135.267 question

[DFries]

My compamy is going through some internal strife over this question. Maybe someone can shed some light on this..... As a 135 operator, when the paying customer is off the airplane, and we are operating the aircraft part 91 on the way home. does 135.267 time and duty still apply to the flight crew? My understanding is that because we are a commercial operator, the flight crew is required to adhere to 135 time and duty regardless of what part the aircraft is being operated under. Any input on this would be helpful.

 

[Princedietrich]

Most interpretations of this reg would state that even though there is no "payload" on the aircraft and the flight is conducted under 91 rules, the flight itself is still a 135 operation. Therefore, the training and duty/rest rules would still be applied but you don't have to worry about takeoff and approach minimums or any other wacky 135 flight operations rules.

Now, you can throw in a gray area by stating that after dropping off the pax and "deadheading" home for the last leg of the day is a purely 91 reposition, thereby allowing the crew to exceed the duty limits for the purpose of getting home to their own beds.

To further muddy the waters, it can be said that flight operations involving only the owner of the aircraft are completely and totally 91 since there is no common carriage taking place. Some management teams latch onto this interpretation with all talons in order to justify running the crew completely ragged.

Best way to look at it is this: if there's an air carrier certificate hanging on the wall, and you are flying and airplane because someone is paying for you to take them from point A to point B, then you are a 135 operation. If there is an additional empty leg involved in getting to point A and another one in getting home from point B, those can be considered 135 operations flying under 91 rules.

Clear as mud?

 

[pilotyip]

91 tail end ferry is legal under part 91 for a 135 crew. It can not be ordered by the company. A crew can call fatique and not fly the leg if that is their desire. You can also apply 91 rules going empty into a pick up point, but rest duty and flight time on that leg count towards 135 minimums for that 14 hour period.

 

[FlyFlyFly]

The way I have always looked at it is when did you leave rest and when does rest start again.

Try telling the FAA that at 14 hours you dutied off and then "rested" on the plane for three flight hours flying Part 91. I believe there was a NPRM that was going to take all this to task, but it apparently did not make it to print.

The way we handle it is:

1) If the crew wants to do it, they need DO or CP permission.
2) The company cannot order it.
3) Duty cannot be assigned less than 10 hours from the completion of prior duty, whether 91 or 135.

This is a gray area for alot of people that quite often is subjected to the interpretation that is most expeditious. You may want to ask your POI their opinion.

 

[mavrck]

Tail end of the trip is part 91 and duty does NOT apply.

keep in mind though, if you run a full 14 duty day then do a 91 leg home and that leg is 2.5hrs, it is part 91 and legal, however, if metal is bent the feds will come down hard on you/company and slap you with a violation of part 91 under Careless and Reckless Operation.

 

[flipper66]

Fodder for the cannon...

Lets take an example:

Company hands you a flight schedule:

0030-0330 - Point A to B
1:30 wait for client
0500-0800 - Point B to C
00:45 Quick turn
0845-1145 - Point C to D
1:30 Drop client, refuel plane and pilot bellies
1315-1615 - Point D to A

Flight & Duty:
:30 File, wx, fuel
3.0 Reposition for pickup
1:30 Wait for client
3.0 First Leg (to fuel stop)
:45 quick turn
3.0 Second Leg (to destination)
1:30 fuel, get food, etc.
3.0 Reposition back home ("empty" leg)
:30 put the plane away
---------
??:?? hours of duty (either 11:45 or 16:45
depending on how you view it. I think 16:45).
12.0 hours of flight

Legal or not?

I see two issues with this flight:

a) it exceeds 10 hours of flight in a 24 hour period (not due to unexpected delays) so I've busted 135.267(b) because the 3.0 reposition home leg is still commercial flying (lets call it "other commercial flying" - because I'm being paid to do it) regardless your view on its 91/135 status.

b) even though the plane was brought home empty, the customer was billed to move the plane from A-B-C-D-A. Although the passenger was not aboard, the customer paid to move the plane from A all the way back to A. Therefore, I think the entire trip falls under Part 135 as far as flight and duty are concerned.

I do believe that on the first and last reposition legs (without paying passenger aboard) I can fly the airplane under 91 rules as far as when I need an alternate, allowing me to fly a GPS approach (even though it's not in our 135 opspecs), allowing me to "try" an approach when-before reaching the FAF-the weather is reported below minimums, allowing me to takeoff without meeting our Part 135 takeoff minimums, etc...

