135 Days Off

[stratman560]

I am sure everyone on this forum is familiar with the 135.267 (f) which states that the certificate holder must allow for 13-24 hour periods of rest each quarter. I believe sometime back I was told that these rest periods cannot be retro-active and that they must be determined ahead of time. I'm sure this will boil over into a massive debate but does anybody have any cold hard facts on this? Thanks.

 

[CaptSeth]

I believe "ahead of time" would be determined by notification; as long as you are aware before the designated rest period starts that it is one of your required rests, that would satisfy the reg.

This brings to mind a recent job offer I got, for a 135 operator, that offered 6 hard and 2 soft days a month - but that was basically a ruse, they wanted you whenever they needed you. I don't know if that's standard in this part of the industry, but if you compare to XOjet or NJA, or some of the better on-demand operations, I have some issues about that sort of policy. How do you have a life, not to mention how do you satisfy legal rest requirements?

 

[atpcliff]

Hi!

According to the legal counsel of the FAA, as well as court cases, for rest to occurr, you must know ahead of time, there can't be any "duties" associated with it (pager, answer phone, etc.), and your airline is allowed to call you ONCE during your rest without breaking it. You are also allowed to unplug/shutoff your phone and not answer 'til out of rest.

Many FSDOs, Regions and POIs may tell you that it is OK to do a "lookback", and call it rest when you were on call.

The Regional SWA guy told SWA it was OK to not do the required MX. Where is that guy now?

The FSDO/Region/POI's opinion doesn't count if something goes wrong and/or FAA HQ decides to check out you and your airline. Everyone will be hammered if they don't follow the rules.

cliff
GRB

 

[avbug]

The purpose of prospective rest is to prevent an employer from looking back over the past day and saying, simply because no flying came up, "That was your day off."

The one phone call rule is somewhat misunderstood. What the chief legal counsel said was that one phone call received from the company during the rest period does not interrupt the rest period, nor require resetting the rest period. This should not be construed to mean that only one call is allowed...which is the way many have taken it.

At no time did the Chief Counsel stipulate that only one call is allowed.

 

[340drvr]

That's funny, you said "135" and "Days Off" in the same sentence!
Seriously.....like the other replies above said, a day off, to satisfy the 24 hr. period you asked about, must be announced ahead of time, as in "starting at 5 pm, you have 24 hrs off." But, that does not imply whatsoever that an employer must put all 13 of those required 24 hr. periods on the schedule ahead of time. Conceivably, you could be assigned work (duty and flying) for the first ~77 days of a quarter, at which point you'd have a mandatory "time out" of the next 13 days. (Never happens that way, and, would certainly $uck to have that schedule, but, it would satisfy the legality.)

 

[PilotChapin]

I am sure everyone on this forum is familiar with the 135.267 (f) which states that the certificate holder must allow for 13-24 hour periods of rest each quarter. I believe sometime back I was told that these rest periods cannot be retro-active and that they must be determined ahead of time. I'm sure this will boil over into a massive debate but does anybody have any cold hard facts on this? Thanks.

If you actually find a charter company that gives it's pilots time off please let us know.

 

[gulfstream2345]

Rest time

As one of the inspectors that testified at the SWA hearing, I can tell you that the only way a legal interpretation works for you is at the NTSB hearing.

I worked for a 135 operation that said, "If you haven't heard from us by 7pm then you are off until 7am and if you haven't heard from us by 7pm on Friday, you are off until 7am on Monday."

When I asked what happens if you call me at 8pm and I tell you I can't come in? The answer was I would be fired. Duh!!!

As a former inspector, if the company doesn't give you 13 days, scheduled off, in advance, in a quarter, the company will be violated.

Good riddance to Mr. Stuckey.

 

[pilotyip]

Beer Rule

To determine if had a 24-hour duty free period you have to apply the beer rule. If you were not allowed to drink beer for 16 hours, it was not a duty free 24-hour period. Management has to say you have the next 24 hours off; they can give you this call at any time. They can say take another 14 hours after you are rested and call it 24 hours. Vacation or sick days also fulfill the requirement of a 24 hour duty free period. A company could give you 26 days of vacation running from 3-20-08 to 4-13-08 and then work you with no days off from 01-01-08 to 09-16-08. You can elect to look back, but the company can not assing a look back. BTW USA Jet DA-20 pilots 10 hard days off every 28 days 135 ops, because we care.

 

[bunman45]

Nobody is going to get violated. If that was true, every part 135 operator would already be violated. If you want a real scheduled job, you just need to go 121 or fractional.

 

[Corp Pilot]

The nature of the “daily” rest period is the same, regardless of the applicable subpart. Rest must be 1) continuous, 2) determined prospectively (i.e., known in advance), and 3) free from all restraint by the certificate holder, including freedom from work or freedom from present responsibility for work should the occasion arise.

