotes a condition that exceeds the reach or understanding of an
operator and inherent in this idea is that the condition or circumstance is not
foreseeable.

We hope this satisfactorily answers your inquiries.

Sincerely,

Donald P. Byrne
Acting Assistant Chief Counsel
Regulations and Enforcement Division

 

[avbug]

October 20, 1981
AGC-220

Alpha Airlines - Flight and duty time limitations

Assistant Chief Counsel, AGC-200

ANE-200

This is in response to your letter concerning Sections 121.505 and 121.517 of
the Federal Aviation Regulations (FAR). You asked several questions each of which
concerned the manner in which the term "other commercial flying" used
in FAR 121.517 applied.

Your questions and our answers are set forth below.

Question 1.

FAR 121.517 speaks to "other commercial flying." Is "other
commercial flying" to be applied in the same manner as under FAR 135, that
is, instructing, agricultural operations, photo flights, etc.? Is the required flight
training and testing under FAR 135 also "other commercial flying"?

Answer.

Generally, "other commercial flying" is any flying for which flight
crewmember receives compensation. However, past FAA and CAA interpretations have
held that receipt of training and check is not considered as other commercial flying
unless that receipt occurs in air transportation. (Emphasis supplied.)

Question 2.

FAR 121.505 speaks to an operator which schedules a pilot to fly more than
8 hours per day. In determining the rest periods, is the "other commercial
flying" referenced above which the operator can schedule, considered in determining
intervening rest periods?

Example A - An operator repositions an aircraft under FAR 91. This takes
5 flight hours. He then conducts 5 flight hours under FAR 135.2. Is the pilot required
to have 10 hours of intervening rest?

Answer.

A repositioning flight is other commercial flying and, as such, must be
considered in relation to subsequent flying in air transportation. In this example,
the pilot is scheduled to fly for more than eight hours during any 24 consecutive
hours and therefore, under FAR 121.505(a), an intervening rest period must be given
at or before the end of eight scheduled hours of flight duty of at least twice the
number of hours flown since the preceding rest period, but not less than eight hours.
If the certificate holder elects to give this rest period at the end of five hours,
then the rest period must be ten hours.

Example B - A pilot is assigned to 2 hours of flight training, followed
by 7 hours on the line. How many hours of intervening rest must the pilot have?

Answer.

On the assumption that receipt of training involved in this example, the
two hours is not considered to be "other commercial flying" and therefore
is not required to be considered. If the two hours consists of giving of flight
training, then the two hours must be considered and the rest period requirement
of FAR 121.505(a) must be met. If the rest period is given upon completion of the
two hours, then the rest period must be at least eight hours in order to comply
with FAR 121.505(a).

Example C - If a pilot conducts 4 hours of flight instruction, totally
detached from the operator, and then is assigned to flight duty for 6 hours, must
the pilot have 8 hours of rest, or is he simply limited to only a total of 8 hours
of flight?

Answer.

Since the giving of flight instruction precedes flying in air transportation the
instruction must be considered in connection with the flying in air transportation.
FAR 121.517 prohibits an airman from doing any commercial flying if that flying
plus his flying under Part 121 will exceed any flight time limitation in Part 121.
Accordingly, under the facts given us, the pilot would be required to comply with
the provisions of FAR 121.505. He may do so by receiving a rest period at or before
the end of eight scheduled hours of flight duty of at least twice the number of
hours flown since the preceding rest period, but not less than eight hours. Alternatively,
the pilot may comply with FAR 121.505 by limiting his giving of instruction to two
hours or his line flying to four hours.

It should be noted that although your questions concerned only Sections 121.505
and 121.517, the other provisions in Subpart S fall within the scope of Section
121.517.

/s/
Edward P. Faberman

 

[CFIse]

A plethora of interpretations, thank you.

In your original post you stated:

"If you've already put in your 14 hours and you have a reposition flight, you can do it if you volunteer...if you want to do it, fine. The company can't ask or assign you to do it. This is a key issue."

This is wrong, and none of the interpretations you posted would support such a conclusion. You seemed to be saying that if a leg was assigned to you it would be Part 135 and subject to 135 rest requirements. This is wrong.

There is no concept or support in the regulations for flying that is "voluntary" or flying that is "assigned".

 

[avbug]

Again, you misunderstand the point.

From midnight to ten in the morning, one gets ten hours of rest. The employer assigns a series of flights, the first of which begins at ten in the morning, the last one one of which ends at midnight that night. Upon arrival at the final destination at midnight, a maintenance issue is found which requires repositioning to a maintenance base.

Upon arrival at the final destination at midnight,the company cannot assign, and the pilot cannot accept, a flight to reposion to that maintenance base.

The crew may elect to do it on their own, but the company can't assign the crew to duty in excess of their rest limits.

The tail end ferry may be done, after a full day of duty is complete, after the crew has reached the limits of their look-back rest (10 hours in the previous 24). However, the company CANNOT assign it.

