135 dutytimes

[kingairyahoo]

we need to combine these two threads...

http://forums.flightinfo.com/showthread.php?t=80241&page=3

 

[gunfyter]

Excellent Posts as usual AVBUG.

Do you have a copy of the Whitlow Letter? I do but its PDF and cannot attatch to this board.

Please do me a favor and give your thoughts in light of the below:

http://pacer.cadc.uscourts.gov/commo...5/01-1027a.txt

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2002 Decided May 31, 2002
No. 01-1027
Air Transport Association of America, Inc.,
Petitioner
v.
Federal Aviation Administration,
Respondent
Air Line Pilots Association, International, et al.,
Intervenors
No. 01-1303
Air Transport Association of America,
Petitioner
v.
Federal Aviation Administration,
Respondent
No. 01-1306
Regional Airline Association,
Petitioner
v.
Federal Aviation Administration,
Respondent​

1 The flight time limitation rules applicable to "major scheduled
air carriers" and "other airlines operating large transport category
airplanes" are contained in Part 121 of the FAR. The flight time
limitation rules applicable to scheduled air carriers operating air-
planes of 30 or fewer seats and air taxi operations are contained in
Part 135 of the FAR. The substance of the rules in Parts 121 and
135 is essentially the same and the rules are likewise interpreted.

...zip...

("If a flight crewmember does not receive the
required number of hours of rest, the operator and the flight
crewmember are in violation of the regulation").

...zip...

5 If the flight is away from the gate but not yet in the air, the
flight may not take off. As a matter of enforcement policy, the
FAA will not charge a violation of the rest requirements if a delay
that first becomes known after the flight is in the air disrupts the
scheduled flight time, provided the required minimum reduced rest and the compensatory rest occur at the completion of that flight segment.
​

Further:

ATA contends that the Whitlow Letter, by requiring
the recalculation of a previously computed rest period, is
inconsistent with both the text and the purpose of FAR
121.471. ATA maintains that the phrase "scheduled comple-
tion of any flight segment" in subsection (b) means that
compliance with FAR 121.471 turns solely on the legality of
the originally established flight schedule irrespective of any
unexpected flight delay that may require re-scheduling. See
ATA Blue Br. at 25. The phrase, ATA asserts, cannot be
squared with the Whitlow Letter, which requires scheduled
flight time to take into account "actual expected flight time."
See Whitlow Letter at 4.






​

The ATA is arguing against FAA the basic "Good to start... good to finish" rhetoric that some managements argue.





But the FAA and the Courts disagree.

The FAA responds that the phrase "scheduled completion
of any flight segment" can reasonably be understood to
include a re-scheduled flight time based on actual flight
conditions. To be sure, "scheduled completion" can be con-
strued narrowly to refer only to the originally scheduled
flight completion time. The point, however, is that the FAA's
more expansive interpretation is not unreasonable. A re-
scheduled completion of a flight segment based on flight
conditions existing in fact is nonetheless a "scheduled" com-
pletion. Nothing in the text of FAR 121.471 or in the
ordinary usage of the word "scheduled"8 dictates that the
timetable of a particular flight segment can be determined
only when the schedule is originally created regardless of
adjustments made necessary by then-current conditions.



More significantly, in Interpretation 1998-7, the
FAA declared that both the carrier and its crewmembers
would violate FAR 121.471 if they knew "prior to departure"
that due to a ground hold for weather the "scheduled arrival
time of the last flight segment would force the crew to begin
its compensatory rest period later than 24 hours after the
commencement of the reduced rest period." Interpretation
1998-7. The FAA's conclusion was based on the "actual
expected arrival time" calculated prior to departure and is
therefore consistent with its approach in the Whitlow Letter


​

 

[charter dog]

It uses phrases like "planned completion time of the assignment", etc and describes allowances for going over FLIGHT time, but not rest/duty time. I think many attribute the allowances for exceeding planned flight time to the duty as well.