Read entire FAA legal interpretation

December 19, 2005
Mr. Michael T. Brazill
Director of Operations
Summit Jet L.L.C.
7144 Republic Airport
Farmingdale, N.Y. 11735
Dear Mr. Brazill:
This letter is in response to your March 12, 2004 request for an interpretation of 14 C.F.R. section 135.267(f) (Subpart F).
Scenario Presented:
1. Summit Jet employs a crew of 2 pilots designated to operate a specific aircraft in it’s Part 135 feet. This crew has been selected by the owner of this aircraft.
2. The crew has been informed by Summit Jet that their expected response time to any potential duty assignment would be “as available” but no longer than 24 hours from time of notification.
3. The crew is notified by means of a 2-way text messaging device that may be turned to “silent” mode during periods of rest. [The] crew is only required to respond to messages if directed to do so in the message. Response to messages can be at [the] crewmember [’s] discretion.
4. The crew has been informed by Summit Jet to make monthly requests for specific “hard time” off as necessary. There has been no restriction on the number of “hard time” off requests made nor any requirement for the crew to request any “hard time” off. Summit Jet would provide replacement crews in the event the crew was unavailable.
5. The crew has averaged 11 days per month as “not scheduled” during a given calendar quarter. The definition of a day “not scheduled” is a day (a period of 24 hours or more) where there are no flights, rest overnights or duty of any kind required by Summit Jet.
Question:
Has the requirement to provide each crewmember at least 13 rest periods of at least 24 consecutive each in each calendar quarter as defined in FAR 135.267(f)1 been satisfied in the above scenario?
Answer:
We point out some unclear language in the above scenario as well as our understanding of what some of Summit Jet’s language means:
Sentence 1 of Paragraph 3 appears to suggest that a pilot’s rest period is not interrupted because of the pilot’s ability to turn the 2-way text messaging device to “silent” mode during periods of rest. Yet, at the same time, it states in sentence 2 that the crew is “required to respond to messages if directed to do so in the message.” We do not see how, in practice, a pilot may ever exercise the option turn the device to “silent” when any random incoming message could require a response. In addition, if as stated in sentence 3, responses may be at the “crewmember[’s] discretion,” this negates the previous statement that a message may require a crewmember to respond. Thus, it is unclear if a pilot may, in practice, use the “silent” mode to avoid interruptions of rest and if he is required or not required to respond to any message.
Paragraph 4 discusses monthly requests for specific “hard time” off. While the requester does not specify what “hard time” means, we assume that it is not a reference to the 24 hour rest periods in section 135.267(f). Rather, it may be a reference to personal time to be used for vacation or other reason.
Paragraph 5 states that the crew has “averaged 11 days per month as “not scheduled” during a given calendar quarter,” and defines the “not scheduled” day as a period of 24 or more hours in which there are no flights, rest overnights or duty of any kind required by Summit Jet. We cannot tell from this average number what actual number of “not scheduled” days each of Summit Jet’s pilots, subject to the requirement in section 135.267(e), receives. We also understand that Summit Jet considers the “not scheduled” days as 24 consecutive hour rest periods.
The nature of the “daily” rest period is the same, regardless of the applicable subpart. Rest must be 1) continuous, 2) determined prospectively (i.e., known in advance), and 3) free from all restraint by the certificate holder, including freedom from work or freedom from present responsibility for work should the occasion arise. See e.g., April 29, 2005 Letter to Candace K. Kolander, from Rebecca B. MacPherson, Assistant Chief Counsel, Regulations Division [2005-5] (copy enclosed); and Oct. 29, 2002 Letter to James W. Johnson, from Donald P. Byrne, Assistant Chief Counsel, Regulations Division [2003-6] (copy enclosed). In addition, the nature of the 24-hour rest period is the same as the nature of the “daily” rest period.
Under the facts provided, it is unclear to us if a pilot may ever put the messaging device in “silent” mode to avoid interruption of rest, as it is unclear if he is required or not required to respond to any message. If under Summit Jet’s practice the pilot is obligated to respond to a message during the 24-hour rest period (or “not scheduled” day), thus pilots cannot use the “silent” feature in that period, that so-called “rest period” is neither uninterrupted nor continuous. It is also not free from all restraint. Therefore, it would not satisfy the nature of rest test.
Finally, the regulation requires the certificate holder to “provide each flight crewmember at least 13 rest periods of at least 24 consecutive hours.” (Emphasis added.) Summit Jet has stated high average numbers of “not scheduled” days, but we cannot tell if there are pilots for whom the average number disguises receipt of less than the regulatory minimum of 13 days. The relevant showing that Summit Jet must make under the regulation is that each flight crewmember actually receives at least 13 rest periods in every quarter. If Summit Jet cannot do so, it has not satisfied the regulation’s plain requirement.
This letter was prepared by Joseph A. Conte, Manager, Operations Law Branch and Constance M. Subadan, Attorney, Operations Law Branch. It was coordinated with the Flight Standards Service at FAA Headquarters.
Sincerely,
Rebecca B. MacPherson
Assistant Chief Counsel
Regulations Division
Enclosures
The FAA has not published this interpretation in the Federal Register for pre-issuance comments because it does not present a new issue. This is consistent with the Dec. 16, 2005 Federal Register Notice of Reinstatement of 1980 Public Comment Procedures for Requests for Interpretation of the Flight Time, Rest and Duty Period Regulations (70 Fed. Reg. 74863). That Notice states that Federal Register public comment procedures would be subject to three limitations: 1) pre-issuance comments would be solicited for requests presenting new issues, i.e., not for repetitive type questions; 2) even for new issues, the Agency may issue an interpretation immediately, subject to post-issuance comments; and 3) the Agency reserves the right to modify or discontinue the use of the procedures, at the Office of the Chief Counsel’s election.