Even if you don't accept that interpretation, I would argue that in this example I was assigned (by company) a trip from point A to point A (which took 16:15 and 12.0 flight). If I look back 24 hours from 16:15 (and lets say I'd had at least 10 hours of rest when I went on duty at 0000), I've only had 7:45 minutes of consecutive rest in the 24 hour period that preceeds the planned completion time of my assignment - so I now have busted 135.267(d).

OK... someone hit that with a flechette round and tell me where all the holes are =)

 

[avbug]

This subject gets made far too complicated.

If you fly after your duty to act for the company has ended, then the restrictions of Part 135 do not apply. You're always flying under Part 91...even when acting under Part 135...so 91 always applies. In particular 91.13 (carelss and reckless operation...don't fly tired or unsafe).

If the customer has paid for the last leg but isn't aboard and you're not providing point to point transportation for passengers or cargo for hire, then you're not oblgated to make the flight under Part 135.

If the company requires the trip, then it's duty. If you're approaching your rest limits (which, while Part 135 doesn't prescribe duty limits, still equates to your 14 hours of duty), then the company can't assign duty (and you can't accept duty) that puts you beyond your rest limits--10 consecutive hours in the previous 24.

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.

If the client has paid for the entire flight, that doesn't change the way the regulations apply to you. If the client isnt' aboard and you're not carrying his property for hire from point A to point B (the entire reason for having Part 135, incidentally)...then you can do it under Part 91.

Some aspects of Par 135 operation don't change. The maintenance, for example, is always being done under Part 135 (or Part 145, if applicable to your operation)...as well as Part 43. That doesn't get turned off when the airplane operates under Part 91. The differrence is the way the aircraft is operated, and it's the operating rules that are the consideration when moving from A to B at the end of the day after your duty is done.

Now, so far as exceeding 10 hours in a 24 hour period (or eight hours for a single pilot operation)...not an issue if you're not operating under Part 135. Operations under Part 135 operate under the look-back principle. This means that at any given moment during your duty day, you must be able to look back 24 hours to apply the rules...rest, duty, or flight limitations. Once duty is done, once you're no longer operating under 135, those restrictions no longer apply. This means that if you worked for the company for 14 hours and flew for 10...then you can still fly without regard to those times after your duty is done...including a Part 91 reposition of your work airplane.

What you must consider of course is safety, and the regulation that addresses this for a Part 91 ferry is 91.13. In every interpretation on the subject, the FAA invokes and points to this regulation. So yes, while you can legally do that 91 ferry even after you've filled your duty times, even after your 10 hours of rest in the past 24 is no longer in reach, and even though you've already filled your time quota...you need to be able to do it in a way that cannot be construed as careless or reckless. If anything happens during that flight which comes back to a fault of your own, you can count on that regulation being invoked...and don't forget that under the regulation you're guilty until proven innocent (and you won't be).

Part 91 tail-end ferries aren't a grey area at all...it's just an area that too many pilots and managers overcomplicate. Botton line, be safe, do it under your volition and not that of the company, and don't carry paying passengers or cargo during that time.

 

[Publishers]

That "paid for the entire trip" is one place people get tripped up. A customer pays for only what he actually needed and used. Your positioning TO and AFTER have nothing to do with it even though you as a company may have figured those into the cost. This first came up for me 30 years ago when I used to accompany auto parts flights when our crew was running out of time. I would fly the aircraft back with them on board and I was not a commercial pilot. The FAA said those flights were 135 until I got a ruling which said only the leg with the product, or passenger were 135.

 

[AutoBus]

This subject gets made far too complicated.

If you fly after your duty to act for the company has ended, then the restrictions of Part 135 do not apply. You're always flying under Part 91...even when acting under Part 135...so 91 always applies. In particular 91.13 (carelss and reckless operation...don't fly tired or unsafe).

If the customer has paid for the last leg but isn't aboard and you're not providing point to point transportation for passengers or cargo for hire, then you're not oblgated to make the flight under Part 135.

