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Propnose
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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
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
October 31, 1990 (#2)
INFORMATION: Interpretation of Rest Periods Required under Part 135
Acting Assistant Chief Counsel,
Regulations and Enforcement Division, AGC-200
Manager, NE-FSDO-03
This is in response to your memorandum of April 24, 1989, requesting an interpretation of Part 135 flight time limits and rest requirements. Your memorandum, which was originally sent to counsel for the New England region, was forwarded to us on May 4, 1989. We apologize for the delay in responding to your inquiry, and thank you for your patience.
In your memorandum, you state that there are companies in your region which hold more than one type of Federal Aviation Administration (FAA) certificate. For example, the same company may hold an air carrier certificate, operate flight schools under Parts 61 and 141 of the Federal Aviation Regulations (FAR), and operate an executive flight department under Part 91. You also tell us that in many cases, the same pilots are used by the company for all their different flying functions.
Question #1
Your first question concerns paragraph (d) of Section 135.267, which provides as follows:
"Each assignment under paragraph (b) must provide for at least 10 consecutive hours of rest during the 24-hour period that precedes the planned completion time of the assignment."
You ask whether a pilot for a company holding more than one type of certificate can fly company people under Part 91, flight instruct for the same company under Parts 61 and 141, and then count these types of flying time as rest within the meaning of paragraph (d) of Section 135.267.
Answer
The answer is no. A rest period cannot be infringed upon by the performance of any duty for the certificate holder.
For purposes of the Part 135 rest requirements, time spent engaging in such activities as flying company people under Part 1 and acting as flight instructor under Parts 61 and 141 would be considered "other commercial flying."
"Other commercial flying" means any nonmilitary flying as a required crewmember, other than in air transportation, for which the crewmember is paid for his or her services. The general rule regarding rest requirements is that if the other commercial flying is assigned by the certificate holder, it may not be conducted during a required rest period.
In the question you have presented to us, the same company or organization which is the Part 135 certificate holder is also assigning the other commercial flying. Although it may be wearing a different hat at the time of the assignment - that is, that of operator under Parts 61, 91, or 141 - it is still the pilot's employer in Part 135 operations.
We cannot accept the argument that the company is not acting as a Part 135 certificate holder when it assigns the pilot the other commercial flying time. To do so would be to permit the rest requirements of the FAR to be subverted. As you know, the rest requirements have an important safety purpose. They are intended to eliminate fatigue, and all the danger fatigue causes, as a factor in air transportation.
Question #2
Your second question, which also involves paragraph (d) of Section 135.267, is whether office functions associated with the Part 61 or Part 141 flight school or the Part 91 executive flight department can be assigned to a pilot by the company holding various certificates during rest periods required by Section 135.267(d).
Answer
The answer, which can be found in Section 135.263(b), is no. Section 135.263(b) contains rules which apply to all certificate holders, and provides as follows:
"No certificate holder may assign any flight crewmember to ANY duty with the certificate holder during any required rest period." (Emphasis added.)
Section 135.263(b)'s reference to duty is all-inclusive. By the plain terms of the regulation, a rest period cannot be infringed upon by the performance of any duty for the certificate holder, including office duty.
Question #3
Your third and final question concerns paragraph (f) of 135.267. Paragraph (f) provides as follows:
"The certificate holder must provide each flight crewmember at least 13 rest periods of at least 24 consecutive hours each in each calendar quarter."
You ask whether the company which is the certificate holder can assign office duties associated with the flight school or the executive flight department during the required rest periods.
As stated above, Section 135.263(b) provides that:
"No certificate holder may assign any flight crewmember to ANY duty with the certificate holder during any required rest period." (Emphasis added.)
Once again, since this provision's reference to duty is all-inclusive, a rest period cannot be infringed upon by the performance of any type of duty for the certificate holder, including office duty.
This interpretation has been coordinated with the Air Transportation Division of the Flight Standards Service at FAA Headquarters. We hope that it has satisfactorily answered your inquiry.