 

[johnny taliban]

Documentation

The biggest problem I see with this regulation is the lack of REQUIRED DOCUMENTATION. All the bottom feeders I worked for never had to document a pilot received his/her days off. Same goes for the ten hour rest requirement. If the feds where serious about this regulation they would REQUIRE DOCUMENTATION. None of the Form Ones I ever saw showed anything but duty on/duty off times. Never was there anything that documented when rest began/ended. I ain't no rocket surgeon but even I know that REQUIRED DOCUMENTATION would make it a lot harder for these bottom feeders to get away with this abuse.

Johnny

 

[b350capt]

If you actually find a charter company that gives it's pilots time off please let us know.

We offer 6 on 3 off schedules. All days off are hard days off, except during holiday peak travel days (get extra money for flying those). During non-peak travel days, crews get approx 27-29 days off per quarter. Pilots this quarter bid April - June will have 1 peak travel day period covering 5 days (so maximum 3 fewer day off). We don't pay very well, but try to take care of our people. However our senior Captain (1) and First Officer (1) lines are 4 on 3 off

Real quote should read - if you can find a charter company that gives its pilots time off and pays well...let you know

 

[avbug]

If you actually find a charter company that gives it's pilots time off please let us know.

I've certainly worked for a few. Some were scheduled far in advance, others were arranged a day before, but the common denominator has always been at scheduled 24 hours off, prospectively. I've worked at 135 operators that gave one week on, one off, and others two weeks on, two off.

The biggest problem I see with this regulation is the lack of REQUIRED DOCUMENTATION. All the bottom feeders I worked for never had to document a pilot received his/her days off. Same goes for the ten hour rest requirement. If the feds where serious about this regulation they would REQUIRE DOCUMENTATION. None of the Form Ones I ever saw showed anything but duty on/duty off times. Never was there anything that documented when rest began/ended. I ain't no rocket surgeon but even I know that REQUIRED DOCUMENTATION would make it a lot harder for these bottom feeders to get away with this abuse.

Every 135 operator for whom I've worked (seven different operators, I believe) has kept close track of duty and rest times, including days off. Pilots who cannot prove they have operated in accordance with the regulation are subject to violation. The operator is required by regulation to keep these records, and must do so for a period of 12 months.

§ 135.63 Recordkeeping requirements.

(a) Each certificate holder shall keep at its principal business office or at other places approved by the Administrator, and shall make available for inspection by the Administrator the following—

(4) An individual record of each pilot used in operations under this part, including the following information:

(vii) The pilot's flight time in sufficient detail to determine compliance with the flight time limitations of this part.

(b) Each certificate holder must keep each record required by paragraph (a)(3) of this section for at least 6 months, and must keep each record required by paragraphs (a)(4) and (a)(5) of this section for at least 12 months.

The regulation specifically calls for records of flight times specified under Part 135. The specific regulation title for the flight time limitations, however, cites rest times in concert with flight time (eg, " § 135.263 Flight time limitations and rest requirements: All certificate holders."). The two go hand in hand. Keeping track of one by necessity means keeping track of the other.

If your employers have not been doing this, they've been out of compliance with the regulation, and without doubt, their own operations manuals. I've yet to meet a POI that doesn't require this documentation.

The manual required under Part 135, generally termed the General Operations Manual (formerly the ATCO manual) will spell out the specific forms prescribed by the company and approved by the FAA. The Manual itself is an approved document, to which those operating under the Certificate are held accountable.

In all cases, I always ensured that a full accounting of my time included a record not only of flight time, but rest time, and off time. When the FAA attempted enforcement action against me for an alleged violation of rest times, I was able to show with those records that I had not committed a violation. The FAA was particularly interested in my detailed records, especially when the company tried to present with a record that differed from mine. The company was then held accountable.

Remember that when dealing with the regulation, you're guilty until proven innocent. When the subjet of enforcement action, you may appeal the enforcement action, but that's your first chance to fight it. After you've already been violated. Protect yourself with very detailed records. At all times be able to show that you had ten hours of rest prior to showing up for duty, at all times be able to show your cumulative flight times, days off, rest periods, etc.

Failure to do so is at your peril.

 

[atpcliff]

Hi!

I fly for a Charter Company.

-9 pilots get 12 hard days off every 28.
Falcon 20 pilots get 10 (or 12, with less pay) hard days off every 28.

If you're on the road, and you day off is coming up, you have 3 choices. Take your days off, and get airlined (or bizjetted) home, take extra pay for your days off, or bank you days off to use later.

If the company doesn't need you, they will fly you home. If they need you, you can have your pick of the 3 options above.

cliff
YIP

 

[johnny taliban]

documentation

Av,

you stated that documentation of flight time and REST TIME go hand in hand."You can't have one without the other".

All three of my former companies had the same record keeping procedures (approved by their POI). Fill out a FORM 1- this was the aircraft log book that included among other things (aircraft time, engine time, etc.) duty on/off times.

Now, Im sure many will say "if you documented duty on/off times then the crew member must know that he is at rest." We must remember we are dealing with scoundrels. Follow me now.

Lets say that I land in TEB at 2000Z, fill out the Form 1 and document duty ON time was 1200Z and duty OFF time was 2030Z. Eight and half hours of work. Banker's hours.

Unfortunately early the next morning I get a call and have to be at the field no later then 0630Z (ouch). I show up and duty ON time starts at 0630Z. Ten hours have lapsed from the day before and I start a NEW Form 1. I fly my trip, grease my landing and everybody is happy including the POI.