If the company requires the trip, then it's duty. If you're approaching your rest limits (which, while Part 135 doesn't prescribe duty limits, still equates to your 14 hours of duty), then the company can't assign duty (and you can't accept duty) that puts you beyond your rest limits--10 consecutive hours in the previous 24.

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.

If the client has paid for the entire flight, that doesn't change the way the regulations apply to you. If the client isnt' aboard and you're not carrying his property for hire from point A to point B (the entire reason for having Part 135, incidentally)...then you can do it under Part 91.

Some aspects of Par 135 operation don't change. The maintenance, for example, is always being done under Part 135 (or Part 145, if applicable to your operation)...as well as Part 43. That doesn't get turned off when the airplane operates under Part 91. The differrence is the way the aircraft is operated, and it's the operating rules that are the consideration when moving from A to B at the end of the day after your duty is done.

Now, so far as exceeding 10 hours in a 24 hour period (or eight hours for a single pilot operation)...not an issue if you're not operating under Part 135. Operations under Part 135 operate under the look-back principle. This means that at any given moment during your duty day, you must be able to look back 24 hours to apply the rules...rest, duty, or flight limitations. Once duty is done, once you're no longer operating under 135, those restrictions no longer apply. This means that if you worked for the company for 14 hours and flew for 10...then you can still fly without regard to those times after your duty is done...including a Part 91 reposition of your work airplane.

What you must consider of course is safety, and the regulation that addresses this for a Part 91 ferry is 91.13. In every interpretation on the subject, the FAA invokes and points to this regulation. So yes, while you can legally do that 91 ferry even after you've filled your duty times, even after your 10 hours of rest in the past 24 is no longer in reach, and even though you've already filled your time quota...you need to be able to do it in a way that cannot be construed as careless or reckless. If anything happens during that flight which comes back to a fault of your own, you can count on that regulation being invoked...and don't forget that under the regulation you're guilty until proven innocent (and you won't be).

Part 91 tail-end ferries aren't a grey area at all...it's just an area that too many pilots and managers overcomplicate. Botton line, be safe, do it under your volition and not that of the company, and don't carry paying passengers or cargo during that time.

Pretty much sums it all up

 

[CFIse]

Clear as mud?

What you wrote was very clear - all wrong, but very clear.

 

[CFIse]

If the company requires the trip, then it's duty. If you're approaching your rest limits (which, while Part 135 doesn't prescribe duty limits, still equates to your 14 hours of duty), then the company can't assign duty (and you can't accept duty) that puts you beyond your rest limits--10 consecutive hours in the previous 24.

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.

The rest of the post was good, but this is not correct.

Duty and the duty day don't exist. The issue is when accepting a Part 135 leg can you look back over the appropriate periods and find the required rest. Anytime you are working for the company, flying, cleaning toilets, doing paperwork, training, cleaning the aircraft, is NOT REST, and you can call that duty if you want, but you'd be wrong, but the only thing we know is it is NOT REST and so it cannot be considered when trying to find lookback rest.

So the whole concept of "it's duty" and "you can't exceed some mythical 14 hour limit Part 91" is not correct. You cannot be scheduled for Part 135 flying that exceeds 14 hours, but we've agreed this is Part 91 flying. No lookback to find required rest is required, you're always good to go.

You work for the company, the company can tell you what to do regardless of Part 135 flying, Part 91 flying, toilet cleaning, paperwork etc. The concept that you cannot be assigned Part 91 flying is bogus and has no basis in flight regulations. Any basis at all on what you can be told to do would be labor laws, and labor laws know nothing about rest and duty.

You can work Part 135 flights, you can extend the 14 hour "duty day" as long as needed for unexpected delays and you can still be assigned a Part 91 flight leg at the end of it all. Under the regulations you can decline that leg as fatigued, just as you can decline ANY leg as fatigued and the FAA expects professional pilots to do just that. How that works out between you and the company employment-wise is a whole different issue and the FAA could care less. This is flight and duty time regulations, the FAA doesn't regulate labor and as a courtesy the Dept. of Labor doesn't regulate flight time.

There are a number of FAA opinions on Part 91 legs, and they all pretty much say the same thing. Part 91, at the end of Part 135/121 flying can be done for as long you want. It's not relevant to duty periods or rest periods or anything. Going forward it IS commercial flying and has to be counted on any subsequent lookbacks and it is NOT REST and cannot be counted as such.