cvsfly: In the above statement, it appears that you have some doubt as to the legality of extending a duty period beyond 14 hours due to CBTCOTO, or that the rules only allow for exceedence of planned flight time. This does not appear to be the case, as indicated in the excerpt from the FAA legal council opinion addressed to Mr. Ross posted below. Take particular note of the fact that late pax or cargo are specifically included as CBTCOTO. Also, this applies only to crews who do not have a regularily assigned duty period of 14 hours maximum and consequently fall under the provisions of 135.267(b) and 135.263(d) As such, operation beyond 14 hours of duty IS allowable under these rules according to this opinion, provided that the original planning was realistic and that crew fatigue issues during the proposed operation would not represent "careless or wreckless operation". (91.13)

Personally, I favor your approach to the problem and use it myself. My point is simply that when you call off the flight due to late pax, you are doing it for safety reasons, not because crew duty time regulations require it! According to this FAA legal interpretation, they don't, for 135.267(b) crews. It is your call if you want to proceed beyond 14 hours for the allowable reasons. As is calling it off for safety reasons. It actually seems to me like a small semantic point, unless you wish to continue. In that case, having reallistically planned for the completion of the flight within a 14 hour duty period, relying on all the best information available, you have the option of continuing beyond 14 hours if CBTCOTO require it. You also have the option of discontinuing the flight if you believe it to be in the interest of safety.

The very bottom line is that it is up to you to decide whether to proceed, under the FAA legal interpretation of the rules. As usual, this means that should anything untoward occur, YOU were responsible! We are all allowed to set any standard which is more conservative than the rules allow, and I applaud you for doing so. Personally, I think this interpretion stinks because it is so prone to abuse by operators and pax. I would like to see a "harder" allowable duty period limitation in the rules. Until this happens, we'll just have to throw the "safety card" on the table whenever we find it necessary to do so. Strict interpretation of the rules requires it.

Question 1: Can the flightcrew depart LAX for MSP, knowing they will arrive at MSP 14.5 hours after coming on duty? If so, how many hours of rest will be required before accepting another assignment?

Answer: The answer to this question depends on whether the flightcrew has a regularly assigned duty day of no more than 14 hours, bringing it within the scope of FAR 135.267(c). If the flightcrew does not have a regularly assigned duty period of no more than 14 hours, then FAR 135.267(b) applies.

Assuming FAR 135.267(b) applies, the answer to the first part of your question is yes. When a flightcrew's assigned schedule is delayed for reasons beyond the control of the crew and operator, FAR 135.263(d) applies and a flightcrew may complete their scheduled assignment, even though flightcrew duty time will exceed 14 hours. This assumes, of course, that the original planning was realistic.

The FAA has previously concluded that circumstances beyond the control of the certificate holder and crew include delays caused by late passenger or cargo arrivals, maintenance difficulties, and adverse weather. In your hypothetical, the delay was caused by late passenger arrivals. As such, the delay is a circumstance beyond the control of the certificate holder and the flightcrew. The flightcrew therefore may complete their assigned schedule, continuing on not only from LAX to MSP but also from MSP to MSN, even though the flightcrew know they will exceed the 14 hour maximum duty period.

Avbug: Thanks again!

Of course there are circumstances when it is our duty to limit operations to less than what the rules may allow from time to time. I have done so whenever I thought it was prudent and will no doubt have to do so again in the future. While I wish to give my employer the most "bang for their buck", and to be well regarded as a "good" pilot for the company, I realize that if anything goes wrong, I am responsible! And the company, feds, insurance companies and damaged parties will all duck and cover, leaving me holding the bag. We're anly as "good" as our last trip. This is understood!

This discussion has been constructive in that it really more about responsibility than it is about the letter of the law. It is agreed that using the letter of the law to either "push" the limits or to rationalize a decision made in error is not an effective defence of that decision. Limiting operations to well short of what the current interpretation of the rules may allow might often be required in the interest of safety. If we can justify our actions with solid logic and accurate application of the rules, any employer who does not support our decisions is nobody we want to work for. Mutual trust and confidence is required between pilot and company for this to work effectively. I am happy to be able to say that relationship with my current employer provides this mutual trust to higher than average degree.

I am ever mindful of the fact that fatigue is a fact of life in this line of work and that it affects judgement in ways that may be difficult to quantify or address. In the end, where rules do not directly adddress a situation, judgement is really all we have left. Improving the rules would be a positive step in the right direction, but even the best written rules will always require judgement to apply them correctly. No matter what the rules may allow, we must still decide whether we can do the trip safely. Making these decisions while tired is just something we have to live with if we are going to stay in the business.