Why is the POI happy? Because the Form 1 from the day I landed in TEB and the Form 1 from the next day do not show any ACTIVITY for Ten hours,implying that I was at rest for that Ten hours. To bad I didn't know I was at rest. I still had 5 and half hours left before I reached 14 hours and turned into a pumpkin.

These bottom feeders would keep the crew on call for the remaining 5 and half hours in a case there was a "pop up flight" that could be completed in that time frame. In this situation I would simply fill out a new Form 1 (perfectly acceptable to the POI) and show duty ON time as 2030Z from the example above and a new customer (i.e. different PAX).

The worst of it was that if no pop up flight occurred in that remaining 5 and half hours then that time counted towards the ten hours of "rest time". LOVELY

Each Form 1 documents ONLY duty on/off time and NEVER documents when REST TIME (which I realize should start when you duty off) began. My experience has been (and I believe for many others) that all that is required from the FEDS is that the Form 1's document a TEN hour period of INACTIVITY.No where is it documented that I am on call and expected to fly should a trip come up. You get to call it rest if not pop flight occurred and we all know that is bogus.

The ten hours of rest is implicit BUT NOT DOCUMENTED and that leaves a lot of room for manipulation. The Feds know this but simply don't care.

 

[pilotyip]

violates the beer rule

Av,


These bottom feeders would keep the crew on call for the remaining 5 and half hours in a case there was a "pop up flight" that could be completed in that time frame. In this situation I would simply fill out a new Form 1 (perfectly acceptable to the POI) and show duty ON time as 2030Z from the example above and a new customer (i.e. different PAX).

The worst of it was that if no pop up flight occurred in that remaining 5 and half hours then that time counted towards the ten hours of "rest time". LOVELY

.

you could not drink at beer therefore you were not in rest. If they put you in rest, pop a beer finish it 8 hours before you are legal and they can not touch you.

 

[Ernest T. Bass]

[SIZE=+3]United States Court of Appeals[/SIZE]
[SIZE=+2]For the First Circuit[/SIZE]​

No. 99-1888

AVIATORS FOR SAFE AND FAIRER REGULATION, INC.,

Petitioner,

v.

FEDERAL AVIATION ADMINISTRATION,


Respondent.


ON PETITION FOR REVIEW OF AN ORDER OF


THE FEDERAL AVIATION ADMINISTRATION



Before

Selya, Boudin and Lynch,​

Circuit Judges.​

John M. Edwards with whom John C. Blessington and Kirkpatrick & Lockhart LLP were on brief for petitioner.
Charles W. Scarborough, Appellate Staff, Civil Division, Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, and Robert S. Greenspan, Appellate Staff, Civil Division, Department of Justice, were on brief for respondent.


July 25, 2000


BOUDIN, Circuit Judge. Petitioner, Aviators for Safe and Fairer Regulation, Inc. ("Aviators"), is a trade association of about fifty on-demand air charter companies. It brings this case to challenge a so-called notice of enforcement policy issued by the Federal Aviation Administration ("FAA") that purports to interpret, and to express its intent to enforce, a preexisting regulation governing how much rest pilots or other flight crewmembers must get between flight assignments.
Air charter companies furnish "air taxi" service to customers on demand rather than on a scheduled basis. The FAA regulates such companies under Part 135 of its regulations, 14 C.F.R. pt. 135 (2000). The regulation at issue in this case, id. § 135.267(d), was adopted in its current form in October 1985 and aims to ensure that pilots have adequate rest for purposes of air safety, see 49 U.S.C. §§ 40101(d), 44701(a)(4)-(5) (1994 & Supp. II 1996). It states, in relevant part, that each flight assignment to unscheduled one- and two-pilot crews "must provide for at least 10 consecutive hours of rest during the 24-hour period that precedes the planned completion time of the assignment." 14 C.F.R. § 135.267(d).
The term "rest" is not defined in the regulation. On several occasions, the FAA sought to refine the term through rulemaking but those efforts were abortive.(1) Then, on June 15, 1999, without prior notice or rulemaking proceedings, the FAA issued a "notice of enforcement policy." The notice said that it was merely reiterating the FAA's "longstanding interpretation of its regulations" concerning rest requirements and continued in pertinent part:
[T]he FAA has consistently interpreted the term rest to mean that a flight crewmember is free from actual work from the air carrier or from present responsibility for work should the occasion arise. Thus the FAA previously has determined that a flight crewmember on reserve was not at rest if the flight crewmember had a present responsibility for work in that the flight crewmember had to be available for the carrier to notify of a flight assignment.



