135 Duty day

[A Squared]

Maybe we were an exception - but our GOM told us what set of rules we were being scheduled under (it was the "scheduled operations" one, not the 14 hour one) so we didn't have a choice. Sometimes we would have been better off with the unscheduled ops. version, but that was too bad.

Yeah, I didn't mean that you could just say, hey, today we're going to operate under these rules instead of those rules.

 

[charter dog]

And its coming faster then you think.

Tell me another one!

Stealth:

Wisecracks aside, I have been hearing about this for at least the last 3 years. Nobody would like to see this 135 crew duty and rest mess cleaned up more than I would. The rumor mill has generated some wildly disparate versions of what the new rules may look like. The one I hear the most is that the issue of "on call" will finally be addressed within a "reserve duty" definition. Also that "scheduled duty" will be further defined. And that many options affecting duty and flight time limitations will be included.

In a give and take negotiation process similar to the one used to develop the 91 subpart K rules, multiple interests are involved in the Aviation Rulemaking Committee (ARC). So it would be reasonable to expect that many compromises will be required prior to submitting the package for approval. It remains to be seen how this will affect the average part 135 pilot's job. (and life!) I don't know how well pilot/employee interests are/were represented within the committee, but hope springs eternal!

That's what we'll find out when the re-write is released to the public. The latest news fron AIN (April, '06) suggests that the industry committee (ARC) has submitted their work product to the FAA and it is currently "under review." To get an idea how long this has been in the works, I had a peek at the NTSB "most wanted" list for some history on the matter. Even if approved today, I would be somewhat surprised to see the new 135 rules take effect before 2008. "Industry" needs time to examine the economic impact and contest anything they don't like!

If you, or anybody have any additional insight on the content specifics of the ARC recommendations, please share them here. I would be most interested. What I have heard is only second hand rumor from someone who spoke with a committee participant.

Best,

 

[HS125]

Is that true? I'm in the 121 world now and the duty day is inviolate (well duty day doesn't exist, but the required rest provisions). Even if flights have been delayed all day we can't start the last leg unless we'll be finished within a 16 hour duty day (reduced rest). Now the LAST flight can suffer unforseen delays IN THE AIR and what can you do, but if we're delayed on the ground and run out of time, it's back to the gate.

I thought 135 was the same - maybe not.

I don't have a copy of 121 regs handy, and I'm too lazy to look them up on the net. But, that is the way 135 is written and (in the case of my former POI) applied. It's been a while since I flew 121, but if I remember correctly, you are correct, if you can't get it in the air before you turn into a pumpkin then you went to the hotel.

 

[mike1mc]

You know its funny, we are beating this to death, and the FAA is almost finished re-writing the entire 135 section. From what I have heard, the new 135 will have a much better duty system. It will be much better for pilots. Completely different from what is in place now. And its coming faster then you think.

Don't hold your breath. Flight and Duty has been a hot topic with the FAA for the past 15 years. They have attempted numerous re-writes, but never gotten very far. The 135 ARC has a very good proposal, but the proposed "program" is VERY confusing. Hopefully the FAA with accept the proposal (along with the many others for Part 135). The issue came up with 91K and it was decided to drop it then too. For some reason ALPA keeps throwing their noses into the 135 Duty issues as well.

 

[Stealthh21]

Don't hold your breath. Flight and Duty has been a hot topic with the FAA for the past 15 years. They have attempted numerous re-writes, but never gotten very far. The 135 ARC has a very good proposal, but the proposed "program" is VERY confusing. Hopefully the FAA with accept the proposal (along with the many others for Part 135). The issue came up with 91K and it was decided to drop it then too. For some reason ALPA keeps throwing their noses into the 135 Duty issues as well.

Quite right for sure! The only reason why I brought it up, is because a friend of mine is on the committee that is working with the FAA. He seems to think that the FAA is doing a good job working with those that are in the industry. Alot of interesting stuff going on. Kinda wish the FAA moved as fast as some of the airplanes that we fly!!

Anyway, it's nice to see a good and useful thread!!

Safe flying!!!

Stealthh

 

[mike1mc]

Its great the FAA s finally getting industry input before creating all these new regs. The 91K FOARC worked so well that they decided to do the same for the 135 re-write. Some great ideas and discussion came out of these meetings. Hopefully the changes will take place before I retire!!!

 

[CaptainSpaz]

HS125 is correct. I have seen a copy of the legal brief written by FAA Legal Dept. Basically what they are saying is they screwed up. Legally you can go over for ANY unforseen circumstance, and that is their fault for making the regs too vauge. I am pretty certain they will be rectifying this with the new time/duty regs if they get approved.