So we'd better have a pretty clearly defined sense of priorities! And plenty of well justified confidence in our own abilities to fly an airplane and make good decisions, even when not at our best. With regard to the confidence placed in you by others, it was best said by one of my first captains when I was new to charter flying:

"Nobody cares how good you are on your best day. They are more interested in how you will do on your worst!"

Platitudes regarding "fitness to fly" aside, we all fly when we are not at our best. Anyone who says otherwise is either lying, kidding themselves or just squawking the party line. Maybe all three. Where each of us draws the line is a personal decision which we know affects others. We must all try to make the best choices we can. It's a given that defined rules and policies must be adhered to. Beyond that, much is still left to our discretion. If something bad happens, that discretionary decision making will be questioned. We must do our very best to see that nobody ever has that opportunuty, while still seeking to provide enough utility to our employers to justify our employment.

Company culture can have a large influence on how we see the priorities. I know from having worked for operators that had accidents that they will happily drive on and continue to be a successful enterprise following a wreck. They may even show a profit! The crews and pax will not. Something to remember...

Best,

 

[Nolife]

Very informative. I have one more question. I've been debating some guys over this for a few weeks now.

Hypothetical scenario: On duty 0400. Fly Part 91 to pick up pax. Fly pax to destination and standby all day then return pax to pick up airport and arrive there at 1800. That's 14 hrs of duty and we are now facing a Part 91 leg home. Now the company wants you to fly to another airport to pick up some comat and then fly back to the home base. You'll arrive there at 2100. That's 3 hrs over 14 hrs duty. The flight time is well under 8 hrs.

I think you can't accept this as it will put you over 14 hrs of duty even though the last legs are flown Part 91. The fact that there was Part 135 flying in the middle pollutes the whole day so to speak. You are now restricted to 14 hrs duty or else you will violate the requirement for 10 hrs rest in the preceding 24 hrs prior to the completion of the assignment.

Anyone have any thoughts or know where I can find a legal opinion.

 

[charter dog]

Anyone have any thoughts or know where I can find a legal opinion.

Wait for Avbug. He's got 'em all!

Short answer: The 135 day begins when you report for assigned duties. (and your rest period ends) 135 flight rules must be followed when you are carrying pax or property for hire. (When the company is under hire, not you personally) The 135 rest and flight/duty time rules are only applicable during this time. The 135 ends when the pax or property are off the plane. Anything you do after this is not part 135. Flying those final two legs is "commercial flying" for the purposes of your 135 rest, flight and duty for subsequent 135 assignments. Your rest does not begin until you are free from all company duties. You may elect to fly those final two legs unless doing so would be "careless or wreckless" as in 91.13. If you are to fly 135 the next day, remember to include all commercial flying time in your 24 hour rolling lookback and be sure to find the required rest period within the last 24 hours. You are not on rest unless free from all campany duties.

Gotta go fly, I'll check back later.

Best,

 

[pilotyip]

Nolife that flight with company comat is legal, it is all Part 91 tail end ferry, there is no prduct or person on board resulting in revenue for your company. It will have to be counted a commercial flying. Now if you are too tired to do the trip, you call fatique.

 

[Vastly Underemp]

I'll stick my toe in the water on this one.....

Even though the tail-end-charlie legs MAY be 91 (some fsdos interpret return to base from a 135 as a 135 leg, even if empty), the company changed the schedule by adding the extra legs on the end of a previously scheduled day. That changes everything. My interpretation would be that they are 91 legs, but because they were tagged on at the end of a full day the pilots would get hung for bad judgement if there's any bent metal involved. Remember, the "legal to start, legal to finish" axiom that everyone loves is only applicable if your assigned "schedule" for the day does not change. That can be published schedule for the scheduled operators or company assignment at the beginning of your "duty day" for the charter guys.

