135 Duty day

[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