 

[avbug]

The rest of the post was good, but this is not correct.

You need some reading comprehension. You quoted me stating that 135 doesn't prescribe duty regulations but instead rest regulations, then went on to argue that very point.

In fact, 135 does prescribe a duty day, but only for regularly scheduled crews.

At NO time did I ever say anything about not exceeding a 14 hour day, duty or otherwise. It's about lookback and rest...which is eactly what you quoted me as saying. However, that does NOT apply once duty for the company has ended. Rest is no longer an issue when one isn't working for the company, and if one is not under obligation to act for the company, such as a tail-end ferry, one does NOT need to look back in the previous 24 hours and find 10 consecutive hours of rest...because one is no longer operating under Part 135.

The concept that you cannot be assigned Part 91 flying is bogus and has no basis in flight regulations. Any basis at all on what you can be told to do would be labor laws, and labor laws know nothing about rest and duty.

Clearly you don't understand the regulation very well at all.

In order to fly at the end of the duty day, when one can no longer meet the 10 hour rest requirement, the employer cannot assign the flight; that would be duty for the company, and the employer can't assign you to duty in excess of your rest limits. In order to operate he flight under Part 91 without any limitations imposed under Part 135, the employer cannot ask the employee to make the flight. The employer cannot assign, the employee cannot accept. The employee must voluntarily make the flight.

You need to do a little more learning on the subject because you haven't a clue what you're talking about.

You can work Part 135 flights, you can extend the 14 hour "duty day" as long as needed for unexpected delays and you can still be assigned a Part 91 flight leg at the end of it all.

No. Again, you really need to get educated a little more on this subject.

There are a number of FAA opinions on Part 91 legs, and they all pretty much say the same thing. Part 91, at the end of Part 135/121 flying can be done for as long you want.

Ah, no. If you've read any of the legal interpretation, you haven't comprhended them. None of them, not one, suggest in any way that you can fly "as long as you want." Every one does invoke and specifically point to 14 CFR 91.13, however...which certainly does not mean you can fly "as long as you want."

 

[avbug]

January 16, 1992
(no name given)

This is in response to your letter dated July 22, 1991, requesting an interpretation
of Federal Aviation Regulation (FAR) Sec. 135.267(d). Your letter was forwarded
to us by Federal Aviation Administration (FAA) officials in your region. We apologize
for the delay in responding to you.

Your letter first states the following scenario:

Pilot reports to work at 0600. Aircraft departs at 0700 with passengers on a two
hour flight to another city. The passengers have scheduled the return departure
time for 1700 but they do not show up for the return flight until 1830. Since it
is over a two hour flight back to the departure city the pilot will go over the
maximum 14 hours duty time. If the passengers had been on time the aircraft would
have been back at the departure city with a full hour to spare before the 14 hour
maximum duty time.

Question

1. What is the pilot's responsibility when the passengers show up late and he
knows that he can not get back to the departure point without exceeding the 14 hour
duty day?

2. Assuming my understanding of FAR Sec. 135.267(d) is correct and that we relied
on the scheduled return time of the passengers and my pilot flies back to the departure
point and goes over the 14 hour duty day, what is our responsibility pertaining
to rest that must be given to the pilot before he can fly again?

Answer

Paragraph (d) of FAR Sec. 135.267 provides as follows:

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.

Section 135.267(d) does not contain an explicit limitation on duty time. This regulation
provides limits on flight time rather than duty time. Thus, paragraph (d) of Sec.
135.267 cannot be construed as a hard and fast rule that 14 hours of duty time must
never, under any circumstances, be exceeded.

The key to the applicability of Sec. 135.267(d) is in the final phrase "planned
completion time of the assignment" (emphasis added). If the original planning
is upset for reasons beyond the control of the crew and operator, the flight may
nevertheless be conducted, though crew duty time may extend beyond the planned completion.
This assumes, of course, that the original planning was realistic.

As to what circumstances are beyond the control of the operator and crew, the FAA
has taken the position that delays caused by late passenger arrivals, maintenance
difficulties, and adverse weather constitute circumstances beyond the certificate
holder's control.