I operate on my own standard until the regs firm up. Most pilots I know worth anything would agree with this, as do every POI I ever worked with:

1) 14 hours is an absolute limit.

2) 8/10 hours flight may be exceeded ONLY for UNFORSEEN weather or ATC delays.

Until they fix the regs, the discussion continues. The part about the FAA legal brief that I liked was how it said that pax being late was ok for exceeding time/duty. Think about this one...

Customer: "I wont be able to make it back until 10pm from the meeting, will this be a problem for the crew?"

Sales: "No, when the day comes and the crew asks when you will be returning, just tell them 8pm and show up late. Make some excuse why you were late. It will be fine."

That would happen every day. I can only hope the rulemaking comittee moves quickly to impliment the recommended new time/duty regs. The new regs are only about 30 years overdue.

 

[Vspeeds]

In rest Yet Burning time

Folks, whats your take on a particular issue:

Say a crew starts duty at 0800 am & is good till 2200. They fly for 2.5 hours complete that trip in 4 hours. They have 10 hours of duty left.
Crew scheduler/Flt. Follower says "ya'll can go to bed but if we get a trip we'll page you.
So my question is how can you be in rest and at the same time burning duty time? Cuz if you do not get a trip in those 10 hours that cannot be construed as rest. Either you are in " total & uninterrupted" rest or you are on call. You can not be doing both. (just my 2 cents)

Appreciate any info!

 

[A Squared]

So my question is how can you be in rest and at the same time burning duty time? Cuz if you do not get a trip in those 10 hours that cannot be construed as rest. Either you are in " total & uninterrupted" rest or you are on call. You can not be doing both. (just my 2 cents)

You're right. Counting it as rest if you don't get a call ain't legal. The FAA has stated that the obligation to work, should work arise *is* duty. So, yeah if you're expected to pick up hte phone and report for work, it's not rest.

Also the FAA has stated that rest must be "prospective" in nature, meaning you should know ahead of time that it's rest. SAying hey, we didn't call you in hte last 10 hours, so that was your rest isn't legal.

 

[Carlos O'Maley]

Like it or not, agree with it or not, the current FAA interpretation of 135.267 is such that as long as the assignment is planned "Scheduled" to be 8 hours of flying (10 hours as the case maybe) or less and 14 hours of duty or less, you may exceed those numbers for unforeseen circumstances (weather, ATC, late freight and/or passengers). As long as you have the 10 hours of rest in the preceding 24 hours prior to the "Planned (Scheduled) Completion" of the trip, you can still fly past the 8/10 hours flight time and well past 14 hours of duty. Just make sure you document the circumstances that caused you to exceed those times.

I am in no way saying that you are off base on this one because that is the way that I use to interpret this reg, and that's the way I think it should be interpreted! It wasn't until I had a former POI spell it out to me that I realized that this reg doesn't provide much protection for the pilot when it comes to getting proper rest.

Legal to start, legal to finish.

First, I'll be very clear, I don't like it, because that interpretation does not follow the intent of the regulation or a comom sense rule of safe operation. But, that being said, the last time I looked the regulation only addresses exceeding flight time limitations, not duty period limitations. I definitely think the regulations need to be changed and strengthened but I have never really felt they were vague. There just seems to be an abudance of operators that try to manipulate the current language... and an abundance of POI's who let it happen.

I appreciate the first part of your second paragraph but don't understand why you would change your opinion of a written regulation based on the interpretation or explanation of a POI. It is alarming how many POI's (the guys that are supposed to be the experts) are ignorant to many of the FAR's and how many of them will have specifically contrasting interpretations. But, the FAA has addressed this in prior publications and stated very clearly that a POI does not have the authority to "interpret" or make regulations. The only one that counts is that of the Office of the Chief Counsel, Regulations Division, or a higher courts ruling.

My biggest concern with the trend of interpretations is with the definitions of duty and rest and being on-call, not so much the limitations. I have had many discussions with POI's about the duty, rest, and on-call debate. I feel the FAA has been very clear on the matter, if you are required to be on call or are not "free of all responsibility for work or duty should the occasion arise" then you are not in rest, period. But you will find POI's with "different interpretations" even though there are numerous notices, letters of opinions, and official publications addressing the matter. Coincidentally, I haven't yet found one of those POI's with different opinions that would make an official written and signed statement of his or her interpretation... curious.