Notice of Enforcement Policy, 64 Fed. Reg. 32176, 32176 (1999). The principal controversy centers upon how (and in one case whether) the notice resolves two different scenarios, which we shall refer to as the duty-to-report and the duty-to-be-available.
In the duty-to-report scenario, a crewmember who is nominally off duty has a responsibility during the period to leave a contact number, to be fit to fly, to take any telephone calls or other communications notifying him of a flight assignment, and to report for that assignment in a reasonable time (e.g., two hours). In the duty-to-be-available scenario, the same is true but the crewmember has the option to accept or decline a flight assignment that is offered during this off-duty period. It is easy to see why such arrangements would be attractive to an air taxi carrier.
Under either scenario, a call to the crewmember followed by an accepted assignment would (at some stage) terminate any "rest" that might otherwise be accruing. The crewmember, to be eligible for the assignment, would have to have met the "ten hours rest" quota based on "rest" that had already occurred. But the FAA's position in its notice as to the duty-to-report scenario (the duty-to-be-available scenario is a different issue) is that even if no call were made during this nominal off-duty period, none of the period would count as rest because the generic responsibility to leave a number, take calls, and report if assigned would negate "rest" for the entire period.
Aviators sought direct review of the notice under 49 U.S.C. § 46110 (1994), which permits any person "disclosing a substantial interest in an order issued by" the FAA with respect to aviation safety matters to seek review in an appropriate court of appeals, id. § 46110(a). The court of appeals has "exclusive jurisdiction to affirm, amend, modify or set aside any part of the order and it may order" the FAA to conduct further proceedings. Id. § 46110(c). We consider first threshold issues as to our authority to review the notice; then, Aviators' procedural claim that the notice required notice and comment rulemaking; and last, Aviators' substantive attacks on the FAA's position.
1. The FAA does not directly dispute that its notice of enforcement policy constitutes an "order," but raises the issue obliquely, saying that it is merely giving advance notice of an intention to enforce the law. Whether a notice thus limited would be reviewable is beside the point; here, the FAA's "notice" adopts a firm interpretation of an existing regulation. The term "order" is read expansively in review statutes generally, 5 U.S.C. § 551(6) (1994) (an "order" includes "the whole or a part of a final disposition, [including those] declaratory in form"), and this statute specifically, New York v. FAA, 712 F.2d 806, 808 (2d Cir. 1983); Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1313-14 (8th Cir. 1981). To that extent, the notice here qualifies as a reviewable "order," assuming other conditions (e.g., finality, ripeness) are met.
Several circuits (although not this one) have said that there must be "an administrative record" for agency action to be a reviewable order under section 46110. See, e.g., Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993); City of Alexandria v. Helms, 728 F.2d 643, 646 (4th Cir. 1984). Yet almost all of these cases find that the requisite record need not be substantial so long as the agency's position is definitive and clearly expressed. See San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966, 969 (9th Cir. 1989) (a letter may suffice). In any event, an inadequate record is more likely to be a basis for setting aside final agency action than for refusing to review it. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419-20 (1971).
The FAA does not contest the notice's finality--and with good reason. The notice is unquestionably final in a procedural sense: it is not a proposal to interpret a regulation, and there is no indication that the FAA plans to conduct further proceedings on this declaration. See Alexandria, 728 F.2d at 646. Rather, the FAA's principal challenge to our review at this time--its request that review be deferred until there is an actual enforcement proceeding in which objections might be raised in defense--is an argument properly considered under the rubric of ripeness. See Public Serv. Comm'n v. Patch, 167 F.3d 15, 23 (1st Cir. 1998).
An issue is ripe for judicial review if it is "fit" for immediate review and delay would impose "undue hardship" on litigants. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). As to hardship, the FAA's notice promised "enforcement" (after a 180-day grace period that has already expired, 64 Fed. Reg. 32176, 32176 (1999)), not opportunities for negotiations or further clarification, and enforcement may include penalties up to and including the revocation of charters, 14 C.F.R. § 13.19(b) (2000). Conversely, compliance may also require major changes in air taxi operations, and deferral of review would clearly threaten hardship. Cf. Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847 (1st Cir. 1990).
With respect to fitness, the most common concern is whether a rule or order is framed in terms so general that only its application to specific facts (usually in an enforcement proceeding) would permit the court to make a reasoned judgment. Patch, 167 F.3d at 23. As to the duty-to-report scenario, we think that the FAA's position is plain enough from the language of its notice,(2) especially when read in light of prior statements (discussed below), and involves a clear-cut pattern of conduct that may arise frequently in air taxi operations. In this respect, the notice is well fit for review at this time.

 

[Ernest T. Bass]