We would like to point out, however, that a flight crew may not depart if the crewmembers'
state of fatigue would endanger others. Section 91.13(a) provides as follows: "No
person may operate an aircraft in a careless or reckless manner so as to endanger
the life or property of another." Both the crew and the certificate holder
would be in violation of Sec. 91.13(a) if crewmembers fly when their lack of rest
would endanger others. Furthermore, the flight crew need not actually endanger others
for a violation of Sec. 91.13(a) to occur - a violation exists if the crew's
fatigue subjects life and property to potential endangerment.

Thus, in your first scenario, the pilot may fly the late returning passengers back
to the original departure point without violating FAR Sec. 135.267(d). Upon completion
of the flight, the pilot may not accept his next assignment unless he is first given
10 hours rest. As indicated above FAR Sec. 135.267(d) requires that the pilot be
given 10 hours of rest during the 24 hour period preceding the planned completion
of an assignment. The certificate holder, Commonwealth Jet Service in this case,
must ensure that pilots receive their required rest period prior to scheduling their
next flight.

Your second scenario states:

Pilot reports to work at 0600 and takes off at 0700, empty, to another city to pickup
passengers at 0800 and fly a two hour flight to a third city. The passengers inform
the pilot that they will not be ready to depart until 1730. The pilot determines
that he can depart at 1730 and get to the airport that he picked up the passengers
within the 14 hour duty day but will go over if he continues on for the extra hour
to get him back to his home base.

Question

Since the FAA has previously determined that empty legs are considered to be conducted
under FAR Part 91, does this pertain to duty time? Is the pilot allowed to fly back
to his home base and exceed the 14 hour duty day since he has no passengers or freight
on board?

Answer

Repositioning flights are governed by Part 91. The rule, however, applies to flight
time limitations not duty time limitations. The rule with respect to flight time
limitations is that any "other commercial flying" (e.g., flights conducted
under Part 91) must be counted towards the daily flight time limitations of Part
135 if such flying precedes the flight conducted under Part 135. Such would be the
case of the first leg of flight in your second scenario. In contrast, if the Part
91 flight occurs after the Part 135 flying, as would be the case in the last leg
of your second scenario, the Part 91 flight is not counted against the daily flight
time limitations of Part 135.

As to duty time limitations, once again, if the original planning is upset for reasons
beyond the control of the crew and operator, such as in your second scenario, the
flight may nevertheless be conducted. As we pointed out there is no 14 hour duty
time limitation. This assumes that the original planning was realistic and the crewmember's
lack of rest would not endanger others.

This interpretation was prepared by Francis C. Heil, Attorney, Operations Law Branch;
Richard C. Beitel, Manager. I hope this information satisfies your request.

Sincerely,

Donald P. Byrne
Assistant Chief Counsel
Regulations and Enforcement Division

 

[avbug]

Mr. Jeff J. Jacober
Chief Pilot
Private Jet Services
PO Box 6088
Allentown, PA 18001

Dear Mr. Jacober:

Thank you for your letter of April 10, 1991, requesting an interpretation of the
flight time limitations and rest requirements found in Part 135 of the Federal Aviation
Regulations (FAR).

Issue #1

In your letter you state as follows:

135.263(d) addresses a flight that goes beyond flight time limitations due to
circumstances beyond the control of operators, but what about beyond the duty period
limitations? For example, a flight crew takes a customer/passenger to a destination
airport to conduct business. The flight leaves early in the morning, and one hour
later they arrive. The crew gets a day room at a local hotel, as the businessman
expects to be gone at least eight hours. When it comes time to leave, the businessman
is held up in traffic and is very late getting back to the airport. The trip home
will also be about an hour, but the crew is faced with the dilemma of exceeding
a 14 hour duty day. This crew hasn't worked very hard, but can they complete
this trip?

Answer

Section 135.267 does not contain an explicit limitation on duty time. However, section
135.267(d) does contain a safeguard against excessive duty time in the sense that
if duty time beyond 14 hours infringes upon the 10 hours of rest required during
the 24 hour period preceding the planned completion of the next assignment, then
the next assignment would not be in compliance with the regulation.

In the situation you describe, the crew would not violate the flight time limitations
contained in section 135.267(b) by completing the trip. However, before the certificate
holder could assign or the flight crewmember could accept a new assignment, the
new assignment would have to provide for at least 10 consecutive hours of rest during
the 24 hour period that precedes the planned completion time of such assignment.