/s/
Donald P. Byrne
INFORMATION: Interpretation of Rest Periods Required under Part 135
Acting Assistant Chief Counsel,
Regulations and Enforcement Division, AGC-200
Manager, NE-FSDO-03
This is in response to your memorandum of April 24, 1989, requesting an interpretation of Part 135 flight time limits and rest requirements. Your memorandum, which was originally sent to counsel for the New England region, was forwarded to us on May 4, 1989. We apologize for the delay in responding to your inquiry, and thank you for your patience.
In your memorandum, you state that there are companies in your region which hold more than one type of Federal Aviation Administration (FAA) certificate. For example, the same company may hold an air carrier certificate, operate flight schools under Parts 61 and 141 of the Federal Aviation Regulations (FAR), and operate an executive flight department under Part 91. You also tell us that in many cases, the same pilots are used by the company for all their different flying functions.
Question #1
Your first question concerns paragraph (d) of Section 135.267, which provides as follows:
"Each assignment under paragraph (b) must provide for at least 10 consecutive hours of rest during the 24-hour period that precedes the planned completion time of the assignment."
You ask whether a pilot for a company holding more than one type of certificate can fly company people under Part 91, flight instruct for the same company under Parts 61 and 141, and then count these types of flying time as rest within the meaning of paragraph (d) of Section 135.267.
Answer
The answer is no. A rest period cannot be infringed upon by the performance of any duty for the certificate holder.
For purposes of the Part 135 rest requirements, time spent engaging in such activities as flying company people under Part 1 and acting as flight instructor under Parts 61 and 141 would be considered "other commercial flying."
"Other commercial flying" means any nonmilitary flying as a required crewmember, other than in air transportation, for which the crewmember is paid for his or her services. The general rule regarding rest requirements is that if the other commercial flying is assigned by the certificate holder, it may not be conducted during a required rest period.
In the question you have presented to us, the same company or organization which is the Part 135 certificate holder is also assigning the other commercial flying. Although it may be wearing a different hat at the time of the assignment - that is, that of operator under Parts 61, 91, or 141 - it is still the pilot's employer in Part 135 operations.
We cannot accept the argument that the company is not acting as a Part 135 certificate holder when it assigns the pilot the other commercial flying time. To do so would be to permit the rest requirements of the FAR to be subverted. As you know, the rest requirements have an important safety purpose. They are intended to eliminate fatigue, and all the danger fatigue causes, as a factor in air transportation.
Question #2
Your second question, which also involves paragraph (d) of Section 135.267, is whether office functions associated with the Part 61 or Part 141 flight school or the Part 91 executive flight department can be assigned to a pilot by the company holding various certificates during rest periods required by Section 135.267(d).
Answer
The answer, which can be found in Section 135.263(b), is no. Section 135.263(b) contains rules which apply to all certificate holders, and provides as follows:
"No certificate holder may assign any flight crewmember to ANY duty with the certificate holder during any required rest period." (Emphasis added.)
Section 135.263(b)'s reference to duty is all-inclusive. By the plain terms of the regulation, a rest period cannot be infringed upon by the performance of any duty for the certificate holder, including office duty.
Question #3
Your third and final question concerns paragraph (f) of 135.267. Paragraph (f) provides as follows:
"The certificate holder must provide each flight crewmember at least 13 rest periods of at least 24 consecutive hours each in each calendar quarter."
You ask whether the company which is the certificate holder can assign office duties associated with the flight school or the executive flight department during the required rest periods.
As stated above, Section 135.263(b) provides that:
"No certificate holder may assign any flight crewmember to ANY duty with the certificate holder during any required rest period." (Emphasis added.)
Once again, since this provision's reference to duty is all-inclusive, a rest period cannot be infringed upon by the performance of any type of duty for the certificate holder, including office duty.
This interpretation has been coordinated with the Air Transportation Division of the Flight Standards Service at FAA Headquarters. We hope that it has satisfactorily answered your inquiry.
/s/
Donald P. Byrne
Tug Driver
I can't keep a girlfriend
- Joined
- Mar 27, 2003
- Posts
- 313
Sam,
Unfortunately, listening to me and listening to the FSDO will get you just about as far. Neither of us, collectively, can provide you with more than an opinion...something that carries no weight.
What I posted above comes from the FAA chief legal counsel, and that does carry weight, as it represents the official position of the FAA Administrator, and therefore the official policy of the FAA.