The duty-to-be-available scenario is different. Although Aviators has presented a distinct pattern of conduct likely to be important to air taxi operations, we find no similar clarity in the notice (see note 2, below), or earlier interpretive letters (see note 6, below), to show how the FAA would resolve the scenario. True, one footnote in the FAA's brief, and its statements at oral argument, suggest that an unrequited duty-to-be-available is not "rest," but we are unwilling to bind the agency to the less-than-clear litigation position of its lawyers in deciding whether a controversy is fit for review. Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988).
A final issue of "authority" which was not raised by the FAA--indeed, it commendably conceded the point at oral argument--deserves to be mentioned. The review statute, 49 U.S.C. § 46110 (1994), imposes a sixty-day time limit on petitions for review unless "there are reasonable grounds for not filing by the [sixtieth] day" after the order, id. § 46110(a). Here, the petition for review (filed August 6, 1999) is timely as to the notice of enforcement policy (issued June 15, 1999), but comes years after the order adopting the 1985 regulation at issue. Yet, as we will see, Aviators could be regarded in some respects as attacking the original regulation.
If so, this case arguably falls within the proviso of the statute permitting a later challenge where there are "reasonable grounds" for the delay.(3) Here, reasonable grounds probably exist for a deferred attack inasmuch as neither the original 1985 regulation nor accompanying commentary eliminated uncertainty as to how the FAA might resolve any of a number of scenarios (including the duty-to-report and the duty-to-be-available) that might arise in practice. Cf. Charter Township of Huron v. Richards, 997 F.2d 1168, 1172-73 (6th Cir. 1993); Greater Orlando Aviation Auth. v. FAA, 939 F.2d 954, 960 (11th Cir. 1991).
2. As the parties have briefed the issue, the first question on the merits is procedural: whether the FAA was required to conduct notice and comment rulemaking before issuing its notice of enforcement policy. If the FAA were altering or enlarging obligations imposed by a preexisting regulation, notice and comment rulemaking would be required, see Warder v. Shalala, 149 F.3d 73, 80-81 (1st Cir. 1998), cert. denied, 67 U.S.L.W. 3470 (U.S. Apr. 19, 1999) (No. 98-1131), but a mere "interpretation" can ordinarily be done without rulemaking, id. at 80; see also 5 U.S.C. § 553(b)(B) (1994). Whether "ordinarily" means "always" is an interesting question. Cf. Dugan v. Ramsay, 727 F.2d 192, 196-98 (1st Cir. 1984) (rejecting agency "interpretation" without rulemaking); Jicarilla Apache Tribe v. FERC, 578 F.2d 289, 292-93 (10th Cir. 1978) (same).
To determine whether the FAA is altering or enlarging the 1985 regulation depends on the "meaning" of the original regulation (validity is a different question). See Warder, 149 F.3d at 80-81. The 1985 regulation, as applied to the scenarios at issue, supplies no very clear answer because it does not define "rest" or otherwise indicate how the FAA would resolve the duty-to-report scenario. See 14 C.F.R. 135.267(d) (1986); 50 Fed. Reg. 29306, 29311-14, 29317 (1985). Nor is help provided by a precursor regulation first codified in 1970 from which the key 1985 language was borrowed. See 14 C.F.R. § 135.136(b) (1970); 34 Fed. Reg. 1443, 1444 (1969).
Of course, subsequent administrative interpretation is often treated as evidencing, or substituting for, a supposed "original" intent. See Mullins Coal Co. v. Director, 484 U.S. 135, 159-60 (1987). And the gist of Aviators' claim is that despite the open-textured quality of the 1985 regulation, it had been given meaning over time and had come to rest in a well-settled interpretation that is favorable to Aviators' cause, which the notice of enforcement policy mistakenly contradicts. A less extreme version is that at least the agency must give "reasons" why it is reversing an established position. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Citizens Awareness Network, Inc. v. Nuclear Regulatory Comm'n, 59 F.3d 284, 290 (1st Cir. 1995).
As to the duty-to-report scenario, it is clear to us that there is no "reversal": the FAA has consistently maintained--in its interpretive letters, bulletins, and other statements--that an off-duty period encumbered by the threat of interruption from a mandatory assignment is not rest. For example, Flight Standards Information Bulletin 92-02 (Jan. 24, 1992) states that "the FAA has consistently interpreted its "nest" requirement to be satisfied only if the rest time is: determined prospectively . . . . A period of time during which a pilot has a present responsibility for work, if called, does not qualify as a rest period. This should be contrasted with a pilot who does not have a present responsibility to fly, when called."(4)
Admittedly, this position, whether in its most recent articulation in the notice, or in the FAA's previous explanations, is not as clear as it could be;(5) but it is clear enough. In fact, there are interpretative statements to the same effect preceding 1985. See, e.g., Letter from A.W. Lalle, Acting Associate General Counsel, FAA, to John F. Nevins, Air Line Pilots Association (Feb. 5, 1968) ("[W]hen a flight crewmember is required by the air carrier to hold himself available to call, it constitutes a restraint which interrupts the 24-hour period, which we have held should be free from a loss of freedom or restraint."). More important, there is no evidence that the FAA has ever said that the duty-to-report scenario did count as rest. The 1992 FAA bulletin on which Aviators relies, which we have just quoted, actually hurts its "reversal" claim.
Nor are we troubled by Aviators' argument that the FAA's current position on the duty-to-report scenario is inconsistent with a decision by the Eighth Circuit. See United States v. Ozark Airlines, Inc., 506 F.2d 526 (8th Cir. 1974). That decision construed a weekly rest requirement regulation, 14 C.F.R. 121.471(d) (1970), and inferred from the use of "duty" in other subsections that rest "from all further duty" meant rest from "duty aloft." Ozark, 506 F.2d at 237. "Duty aloft" was changed to "flight time" in the 1985 version of this regulation to make clear that "duty," for purposes of the rest requirements, was a broader concept than "duty aloft." See 14. C.F.R. §§ 121.471(a)-(c) (1986).
By contrast, the FAA has been much less consistent as to the duty-to-be-available scenario. The relevant interpretive letters appear not merely in tension, but at odds,(6) and on this point, the 1992 Bulletin is arguably helpful to Aviators. See Flight Standards Information Bulletin 92-02 ("A period of time during which a pilot has a present responsibility for work, if called, does not qualify as a rest period. This should be contrasted with a pilot who does not have a present responsibility to fly, when called."). But, as earlier explained, we still do not know for sure how the FAA would resolve this latter scenario. 3. This brings us to Aviators' substantive attacks, whether treated as attacks on the notice or on the regulation itself. Here, the FAA starts with a substantial advantage: the question how much rest flight crewmembers should be given to guard against pilot fatigue and what interruptions should count against satisfying the ten-hour rest requirement are technical issues involving safety where the agency's latitude is substantial. See 49 U.S.C. § 40101(d), 44701(a)(4)-(5) (1994 & Supp. II 1996); see also Bargmann v. Helms, 715 F.2d 638, 641-42 (D.C. Cir. 1983); Air Line Pilots Ass'n Int'l v. Quesada, 276 F.2d 892, 898 (2d Cir. 1960). And absent a mistake of law, the standard of review is whether the agency's actions are arbitrary or capricious, 5 U.S.C. § 706(2)(a) (1994), and whether any fact findings it made rest on substantial evidence, 49 U.S.C. § 46110(c) (1994).
Nevertheless, Aviators says that the FAA admits that a brief, unexpected phone call from the carrier does not disturb rest so as to require the ten-hour clock to be restarted. See, e.g., Letter from Donald P. Byrne, Assistant Chief Counsel, FAA, to Albert C. Pod, Vice President, Executive Jet Management (Apr. 19, 1991). The FAA verified at oral argument that it has not disclaimed that position, and indeed, the language of the 1999 notice --"if the flight crewmember . . . had to be available for the carrier to notify of a flight assignment"--arguably would not be triggered by an unanticipated phone call. Aviators says that, in light of this concession, it is irrational to deny the "rest" label in the duty-to-report scenario when no call in fact occurs.