 

[cvsfly]

cvsfly: In the above statement, it appears that you have some doubt as to the legality of extending a duty period beyond 14 hours due to CBTCOTO, or that the rules only allow for exceedence of planned flight time. This does not appear to be the case, as indicated in the excerpt from the FAA legal council opinion addressed to Mr. Ross posted below. Take particular note of the fact that late pax or cargo are specifically included as CBTCOTO. Also, this applies only to crews who do not have a regularily assigned duty period of 14 hours maximum and consequently fall under the provisions of 135.267(b) and 135.263(d) As such, operation beyond 14 hours of duty IS allowable under these rules according to this opinion, provided that the original planning was realistic and that crew fatigue issues during the proposed operation would not represent "careless or wreckless operation". (91.13)

Personally, I favor your approach to the problem and use it myself. My point is simply that when you call off the flight due to late pax, you are doing it for safety reasons, not because crew duty time regulations require it! According to this FAA legal interpretation, they don't, for 135.267(b) crews. It is your call if you want to proceed beyond 14 hours for the allowable reasons. As is calling it off for safety reasons. It actually seems to me like a small semantic point, unless you wish to continue. In that case, having reallistically planned for the completion of the flight within a 14 hour duty period, relying on all the best information available, you have the option of continuing beyond 14 hours if CBTCOTO require it. You also have the option of discontinuing the flight if you believe it to be in the interest of safety.

The very bottom line is that it is up to you to decide whether to proceed, under the FAA legal interpretation of the rules. As usual, this means that should anything untoward occur, YOU were responsible! We are all allowed to set any standard which is more conservative than the rules allow, and I applaud you for doing so. Personally, I think this interpretion stinks because it is so prone to abuse by operators and pax. I would like to see a "harder" allowable duty period limitation in the rules. Until this happens, we'll just have to throw the "safety card" on the table whenever we find it necessary to do so. Strict interpretation of the rules requires it.

Best,

cvsfly: In the above statement, it appears that you have some doubt as to the legality of extending a duty period beyond 14 hours due to CBTCOTO, or that the rules only allow for exceedence of planned flight time. This does not appear to be the case, as indicated in the excerpt from the FAA legal council opinion addressed to Mr. Ross posted below. Take particular note of the fact that late pax or cargo are specifically included as CBTCOTO. Also, this applies only to crews who do not have a regularily assigned duty period of 14 hours maximum and consequently fall under the provisions of 135.267(b) and 135.263(d) As such, operation beyond 14 hours of duty IS allowable under these rules according to this opinion, provided that the original planning was realistic and that crew fatigue issues during the proposed operation would not represent "careless or wreckless operation". (91.13)

Personally, I favor your approach to the problem and use it myself. My point is simply that when you call off the flight due to late pax, you are doing it for safety reasons, not because crew duty time regulations require it! According to this FAA legal interpretation, they don't, for 135.267(b) crews. It is your call if you want to proceed beyond 14 hours for the allowable reasons. As is calling it off for safety reasons. It actually seems to me like a small semantic point, unless you wish to continue. In that case, having reallistically planned for the completion of the flight within a 14 hour duty period, relying on all the best information available, you have the option of continuing beyond 14 hours if CBTCOTO require it. You also have the option of discontinuing the flight if you believe it to be in the interest of safety.

The very bottom line is that it is up to you to decide whether to proceed, under the FAA legal interpretation of the rules. As usual, this means that should anything untoward occur, YOU were responsible! We are all allowed to set any standard which is more conservative than the rules allow, and I applaud you for doing so. Personally, I think this interpretion stinks because it is so prone to abuse by operators and pax. I would like to see a "harder" allowable duty period limitation in the rules. Until this happens, we'll just have to throw the "safety card" on the table whenever we find it necessary to do so. Strict interpretation of the rules requires it...................

I do. I have not read the FAA Legal opinions and don't exactly know where they can be accessed. Not really interested in spending the time. I do have the regulations as they are (poorly written). We have never come close to exceeding the flight time limitations and I'm not sure if we are ever considered having a "regulary assigned duty period of .. 14 hrs." in our particular operation. So the only sections I really need to consider are 135.267 a,b,d & f. There are sections that descibe provisions for going over flight time, but nowhere do I interpret where any leeway is given for rest requirements - 10 hr in any 24 hr period = 14 duty day. I may not loose sleep (pun intended) if at the end of the last leg that has a legal "planned completion time" I encouter a big reroute for weather or even an ATC ground hold that will put me over. I'll argue the point with the FSDO if needed and accept the consequences. I will not extend my neck for the chopping block for inconsiderate passengers that choose to be lax in their ground transportation planning. If the FAA includes the wording some suggest from these legal opinions in the regulations - "duty time may be exceeded by x number of hours due to circumstances beyond the control of the operator (such as adverse weather, late passengers, late cargo, etc" I'll be happy. I would make the necessary allowances for the passenger in the interest of good business and also consider my own limitations for my individual rest requirements (in consideration of 91.13). Where do you draw the line? How long is too long for CBTCOTO?