The FSDO can only offer you an opinion, and that opinion is not defensible...if the FSDO tells you something and it's wrong, you can't go back later during enforcement proceedings and say that the FSDO told you...it won't help you.
ASA puts out a disc by Summit Publications that contains all the FAA pubs on one disc, and more...it's about eighty bucks, and it will have all your legal interps, AC's, everything. It's the Pro Pilot CD, and it's worth getting.
Unfortunately, listening to me and listening to the FSDO will get you just about as far. Neither of us, collectively, can provide you with more than an opinion...something that carries no weight.
What I posted above comes from the FAA chief legal counsel, and that does carry weight, as it represents the official position of the FAA Administrator, and therefore the official policy of the FAA.
The FSDO can only offer you an opinion, and that opinion is not defensible...if the FSDO tells you something and it's wrong, you can't go back later during enforcement proceedings and say that the FSDO told you...it won't help you.
ASA puts out a disc by Summit Publications that contains all the FAA pubs on one disc, and more...it's about eighty bucks, and it will have all your legal interps, AC's, everything. It's the Pro Pilot CD, and it's worth getting.
Sam Snead
Roger, Roger.
- Joined
- Aug 8, 2005
- Posts
- 151
avbug said:
avbug,
I tend to read your posts and you bring stuff to light that's good for an aviator to know.
In my opinion, your opinion is better than the FSDOs opinion. And since they are now on my (*&(*&)# list, the forums.flightinfo opinion, often yours, is what I'm going with.
Now hopefully I don't get in trouble so I have to delve more deeply into Counsel opinions, than is available on forums.flightinfo.
Flightinfo is a chamber in my church. I can feel the love all around!
Ahem....
If you really want to get serious about regulation discussions, Doc's FAR Forum at propilot.com is the place to go. "Doc" has dedicated a great deal of time that forum and it's far and away light years beyond any other forum on the topic. I used to participate there as a study motivator, but it was too much to keep up. I have to wonder how Doc does it, sometimes.
There's a search feature available, and you can get some good, serious answers on any subject related to flying regulation you can possibly imagine or conjure up.
Incidentally, the prop pilot disc noted earlier is the same one the FAA inspectors at your local FSDO are probably using...I know a lot that do.
Good luck!
There's a search feature available, and you can get some good, serious answers on any subject related to flying regulation you can possibly imagine or conjure up.
Incidentally, the prop pilot disc noted earlier is the same one the FAA inspectors at your local FSDO are probably using...I know a lot that do.
Good luck!
aussiefly
Well-known member
- Joined
- Jan 6, 2006
- Posts
- 384
Hey Avbug,
Is that opinion that was provided by the Chief Counsel legally binding upon the FAA?
And has the precident been tested in court as to aircrew depending upon the legal weight of an written opinion tendered by the FSDO as a representative of the FAA?
I wonder because out here in Australia the court would likely rule that an official communication (in writing) from CASA (our FAA) would likely be considered to be a binding ruling. And I was sort of wondering aloud if that would operate similarly in a US jurisdiction.
Anyway enough legal musings
Is that opinion that was provided by the Chief Counsel legally binding upon the FAA?
And has the precident been tested in court as to aircrew depending upon the legal weight of an written opinion tendered by the FSDO as a representative of the FAA?
I wonder because out here in Australia the court would likely rule that an official communication (in writing) from CASA (our FAA) would likely be considered to be a binding ruling. And I was sort of wondering aloud if that would operate similarly in a US jurisdiction.
Anyway enough legal musings
Aussie,
In the US, it works a little differently. First, when the FAA takes enforcement action, you're guilty until proven innocent. You don't have the opportunity of fighting to avoid enforcement action, only to appeal it. The FAA does the enforcing, and it's the FAA that sets the rules and regulation, and issues the pilot certificate. The FAA Chief Legal Counsel speaks on behalf of the FAA Administrator, who is the person responsible for all FAA action and policy. In other words, the voice of the FAA.
The FAA Chief Legal Counsel interpretation or opinion is the official policy of the FAA, and represents the manner in which the regulation will be applied. When a legal interpretation is issued, the FAA has spoken, collectively, with the authority of the Administrator (the person appointed through an Act of Congress to promote and regulate aviation in the United States), through the Chief Legal Counsel (or representatives). In many cases the Regional Legal Counsel also issues interpretations of the regulation which may be used.