Issue #2

Your letter also states as follows:

The company that I work for was certified last May (1990). Until recently, we
were given the impression that it was OK to ferry an aircraft Part 91 back to home
or another airport as long as the flight crew received adequate rest prior to the
next Part 135 trip. We are now being told that ten hours of flight time is the limit
no matter what. We believed that the crew could exceed the ten hours, as long as
they received the rest described in 135.267(e), and the flight time in excess of
ten hours was conducted under Part 91.

Answer

The rule with respect to flight time limitations is that any "other commercial
flying" (e.g., flights conducted under Part 91, such as ferry flights) must
be counted against the daily flight time limitations of Part 135 if such flying
precedes the flight conducted under Part 135. In contrast, 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. Note, however, that the Part 91 flight
time will be counted against the pilot's monthly, quarterly, and yearly flight
time limitations.

Thus, you are correct in your conclusion that it is permissible for a flight crew
to ferry an aircraft back to home or to another airport (Part 91 flying) after Part
135 flying, even if the ferrying would put the flight crew in excess of the 10 hour
daily flight time limitation of Part 135. However, the flight crew must receive
the rest required by the regulation prior to the next Part 135 trip.

Issue #3

You say that you have recently been told that any flying done in the aircraft, whether
revenue (Part 135) or non-revenue (Part 91) is all commercial flying. You say that
previously this was not the case and that this is written in your operations manual.

You also say that you have been told that you, as an employee of Private Jet Services,
cannot use the company aircraft to your advantage without such use being considered
commercial flying. The example you give is as follows: if you use the airplane to
go visit a friend in another city prior to taking a trip out of that same city,
that your personal time between your visit and the scheduled departure would be
considered commercial duty and flight time.

Answer

"Other commercial flying" means any non-military flying as a required
crewmember, other than in air transportation, for which the crewmember is paid for
his or her services. Presumably, you are not paid for your flight time in going
to see a friend. Therefore, it would not constitute "other commercial flying"
within the meaning of the flight time limitations and rest requirements found in
the FAR.

In regard to your operations manual, we must advise you that we do not interpret
or give legal approval to air carrier operations manuals. This policy is based on
the following reasons: first, factual situations are not presented in such manuals;
and second, attempting to "approve" such manuals would be far too onerous
a task - as you know, there are thousands of Part 121 and Part 135 air carrier manuals.
However, an operations manual may not be inconsistent with FAR provisions.

Issue #4

Concerning the next issue, you state as follows:

At the sole discretion of the flight crew, for an early morning flight out of
some of the local airports, we had been previously advised by the FAA that the crew
could reposition early in the morning instead of the night before. That the reposition
time wasn't considered part of the duty period. The reason being that the crew
had the option of leaving the night before and getting ten hours rest in a hotel,
or staying home and getting better rest with less problems. The owner of the operations
only concern was that the aircraft and crew was in position for the flight.

Answer

Repositioning flights are governed by Part 91. As we have discussed above, the rule
with respect to flight time limitations is that any "other commercial flying"
(e.g., flights conducted under Part 91) must be counted towards the daily flight
time limitations of Part 135 if such flying precedes the flight conducted under
Part 135. In contrast, 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 you were advised previously that the crew could reposition early in the morning
without it counting as part of the duty period, you were advised incorrectly. Since
the repositioning precedes the Part 135 flying, the time spent repositioning the
aircraft must be counted against the daily flight time limitations of Part 135.

Issue #5

Your final question concerns section 135.269's requirement for adequate pilot
sleeping facilities on board the aircraft. You ask what type of aircraft the Federal
Aviation Administration (FAA) was thinking about when they addressed this rule to
operators as described in 135.1. You also ask whether reclining seats would suffice.

Answer

The FAA has interpreted "adequate sleeping quarters" as meaning a bunk
or berth; a reclining passenger seat does not suffice. No particular type of airplane
was part of the premise for section 135.269.

This interpretation was drafted by Sheila Skojec, an attorney in the Operations
Law Branch; Richard C. Beitel, Manager. It was then coordinated with the Air Transportation
Division of the Flight Standards Service at FAA Headquarters. We hope that it has
satisfactorily answered your inquiry.