(d) Each assignment under paragraph (b) of this section must provide for at least 10 consecutive hours of rest during the 24-hour period that precedes the planned completion time of the assignment.

If the flight isn't reasonably planned such that it can be completed within that limitation, the company CANNOT assign it. To assign the flight, regardless of the operating rules, makes it duty for the company, and under Part 135, the company can't do that. The crew can elect to make the flight, but the company cannot require it.

(a) No certificate holder may assign any flight crewmember, and no flight crewmember may accept an assignment...

135.267 includes both scheduled crews and non-scheduled crews. A common misconception is that the use of the word "scheduled" applies to crews flying published schedules, and that's not the case. It applies to crews that fly the same scheduled duty hours on a daily basis. Scheduled crews can exceed the flight limitations in a 24 hour period because their restrictions apply to a 24 hour day, midnight to midnight...and the crew must not step outside of their duty schedules more than once a month...defined by Cheif Legal Counsel legal interpretations.

Scheduled crews do have 14 hour duty days.

Crews that don't operate on a regular schedule are subject to the 10 hour rest requirement under a 24 hour rolling lookback, and can't be assigned duty past their rest limits. They can't be assigned it, can't accept it. To do so would be a violation of the regulation, and regardless of the operating rules under which the flight is conducted, the certificate holder is still bound by the constraints of Part 135 (being a Part 135 certificate holder, you see).

You need to do a little more studying, as you do not understand the regulation.

 

[CFIse]

A Part 91 flight is a Part 91 flight. It can be "assigned" at the end of a Part 135 day and is not affected by any previous Part 135 flying.

Again - you're trying to say that a Part 91 flight, assigned by the company, is subject to Part 135 flight time regulations - and every reference you've provided so far disagrees. Part 91 is Part 91, it can be assigned and it has no reference to Part 135 at that point. That's a very simple point to grasp, why is it so difficult for you?

How do Part 91 flight departments work? They "assign" Part 91 flights all the time, but according to you no flights can be assigned under Part 91, they must all be volunteer - that's ludicrous.

 

[flystoomuch]

Immunity!

So let me see here…

91.13 is totally irrelevant even though it is directly spelled out in every single FAA opinion letter that addresses the subject.

So therefore if you exceed the 14 hour implied duty day (must look back and find at least 10 hours of REST during the previous 24 hours) you can continue flying indefinitely under Part 91 as long as you SWEAR TO GOD you felt fresh as a daisy when you blew that tire and ran over that runway light?

Is that what we are saying CFIse?

Immunity from being Careless and Reckless… now THAT’S really cool!

 

[avbug]

How do Part 91 flight departments work? They "assign" Part 91 flights all the time,...

We're not talking about a Part 91 flight department. We are talking about a Part 135 certificate holder. Try to keep up.

but according to you no flights can be assigned under Part 91, they must all be volunteer - that's ludicrous.

At no time did I say any such thing. Try to comprehend.

A certificate holder cannot assign, and no flight crew cannot accept, a flight assignment that when planned will exceed the flight time limitations spelled out in the regulation. Further, no certificate holder may assign and no flight crew may accept an assignment that no longer falls within the rest limitations of the regulation.

The certificate holder, which is always a 135 certificate holder, cannot assign a flight to a crew beyond their rest period, regardless of the operating rules fo the flight itself. The certificate holder does not magically become a Part 91 certificate holder...If the certificate holder assigns duty, it's alway subject to the regulation under Part 135. Period.

The crew may certainly operate a flight in accordance with the operating rules of Part 91. The crew is always beholden to Part 91. However, you don't seem to comprehend the difference between being assigned a flight by a Part 135 certificate holder, and the operating rules under which the flight is actually conducted.

The only time that the flight and rest regulations no longer apply to the flight crew is when they no longer have any duty to the company; their duty has ended. After duty has ended, the crew has no more duty to act for the company, and the company (read: certificate holder) cannot assign the crew. Period.

A Part 91 flight department, in other words a flight department which lacks an operating certifiate, is not subject to the limitations proided by the certificate they don't have. Do you understand that? One can't be bound by the rules applicable to a certification one doesn't hold. The introduction of your comments regarding a Part 91 flight department serve only to cloud the issue...one you already don't understand.

A Part 91 flight is a Part 91 flight. It can be "assigned" at the end of a Part 135 day and is not affected by any previous Part 135 flying.

Again, it has nothing to do with previous 135 flying. Duty for the company is done. The crew is no longer beholden to the company, to the certificate holder. The flight is no longer being operated at the request of the company. The company is no longer assigning the flight.

Duty is defined as that time when the crew is obligated to act for the company. When duty is over, the crew is no longer obligated to act for the company. The company cannot assign a crew to act, or plan a flight's completion beyond, the rest limits prescribed for the crew.

For regularly scheduled crews, the duty period is 14 hours...and the crew can't be assigned flights beyond that time. Duty to act for the company, o fly by assignment of the company, at the requet of the company, must be done by the end of those 14 hours. The flights and assignments must be reasonaly planned to be completed by the end of the 14 hour duty period.