Yes, the statements are defensible in court. In the US, FAA enforcement matters are handled in Administrative court, which is different than criminal or civil court. The FAA holds most of the cards, and has the ability to interpret the regulation during the court action or while the matter is being considered...because it's FAA regulation. The Administrative Law Judge (ALJ) isn't there to determine right or wrong, but only compliance with the regulation.
The best effort for an airman is to ensure understanding of the regulation before enforcement action takes place, and a tool to do this is the Chief Counsel Legal interpretations...these spell out the regulation as it is and will be applied. This information may be considered correct and has authority, whereas statements at the local Flight Standards District Office do not.
In the US, it works a little differently. First, when the FAA takes enforcement action, you're guilty until proven innocent. You don't have the opportunity of fighting to avoid enforcement action, only to appeal it. The FAA does the enforcing, and it's the FAA that sets the rules and regulation, and issues the pilot certificate. The FAA Chief Legal Counsel speaks on behalf of the FAA Administrator, who is the person responsible for all FAA action and policy. In other words, the voice of the FAA.
The FAA Chief Legal Counsel interpretation or opinion is the official policy of the FAA, and represents the manner in which the regulation will be applied. When a legal interpretation is issued, the FAA has spoken, collectively, with the authority of the Administrator (the person appointed through an Act of Congress to promote and regulate aviation in the United States), through the Chief Legal Counsel (or representatives). In many cases the Regional Legal Counsel also issues interpretations of the regulation which may be used.
Yes, the statements are defensible in court. In the US, FAA enforcement matters are handled in Administrative court, which is different than criminal or civil court. The FAA holds most of the cards, and has the ability to interpret the regulation during the court action or while the matter is being considered...because it's FAA regulation. The Administrative Law Judge (ALJ) isn't there to determine right or wrong, but only compliance with the regulation.
The best effort for an airman is to ensure understanding of the regulation before enforcement action takes place, and a tool to do this is the Chief Counsel Legal interpretations...these spell out the regulation as it is and will be applied. This information may be considered correct and has authority, whereas statements at the local Flight Standards District Office do not.
aussiefly
Well-known member
- Joined
- Jan 6, 2006
- Posts
- 384
wow thats pretty different to how our legal system works ( we are still fairly old school under really strict english common law). Our Administrative Appeals Tribunal hears any intial federal jurisdiction matters (im most cases its the first appelate jurisdiction). And they hae the ability to interpret the legal intention of the regulation.
Generally the AAT is quite arbitrary but after that its to the next court level and then it comes down to an interprestaion of the act or regulation which the issuing body doesnt get the opportunity to interpret on behalf of the court.
What that big mouthfull really means is that CASA is not judge, jury and executioner rolled up into one. But it sure sounds like the FAA holds all the cards in these cases and are really fulfilling the courts legal role in interpreting points of law. It sort of goes against standard law practice and forces the court into more of a point of fact role.
Rather than does the REG apply to the airmans violation it will initially be ruling on weahter a violation against the reg or act occured and what the interpretaion of such is. But in the US it sounds like the FAA determines a breach and if you appeal the court is more making a decision on points of fact.
Clear as mud
Cheers
p.s thanks for the info. interesting stuff that i havent thought about since law school....no im not practicing law at all
Generally the AAT is quite arbitrary but after that its to the next court level and then it comes down to an interprestaion of the act or regulation which the issuing body doesnt get the opportunity to interpret on behalf of the court.
What that big mouthfull really means is that CASA is not judge, jury and executioner rolled up into one. But it sure sounds like the FAA holds all the cards in these cases and are really fulfilling the courts legal role in interpreting points of law. It sort of goes against standard law practice and forces the court into more of a point of fact role.
Rather than does the REG apply to the airmans violation it will initially be ruling on weahter a violation against the reg or act occured and what the interpretaion of such is. But in the US it sounds like the FAA determines a breach and if you appeal the court is more making a decision on points of fact.
Clear as mud
Cheers
p.s thanks for the info. interesting stuff that i havent thought about since law school....no im not practicing law at all
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