Sincerely,

Donald P. Byrne
Assistant Chief Counsel
Regulations and Enforcement Division

 

[avbug]

December 7, 1990
Mr. Bernard Flashman

Dear Mr. Flashman:
Thank you for your letter of March 24, 1989, concerning flight and duty time.
Your letter was originally sent to the Flight Standards District Office located
in Teterboro, NJ, and forwarded to the Office of the Chief Counsel located here
in Washington, D.C. by the Assistant Chief Counsel for the FAA Eastern Region located
in Jamaica, KY. Your hypothetical situation is set forth below and is followed by
our interpretation of the Federal Aviation Regulations (FAR) as the regulations
apply to your question.
Situation:
"The specific issue at hand concerns the regulatory status of `deadhead
legs' before and after `charter' legs. On many occasions, we relocate our
aircraft, a LR-35A, from its home base at the Teterboro, NJ airport to other NYC
area airports in order to pick up and/or drop off passengers at the other airport.
As an example, take a charter trip scheduled to depart HPN at 0800 with 2 passengers
going to ELP, waiting 2 hours, then returning to HPN. Assume that the trip from
TEB to HPN or return takes 0.5 hours, and that the trip from HPN to ELP or return
takes 4.7 hours, `flight time', as defined by FAR 1.1 (`Block-to-Block'
time). The pilots report for duty at TEB at 0600 and depart 0700, arriving at HPN
at 0730. At 0800 they depart for ELP and arrive at 1240. They depart ELP at 1500,
and arrive at HPN at 1940.

Up to this point the pilots have been on duty for 13.7 hours (from 0600 to 1940),
and have `blocked' 9.9 hours of flight time (0.5 + 4.7 + 4.7). Included in this
total, at this point, is the `deadhead' time in repositioning the aircraft from
TEB to HPN, since, without a doubt, this is included as `any other commercial flying'
under FAR 135.267. The issue at hand concerns the remaining portion of the trip:
the final relocation of the aircraft, with no passengers or freight on board, from
HPN to TEB. Here again, there is no question that this leg, too, will fall under
the `any other commercial flying, provision of FAR 135.267, insofar as required
`rest' or `flight time' restrictions may apply to SUBSEQUENT flights of
the pilots concerned and to their monthly/quarterly/yearly totals." (emphasis
added)

Pertinent parts of the Federal Aviation Regulations:

FAR 135.267 provides in pertinent part:

"(b) [D]uring any 24 consecutive hours the total flight 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 qualified under
this Part ...

(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 added)

Question:

"Is this flight from HPN to TEB in itself regulated by the provisions of
FAR 135?"

Answer:

The term deadhead is used in your hypothetical situation. Deadhead has been defined
as time spent in transportation, not local in character, that an air carrier requires
of a flight crewmember and provides to transport the crewmember to an airport at
which he is to serve on a flight as a crewmember, or from an airport at which he
was relieved from duty to return to his home station. However, a ferry flight is
defined in the Airman's Information Manual as "A flight for the purpose
of: (1) Returning the AIRCRAFT to base ...." (emphasis added) Since your question
concerns the repositioning of the aircraft to its base, ferry flight would be the
appropriate terminology.

The issue in your question is whether the Part 135 flight or "assignment"
is completed when the passengers are deplaned at HPN at 1940. The specific purpose
of the flight conducted under Part 135 was to take the passengers from HPN to ELP
and return them to HPN. After the passengers are deplaned at HPN at 1940, the purpose
of the next flight in your hypothetical situation is to return the aircraft to its
base of operations at TEB. Therefore, the specific purpose changes to a ferry flight
to reposition the aircraft which is regulated by 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. 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. However, you are correct when you state that the Part 91 flight time will be
counted against the pilot's monthly, quarterly, and yearly flight time limitations.

Additionally, you are also correct in stating that the Part 91 flight may affect
the availability of the crew for a subsequent Part 135 flight because the general
rule is that a Part 91 flight may not be conducted during a required rest period
if that flight is assigned by the certificate holder. Since your hypothetical situation
involves a ferry flight under Part 91 which is required by the certificate holder,
the flight may not be conducted during the required rest period and, therefore,
may affect the availability of the crew for the next Part 135 operation.

We hope this satisfactorily answers your question.

Sincerely,

/s/

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

 

[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.