 

[cvsfly]

We also will consider a Part 91 leg home to base that puts us over 14 hrs. OK if the crew agrees. But we consider it elective. If the company demands it due to repositioning needs - say for another 135 flight the next day - I deny it and request a rescheduling. But then again, we only have 2 pilots, 1 airplane, I'm in charge, and I like my sleep. Our company isn't soley dependant on charter and how can they be with such a limited operation.

 

[kingairyahoo]

...and if we extend past 14 for a "tail end ferry" we insist on showing 10 hours rest after the end of that "tail end ferry" before the next duty day starts.

in other words if we had an early flight the next morning...guess what, we dont take it

 

[charter dog]

Where do you draw the line? How long is too long for CBTCOTO?

That's right!

With no absolute definition to rely upon, it is up to you to decide. I suggest that we should make that decision on the basis of safety. Where the rules may allow it to be done according to FAA legal council, the authority to do so relies upon the safety judgement of the crew and the operator. If something happens, you will be left to defend your decision to proceed with the trip. If fatigue is found to be a causal factor in the incident, accident or other occurance, you may be found to have proceeded in violation of 91.13 even though not in violation of crew duty, or any other regulations. This could be the case at ANY time during any other perfectly rules compliant duty assignment. Some days, it might be just as safe to proceed with the last flight of the day as it was for the first. (maybe more so!) It could be the case that you are in better shape to fly after having rested all day while not on "official" rest at your "sit and wait" stop. With the rule being so ill-defined, I have reached the conclusion that, for me personally, my decision to proceed or not to proceed will be based purely upon my judgement of whether it is safe to do so. I will not engage in any debate of what the rules allow or don't allow with pax, dispatch or company management as a defense of my safety decisions. Everyone must agree in order to go. Any dissent which cannot be resolved reasonably on the part of anyone involved means the plane stays parked, period. I will be happy to discuss the decision at a later time. At my company, it has been made clear by the CP that this is how it is to be. The duty rule is not the proper defense for a no-go decision. Safety is! The rules allow us to go only if we do not have a valid safety concern. How much is too much? Are we in a safe position to make such decisions when we might be fatigued? Well, I can't tell you. I just have to trust my own judgement of my fitness to fly by doing the best evaluation I can of my own, and my fellow crew's state of readyness to accept the assignment. You must decide for yourself in the absence of any better defined limit. I am looking forward to reviewing the new rules when or IF they are finally released. It oughta be interesting!

Best,

 

[livin'thesim]

The new interp that they are discussing is proprosing that tailend ferry be counted the same as if it was revenue. This could get very interesting. There is also some talk about treating all time assigned by a 135 operator as though it was revenue flight. I'm curious how this will all shake out.

 

[Nolife]

The rule change would be welcome in my book. The problem with calling safety as the reason not to fly a trip is that management can easily second-guess you. Everybody is very safety conscience until safety costs money. Cause the company to down a few trips because you were tired and couldn't or wouldn't ferry an airplane after a max duty day and you might safely be out of a job.

It'd be great if the FAR's would be more concrete and give us pilots something solid to point to as the reason for not pressing on past the reasonable point of fatigue.

The first 135 cargo company I worked for considered any duty assignment where you flew any part 135 to be all 135 and thus only 14 hrs long. That's where I get the one drop pollutes the barrel analogy. Fly 1 leg 135 and you're restricted to 14 hrs. Makes sense to me but I can't seem to find any legal opinions regarding this. Any help finding some would be greatly appreciated.

 

[pilotyip]

Nolife again all the talk is about 135. If the proposed 135 duty rules becomes too restrictive and now add a cost to do the same level of revenue generation, it would most likely impact pay. A change to 121 supplemental crew rest rules would actually give companies more flexibility in using their crews because of the ability to give duty breaks.

 

[Way2Broke]

Okay, here is a 135 duty time question. Is it legal to take a pilot off duty in the middle of their duty and then put them back on duty as long as the pilot gets the required rest at night.