But the bottom line is this, whether there is a rewrite of the current language or a change in the current regulation or not, it is up to each of us pilots to do the right thing and not do the wrong things. Just my observation, but I have found that most of the aviation guys in offices, especially in 135, end up being more concerned with a few other things and less concerned about regulations.

 

[Lostdog65]

You're right. Counting it as rest if you don't get a call ain't legal. The FAA has stated that the obligation to work, should work arise *is* duty. So, yeah if you're expected to pick up hte phone and report for work, it's not rest.

Also the FAA has stated that rest must be "prospective" in nature, meaning you should know ahead of time that it's rest. SAying hey, we didn't call you in hte last 10 hours, so that was your rest isn't legal.

Again...look back 24 hours...did you have 10 hours of consecutive rest? Yes? Then you're good to go. If you were on for 4 hours then off for 10, not assigned any duties, not updating Jepps, but were off duty, away, "resting", then you're good to go in their eyes. Now if you were "on call", I consider that "assigned duties/on a duty day". And I'll argue to the death otherwise!

(Been there...done that...blah, blah, blah!)

Eric

 

[CaptainSpaz]

You're right. Counting it as rest if you don't get a call ain't legal. The FAA has stated that the obligation to work, should work arise *is* duty. So, yeah if you're expected to pick up hte phone and report for work, it's not rest.

Also the FAA has stated that rest must be "prospective" in nature, meaning you should know ahead of time that it's rest. SAying hey, we didn't call you in hte last 10 hours, so that was your rest isn't legal.

Do you have any documentation for this?

 

[A Squared]

Do you have any documentation for this?

Yep, sure do. I've appended the complete text of 2 legal interpretations from the FAA's office of Chief Counsel. Here's the relevant passages.


From the first interpretation:

The FAA has consistently interpreted a "rest period" to be a continuous period of time that is free from all restraint. This includes freedom from work, and freedom from responsibility for work should the occasion arise.

"Duty" has been interpreted to mean actual work for an air carrier or present responsibility to work should the occasion arise.

And from the second interpretation:

The FAA has consistently defined "duty" to mean actual work for an air carrier or present responsibility to work should the occasion arise. Duty includes all preflight and postflight activities.

If you have an obligation to pick up the phone (or answer a page) and come to work if called, it *is* duty and it *is not* rest.

From the second interpretation:

"Rest" is a period free from all duty and free from all present responsibility for work or duty. Rest is determined prospectively.

Prospective means "looking ahead" It's not rest if you don't know ahead of time that it's rest. You can't look back at a time period and call it rest because you weren't called.

October 28, 1991
Mr. David Bodlak
Director of Flight Operations
Elliott Beechcraft of Omaha, Inc.
PO Box 19064
Omaha, NE 68119

Dear Mr. Bodlak:

Thank you for your letter of March 15, 1991, which was referred to this office by the Assistant Chief Counsel for the Central Region. We apologize that the press of
other inquiries and regulatory matters have prevented us from answering sooner.

In your letter you ask several questions pertaining to rest periods required under Part 135 of the Federal Aviation Regulations (FAR). You specifically ask about the
boundaries of responsibility assigned to the certificate holder when operations unrelated to FAR Part 135 are conducted by a corporation holding an FAR Part 135
Operating Certificate.

The hypothetical situation you give is as follows:

ABC Company, Inc. (ABC) holds FAA operating certificates under FAR Parts 135, 141, and 145. ABC is engaged in the following activities:

Aircraft Maintenance (FAR Part 43, 145)
Aircraft Refurbishing
Aircraft Refueling
Aircraft Sales
On-demand Aircraft Charter (FAR Part 135)
Flight Training (FAR Part 141)
Contract Flight Operations (FAR Part 91)

Your first question asks whether a crewmember (we assume you mean a pilot) who is Part 135 qualified may participate in any of the activities listed below during a
required rest period and still accept an assignment for ABC's Part 135 flight operations at the end of the rest period. The activities include:

Work for ABC's Certified Repair Station. (Part 145)
Painting an aircraft for ABC.
Fueling an aircraft for ABC.
Making an aircraft sales call for ABC.
Conduct of a training flight for ABC (Part 141)
Acting as a crewmember on a FAR Part 91 contract flight dispatched by ABC.

FAR 135.263(b) is quoted:

No certificate holder may assign any flight crewmember to
any duty with the certificate holder during any required
rest period.

None of the activities listed above may be performed by the flight crewmember during a rest period because they are all assigned by the certificate holder and thus in
violation of FAR 135.263(b). The FAA has consistently interpreted a "rest period" to be a continuous period of time that is free from all restraint. This includes
freedom from work, and freedom from responsibility for work should the occasion arise.