For non-scheduled crews which do not have a regular duty period, the crew must at all times be able to look back and find 10 consecutive hours of rest in the previous 24 hours. The non-schduled crew is not assigned duty, yet never the less is limited to 14 hours by the 10 hour rest and 24 hour lookback requirement. When duty to act on behalf of the company is over, so are those restrictions. However, there's the catch.

Duty to act for the certificate holder. The crew cannot have any duty to act for the certificate holder beyond their rest limits (14 hour regularly assigned duty period for scheduled crews, and 10 consecutiv hours in the previous 24 for non-scheduled crews). Any flying done after that isn't something the certificate holder can assign...that will be duty, and the certificate holder can't assign duty past the crews duty and rest limits.

(d) Each assignment under paragraph (b) of this section must provide for at least 10 consecutive hours of rest during the 24-hour period that precedes the planned completion time of the assignment.

You'll note that ten hours of rest must be found in the 24 hour period preceeding, or before, the planned end of duty or the company. The company cannot assign a flight beyond that time. There is the limitation on what the company can ask. The company can assign duty up until that point, but not beyond. Even if the company tries to assign duty beyond that time, the flight crew can't accept it.

A certificate holder doesn't merely become a "Part 91 Flight Department" after a crew has exceeded it's rest limitations, with the ability to keep on assigning the crew to duty, keep it working. That's the point of Part 135. It puts the brakes on what a certificate holder can require a crew to do, puts limitations on the operating conditions at certain times, and provides requirements for rest, as well as flight time limitations. This is one such limitation.

A part 135 certificate holder is not a Part 91 flight department. When a Part 135 certificate holder undertakes to assign a crew to duty, it has 14 hours in which to do it. A tail end ferry after that time has run out is legal...but the company can't require the crew to do it...because that's duty. The company gets 14 hours of the crew's life to do that. After that, the company can't assign, and if the company tries the crew can't accept.

 

[340drvr]

Question for Avbug: So, what about a combo operation, let's say a 135 cert. holder, using privately owned/leased aircraft for 135, and, providing Part 91 pilot service/management for those owners.......you're saying that those owner flights assigned as 91 trips must adhere to all 135 flight/duty time restrictions?
(my head is starting to hurt!)
Usually, Avbug, your insight provides excellent clarity, but, I guess I don't get this one.

(The number of times questions on this come up, and, the wide variety of "my POI said" or "our DO says" stories makes me wish for a complete re-write and clarification from the FAA.)

 

[pilotyip]

clarification from the FAA, like stable aviation career, an oxymoran

 

[CFIse]

The certificate holder, which is always a 135 certificate holder, cannot assign a flight to a crew beyond their rest period, regardless of the operating rules fo the flight itself. The certificate holder does not magically become a Part 91 certificate holder...If the certificate holder assigns duty, it's alway subject to the regulation under Part 135. Period.

This is where we fundamentally disagree, and since I can see no basis in the regulation for this and there is no history with respect to the FAA taking this point of view we're never going to agree. There is no such thing as a "Part 91 certificate" and we just disagree that a Part 135 certificate holder must always assign work to be flown under the Part 135 regulations. That's just not supported by any of the FAA interpretations on the subject.

 

[CFIse]

So let me see here…

91.13 is totally irrelevant even though it is directly spelled out in every single FAA opinion letter that addresses the subject.

So therefore if you exceed the 14 hour implied duty day (must look back and find at least 10 hours of REST during the previous 24 hours) you can continue flying indefinitely under Part 91 as long as you SWEAR TO GOD you felt fresh as a daisy when you blew that tire and ran over that runway light?

Is that what we are saying CFIse?

Immunity from being Careless and Reckless… now THAT’S really cool!

You're trying to compare apples and tennis balls. 91.13 ALWAYS applies whether you have been on duty 10 minutes or 48 hours - there's nothing magic about 14 hours that makes actions taken with 13:59 of duty not careless and reckless and actions taken with 14:01 of duty as being careless and reckless.

91.13 is a red hering when discussing flight limitations under Part 135.

 

[avbug]

14 CFR 91.13 is never a red herring, as it's invoked in nearly every FAA action regarding duty time and rest, particularly under Part 135. Further, it's invoked in every legal interpretation on the subject; it's always relevant.

 

[CFIse]

14 CFR 91.13 is never a red herring, as it's invoked in nearly every FAA action regarding duty time and rest, particularly under Part 135. Further, it's invoked in every legal interpretation on the subject; it's always relevant.

Now you're just arguing for arguing's sake. It is not relevant to what is legal under the Part 135 regulations. It's just a caveat regulation "this is legal to do UNLESS you would be careless and reckless in your operation" but it has no direct bearing on what is legal or illegal under Part 135.

If you struggle with that distinction then little wonder you have trouble with the rest of it.

 

[avbug]

A part 135 certificate holder is always beholden to Part 91; it's always relevant. Surely you understand this?