 

[Ernest T. Bass]

We do not agree. The agency is perfectly entitled to regard a single unexpected phone call as less of a psychological interruption to pilot rest than the continuing burden that exists in the duty-to-report scenario even when no call occurs. In the latter case, the pilot is effectively on a leash and knows that at any point (after ten hours) he may be summoned back to duty, for which he must remain "fit" to fly. Whether or not the FAA has drawn the line in the right place, the distinction drawn is not irrational.
Aviators' best claim is that there is no "explanation or evidence" in the record that excluding the duty-to-report time from "rest" is "necessary for, or even advances" safety. And, although the FAA has elsewhere referred to "scientific studies of fatigue," Notice of Proposed Rulemaking, 60 Fed. Reg. 65951, 65951 (1995), it points to no evidence or even a thoughtful discussion of the specific issue either in the notice or in the order adopting the 1985 regulation. Instead, the FAA's brief offers an explanation. To remove the taint of post hoc rationalization, see State Farm, 463 U.S. at 50; Natural Resources Defense Council v. EPA, 824 F.2d 1258, 1286 & n.19 (1st Cir. 1987), we note that the explanation is pretty obvious; the harder question is whether it is sufficient.
The FAA's commonsense explanation is this: given the purpose of the rest requirement to assure that the flight crew is refreshed and alert, anything that materially compromises a state of affairs conducive to rest threatens refreshment and alertness; and a flight crewmember who is on call and subject to the various duties imposed by the duty-to-report scenario is less likely to be as refreshed and alert as one who need not worry that a demand to fly may come at any time. This is plausible enough; neither administrators nor judges are expected to ignore the known realities of human existence. See, e.g., Texas E. Prods. Pipeline Co. v. OSHA, 827 F.2d 46, 49 (7th Cir. 1987) (affirming agency's "common sense reading" that a "hole in the ground is, after all, a hole in the ground").
The force of this commonsense explanation is reinforced by the fact of its long standing--at least fifty years. In 1949, the acting general counsel of the Civil Aviation Administration was asked for an interpretation of then-existing "relief from all duty" requirements. Letter from Robert P. Boyle, Acting General Counsel, Civil Aviation Administration, to Coordinator, International Field Office, Lima, Peru (April 22, 1949). The inquiry presented the following scenario: "[An air carrier] schedules a 'stand by' crew which must remain at home subject to immediate call as replacement in case any of the originally scheduled crew are unable, because of sickness, etc., to take the trip out as scheduled. This 'stand by' crew, if not called as a replacement on that day, is then scheduled as a regular crew for a trip on the following day." Id.
In response, the acting general counsel ruled:
This appears to be such a lack of freedom of restraint and release from duty as to prevent the full and free exercise of an opportunity to rest intended by the rest period provisions of the Civil Air Regulations. It is immaterial that the pilots are not required to report to the airport or actively engage in work for the air carrier during the period of the stand by schedule. The term "relief from duty" as used in the above-noted section means that the pilot must be relieved from either actual work for the air carrier or present responsibility for such should the occasion arise. A "stand by" schedule of the type described in the memorandum does not provide such relief from all duty with the air carrier.