"Duty" has been interpreted to mean actual work for an air carrier or present responsibility to work should the occasion arise.

Your second question asks if this same flight crewmember may participate in the activities previously listed during a rest period if the work was done for another
company, not ABC, and whether the flight crewmember could then accept an assignment with ABC for flight operations under Part 135, at the end of the rest
period.

The answer is a qualified yes. ABC, as the certificate holder, has no way of forcing the flight crewmember to rest during a rest period. The prohibition against "other
commercial flying" during a rest period applies to flying assigned by the certificate holder. The other commercial flying done by the flight crewmember does count
against the daily 8 hour limitation if it is done before the Part 135 flying, and also counts against the pilot's quarterly and yearly flight time limitations. For example, 2
hours of "free lance" flight instruction by the pilot during his rest period limits him to only 6 hours of Part 135 flying time during that 24 consecutive hour period. Any
other commercial flying done after the Part 135 flying does not count against the daily limitation, but still counts against quarterly and yearly totals.

An additional caution is that it is a violation of FAR 91.13 for a certificate holder or a flight crewmember to operate an aircraft in a careless or reckless manner so as
to endanger the life or property of another. Lack of rest of the pilot is certainly a circumstance which could endanger others, and it is not necessary that the situation
devolve into actual endangerment for there to be a violation of FAR 91.13. A certificate holder who uses a crewmember with knowledge of his or her lack of rest
may be equally culpable along with the flight crewmember.

This interpretation has been prepared by Arthur E. Jacobson, Staff Attorney, Operations Law Branch, Regulations and Enforcement Division; Richard C. Beitel,
Manager, and has been coordinated with the Air Transportation Division of the Flight Standards Service at FAA Headquarters. We hope it has satisfactorily
answered your inquiry.

Sincerely,

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

FAA Legal Opinion:
March 26, 1992
Mr. John H. Darbo

Dear Mr. Darbo:

Your letter of March 30, 1991, to Mr. Mark Zink of the Federal Aviation Administration (FAA) Certificate Management Office has been forwarded to this office
for response. We apologize that the press of other matters, including safety rulemaking, petitions for exemptions, and requests for interpretations received prior to
your letter, have prevented us from answering you sooner.

Your letter asks two questions. In the first question you ask for a review of your company policies contained in your operations manual.

As you know, we issue legal interpretations of the Federal Aviation Regulations (FAR) based on actual or hypothetical fact situations. We traditionally have declined
to give legal approval to air carrier procedures manuals of this nature for several reasons. First, fact situations are not presented. Second, attempting to "approve"
such manuals would require our interpretation of the air carriers' statements. Third, the potential workload would involve thousands of Part 135 and Part 121
operations manuals, and we would accomplish little else. We believe that we should continue to conduct business as we have in the past and not review procedures
of this nature.

Your second question addresses the issue of "standby" or "reserve" duty for flight crewmembers. You say that you have reviewed the decision in U.S. v. Ozark Air
Lines, Inc., 374 F. Supp. 234 (E.D. Mo. 1974) aff'd 506 F.2d 526 (8th Cir. 1974), and that you also have reviewed an interpretation issued by this office to guide
you in setting your policy. Because you do not give a schedule of flight time, duty hours, and rest periods, we are not able to specifically evaluate the propriety of
what you describe. However, your announced intent to do the same as what you say the Part 121/135 carriers do, and the weekend "Reserve" duty you describe,
prompt us to make several general observations.

We consider the Ozark decision to be mainly restricted to the facts of the case. Ozark Air Lines had a two tiered reserve system of "standby reserve" and "backup
reserve". The decision only addresses the issue of whether "backup reserve" is considered duty. It does not address "standby reserve" at all. "Backup reserve" meant
that a flight crewmember had to be available to be contacted within a two hour period, and then had to report for duty within two hours of being contacted. The
court held that "duty" did not include backup reserve status, and that a crewmember may be available for duty during a rest period, as long as he is not actually
called to duty.

FAR 121.471 has changed since the Ozark decision. The words "duty aloft", which were the basis of that decision, were replaced with the concept of "flight time" in
1985. We are enclosing a copy of an interpretation dated May 31, 1989, which further discusses the Ozark decision.

The FAA has consistently defined "duty" to mean actual work for an air carrier or present responsibility to work should the occasion arise. Duty includes all preflight
and postflight activities.

"Rest" is a period free from all duty and free from all present responsibility for work or duty. Rest is determined prospectively.

A standby or reserve pilot has a present responsibility to work if called; therefore he is on duty because he is not free from restraint. Standby duty tolls the rest
period because a rest period must be free from restraint.

This interpretation has been prepared by Arthur E. Jacobson, Attorney, Operations Law Branch, Regulations and Enforcement Division; Richard C. Beitel,
Manager, and has been coordinated with the Air Transportation Division of the Flight Standards Service at FAA Headquarters. We hope it has satisfactorily
answered your inquiry.

Sincerely,

Donald P. Byrne
Assistant Chief Counsel
Regulations and Enforcement Divis

 

[A Squared]

Again...look back 24 hours...did you have 10 hours of consecutive rest? Yes? Then you're good to go. If you were on for 4 hours then off for 10, not assigned any duties, not updating Jepps, but were off duty, away, "resting", then you're good to go in their eyes. Now if you were "on call", I consider that "assigned duties/on a duty day". And I'll argue to the death otherwise!

(Been there...done that...blah, blah, blah!)

Eric

Eric, I don't disagree with this. Are you saying you read something different in what I wrote? I didn't intend to.

 

[pilotyip]

New Crew Assignment Policy

How about this one, I am on a day off, I have no obligation to the company. The company calls me at home and offers me a trip with a bonus for working on my day off. Can I accept a 16 hour day and 8 hours of flight time? How about I carry my pager with me on my day off , because I like bonus money for working on my day off and they page me and ask if I want to make $1,000 that day, am I full legal? If you answered yes, then we can have a new on-demand compnay policy every day is a day off. However you must fly a minimum 25 hours each month to maintain employment.

 

[Carlos O'Maley]

How about this one, I am on a day off, I have no obligation to the company. The company calls me at home and offers me a trip with a bonus for working on my day off. Can I accept a 16 hour day and 8 hours of flight time? How about I carry my pager with me on my day off , because I like bonus money for working on my day off and they page me and ask if I want to make $1,000 that day, am I full legal? If you answered yes, then we can have a new on-demand compnay policy every day is a day off. However you must fly a minimum 25 hours each month to maintain employment.

In my opinion, if you are conducting this under 135 the answer is clear, but not applicable to your entire scenario. If it is your day off and you elect to take an offered or available assignment (given you determine that you are airworthy and have the the adequate rest required per regs) the period leading up to the begining of the duty can and would be consider a qualified rest period because you weren't required to accept the assignment or answer your phone, etc. However, as far as the duty period, you would have to be operating with three or more required crewmembers (this can be in a two man or less aircraft if you have the appropriate approved Augmented Flight Crew authorization) to get the 16 hour day part, but the 8 hour flight time is within limitations.

As described above, you can carry your pager with you whenever you want as long as your employer/operator is not requiring it. If they are then it is not rest and you would have to be able to show the prescribed rest period at the completion of any assignment, or obtain that rest before begining the assignment (that rest can not and should not be any of the period you were required to be on-call).

Your "new" on-demand policy sounds like being a contract pilot to me, not an employee. But, in any event, just adding the requirement of minimum hours to be flown per month stipulates a requirement to accept an assignment under certain circumstances because it puts your continued employment under duress. Why not just work somewhere that employs enough crewmembers and can schedule for on-demand appropriately, or be a contract pilot?

 

[pilotyip]

Because the new crew rest may count pager time as duty time, the operator will have to have more pilots to provide 24 hour coverage to its customers. It will not generate any more revenue, so the more pilots will have to work out of the same pot of money coming in. i.e. less pay per pilot to ensure the company stays in business. How else could it be done?

 

[threegreen]

So if you exceed 8 hrs flying in your 24hr period for UNFORSEEN reasons... but are still within the duty period limits, you can go on as if nothing happened (i.e. get your 'regular rest', show up the next day at the same time).

Is this correct? Or do you need more rest because you exceed the maximum flight times?

 

[foshizzlepilot]

My experience has always been that most 135 operators consistently violate these regs because most 135 companies require their crews to be on call 24/7. The FAA doesn't enforce these regs so whats a pilot to do? There wouldn't need to be a rewrite of the regs if the feds just did their job. How many feds do you think read this board? If we could get their attention maybe they would start enforcing these rules instead of turning a blind eye to whats going on in this part of the industry. Just an idea.

Fo

 

[Lostdog65]

Asquared...nope...didn't disagree with anything you wrote...I just posted without finishing reading the thread!!! Then saw that you'd already answered the question....d'oh!

And thanks for having my back...nice long set of Regs back me up plus I have been 135 qualed since 1990!

Eric