Id.
Of course, without "evidence," we have no way of knowing just how much these stand-by duties do compromise rest. But agencies often make choices where no evidence can demonstrate a single right answer. Determining cut-off toxicity exposures in environmental regulation, see Public Citizen Health Research Group v. Tyson, 796 F.2d 1479, 1504-05 (D.C. Cir. 1986), or rates of return in utility cases, see Borough of Ellwood City v. FERC, 731 F.2d 959, 974-75 (D.C. Cir. 1984), are good examples. Where, as here, the agency's choice appears to be within a zone of reasonableness, a court will normally defer. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951); Consolidated Oil & Gas, Inc. v. FERC, 806 F.2d 275, 279 (D.C. Cir. 1986).
The more serious difficulty is the lack of an opportunity for Aviators or other opponents to offer such rebuttal commentary or evidence. But, of course, Aviators has not claimed to have medical studies or expert testimony to show that the restrictive reading serves little or no purpose: it says only that the FAA has failed to provide supporting evidence of its own. Perhaps Aviators can develop compelling physiological evidence or collect the testimony of affected pilots to show that duty-to-report time gives pilots as much "rest" as time at home with no overhanging responsibilities. If so, Aviators can file a petition tendering the evidence and asking the FAA to modify its regulation accordingly. 5 U.S.C. § 553(e) (1994).
This is a close case and we have given careful consideration as to whether a remand might be warranted. But the FAA's position on duty-to-report time is on its face plausible even without evidentiary support; this position has been consistent over time, even assuming that enforcement has been lax; and there is no indication from Aviators that it could supply useful evidence if we did order a remand. The FAA should not assume that the duty-to-be-available scenario--only a step further down the road but a significant step since the crewmember could refuse the assignment--would automatically be sustainable on the same basis.
A somewhat different rationale for its narrow view of "rest" seems to be articulated in the FAA's brief in this court which might, if adopted by the agency itself, provide additional support for its position on the duty-to-report scenario and also apply equally to the duty-to-be-available scenario. The reasoning does not depend on the psychological burden of overhanging obligations but on the possible threat that recalling the flight crewmember to duty after the initial ten hours of rest could throw off the sleeping rhythms of pilots in an unacceptable way.(7) This concern, which the FAA itself may never have articulated, may or may not be substantial, and we express no opinion on the merits.
Last, Aviators says that the FAA's position is unreasonable and unfair because no corresponding rest requirements exist for fractional ownership programs, which allegedly compete with air taxi carriers but are governed by Part 91 of the FAA's regulations, 14 C.F.R. 91 (2000). This argument has not been well developed in this court; and there may be substantive differences in operations that justify the FAA's decision to regulate the two kinds of programs differently. But the FAA would have some explaining to do if the two sets of operations are pertinently the same, especially if there is a competitive relationship between them. Cf. Town of Norwood v. New England Power Co., 202 F.3d 392, 402-03 (1st Cir.), petition for cert. filed, 68 U.S.L.W. 3756 (U.S. May 30, 2000) (No. 99-1914).
However, agencies are not normally required to solve all similar problems at one time. See Mobil Oil Exploration v. United Distrib. Co., 498 U.S. 211, 231 (1991). The FAA is currently reviewing its regulation of those fractional ownership programs in separate proceedings. Aviators is free to argue its case in those proceedings, and if unsuccessful, it may seek review of that agency action under the same statute that enabled review in this case, 49 U.S.C. § 46110 (1994), or file a petition for rulemaking to modify the current regulation (14 C.F.R. § 135.267(d) (2000)) and spell out then the disparate impact claim in greater detail, 5 U.S.C. § 553(e) (1994).
Accordingly, we sustain the FAA as to the duty-to-report scenario and treat as unripe Aviators' claims regarding the duty-to-be-available scenario. With respect to the latter, Aviators is free to seek a formal declaratory ruling from the FAA and to present its policy arguments and evidence to the agency. See 5 U.S.C. § 554(e) (1994). While the agency has discretion to refuse such a ruling, that refusal is reviewable for abuse of discretion, see Intercity Transp. Co. v. United States, 737 F.2d 103, 106-07 (D.C. Cir. 1984); cf. DeNovellis v. Shalala, 124 F.3d 298, 313 (1st Cir. 1997), and we think that a refusal to tell Aviators in advance whether the scenario constitutes "rest" would itself require a lot of explaining.
The petition for review is denied to the extent stated and otherwise dismissed as presenting an issue unripe for review at this time.
It is so ordered.

 

[Ernest T. Bass]

From Bulletin 92-02:

A. General. A recent FAA legal interpretation pertaining to flight crewmember rest requirements in the FAR’s has generated numerous inquiries from both industry and FAA field inspectors regarding how the Flight Standards Service plans to implement the interpretation. This FSIB contains an overview of the issue itself and guidance to inspectors regarding the interpretation as it applies to flight crewmember rest requirements.
B. Overview of Issue. Specifically, the legal interpretation addresses the question as to whether the FAA considers reserve duty, standby duty, carrying a pager or other telephonic device, to be duty under FAR Section 135.263(b). FAR 135.263(b) states that no certificate holder may assign any flight crewmember to any duty with the certificate holder during any required rest period. FAR Sections 135.271(g), 121.471(e), 121.481(b), and 121.505(a) contain language similar to that contained in FAR Section 135.263(b).
C. Interpretation and Guidance. The interpretation states in pertinent part that the FAA has consistently interpreted its "rest" requirements to be satisfied only if the rest time is: determined prospectively; is continuous; is free from all duty and restraint; and, is free from the responsibility for work should the occasion arise. A period of time during which a pilot has a present responsibility for work, if called, does not qualify as a rest period. This should be contrasted with a pilot who does not have a present responsibility to fly, when called. For example, when called, the pilot is merely notified of a flight assignment to take place at the conclusion of his/her rest period. The practical effect of this interpretation is that a certificate holder would not be permitted to assign a flight crewmember to reserve duty or standby duty during a rest period. Apparently, many persons within the industry and within Flight Standards do not have a clear understanding of whether or not it is permissible for flight crewmembers to perform "reserve and standby duty" during a rest period. Flight Standards is currently working with the FAA General Counsel and with industry to clarify this issue. Further guidance on this issue will be provided to the field as soon as possible.