Could this be legal under 135

[slowtation capt]

CREW DUTY/REST POLICY

Dispatch may attempt to contact crewmembers once they have received minimum required rest (defined as at least 10 hours uninterrupted rest or extended rest as defined by SOP) after their last assigned duty period, but before their expected duty-on time.

When doing so, the following procedure will apply:

Dispatch will only initiate contact after the crewmembers have received at least the minimum required rest. Crewmembers will ensure they are available for contact after receiving the minimum required rest. After required rest, the crewmember will also ensure the hotel phone and the Blackberry is turned on and not silenced. The crewmember is expected to answer either if called. If called from 0001 to 0600 local by dispatch, for an earlier than originally assigned trip, the crewmember's duty begins at time of contact. For calls after 0600 local, duty will begin at the scheduled show time.

 

[Grizz]

The moment you start being responsible to answer a phone or pager AND if answered have a duty to report to go fly then it is no longer rest.

Also duty begins when it begins..not at some arbitrary time. Following the rules you listed WILL get you violated if the FAA checks.

 

[gunfyter]

Actually, if you must be contactable BUT can say NO to the earlier duty... then it is legal.

 

[Fozzy]

ACTUALLY, you are WRONG!

If you are available for contact, you are NOT in rest. Period. Rest or Duty. So after your min rest (10 hrs) in that example, you are on duty and the clock is ticking. But hey with no Union to go to bat you are screwed. Or maybe you can call the Feds, but I am glad I am not you.

Rest or Duty, don't let them sell you the BS.

 

[luvu]

Gunfyter-not correct

the law says nothing about EARLIER duty. If they call you, and you have to answer the phone, and they give you any assignment and you have to take that assignment then you were not at rest for that entire period that you had to answer the phone. Griz, is basically correct except that the "assignment" doesn't have to be a "flight assignment." It is any "work assignment."

It is not limited to an EARLIER assignment either. The commonsense application of this ruling is that there can be no requirement by the company to have you answer the phone and call that time anything other than standby, which is not rest.

To repeat, the judges have pointed out that "the assignment" or "work" we are talking about is NOT limited to flying for the purposes of "at rest" considerations.

If you are told you "MUST ANSWER THE PHONE" during a certain period of time, then that in and of itself is a "WORK" assignment even if it isn't Flight and therefore can NOT be considered at rest.

Byrne explained that even though this Standby time couldn't be counted as rest, it also wasn't necessary to lump it in with "flight assignment" for the purposes of the 24 hour look back provisions.

It is this ruling that created three distinct categories of REST(no obligations whatsoever to company), STANDBY (NOT rest but not duty subject to 24 hour look back provision), and DUTY (flight assignment subject to look back)

 

[gunfyter]

I am NOT wrong

http://www.law.emory.edu/1circuit/aug99/99-1888.01a.html

In the duty-to-report scenario, a crewmember who is nominally off duty has a responsibility during the period to leave a contact number, to be fit to fly, to take any telephone calls or other communications notifying him of a flight assignment, and to report for that assignment in a reasonable time (e.g., two hours). In the duty-to-be-available scenario, the same is true but the crewmember has the option to accept or decline a flight assignment that is offered during this off-duty period. It is easy to see why such arrangements would be attractive to an air taxi carrier.



Under either scenario, a call to the crewmember followed by an accepted assignment would (at some stage) terminate any "rest" that might otherwise be accruing. The crewmember, to be eligible for the assignment, would have to have met the "ten hours rest" quota based on "rest" that had already occurred. But the FAA's position in its notice as to the duty-to-report scenario (the duty-to-be-available scenario is a different issue) is that even if no call were made during this nominal off-duty period, none of the period would count as rest because the generic responsibility to leave a number, take calls, and report if assigned would negate "rest" for the entire period.


​

 

[Ace-of-the-Base]

The moment you start being responsible to answer a phone or pager AND if answered have a duty to report to go fly then it is no longer rest.

Also duty begins when it begins..not at some arbitrary time. Following the rules you listed WILL get you violated if the FAA checks.

Grizz,

I've heard horor stories my whole career about pilots getting violated when busting a 135 reg. Have you ever heard of it actually happening to a specific pilot? In all of the reports that I have read, if the 135 company initiated the illegal operation, then they got the violation, if it was the pilot breaking a reg without being told to (or lead to), then he got the bust. I've worked with a lot of pilots over the past 35 years and have yet to hear a specific story of a pilot getting busted for something his company told him to do, which has lead me to believe that it is all just a fear thing. BTW, same thing with mechanics, alot of "you'll loose your licence" stories.

Thoughts?

Ace

 

[ProFracPilot]

While I certainly wouldn't bet MY certificate on it

I have been involved with 135 operations for 20 years, have been through RASIP and NASIP inspections, fought false allegations, and defended a few honest screw ups - both on the maintenance AND the flight operation side.

That said, I've NEVER seen the FAA take certificate action against a crewmember for a 135 infraction. If they busted a 91 reg, absolutely (can you say altitude bust??). The FAA takes the stance that if there was a deviation from a 135 regluation, it is most likely a SYSTEMIC problem, and the action is taken against the Air Carrier certificate holder.

My .02.

 

[luvu]

Gunfyter

"Under either scenario, a call to the crewmember followed by an accepted assignment would (at some stage) terminate any "rest" that might otherwise be accruing."


Okay, you have come out of ten hours rest and company wants you to start standing by the phone. This occurs at 7 Am. Shortly after 7 AM company calls and tells you that you don't have anything going on until 2pm but then you have near 14 hours schedule starting which puts you on duty until 4AM the next morning. You ACCEPT this assignment.

Having accepted the assignment you are no longer at REST. When you finish up at 4AM and look back 24 hours, you only find 3 hours of legal rest, and you could get busted.

This is how playing games with "duty to be available" rules runs afoul of the law.

There is REST, STANDBY, and DUTY (with look back previsions) and any blurring of the lines gets you in trouble. You can not count STANDBY as rest when you are looking back.

 

[gunfyter]

JEPPESSEN's THE FARS EXPLAINED has examples of crewmembers being violated for 135 infractions. Crew rest and flight time.

LUVU,

Right, you can't count standby as rest but while you are in REST you can agree to answer the phone. This is the duty to be available scenario. Its a scam but its how 135 operators get around this rest issue and the FAA is letting them.

Of course you can refuse the trip in this scenario but eventually you lose your job or do not get promoted. Or the compensation rules where you work make it highly unlikely you would pass up on a trip once you were "legal".

 

[Dep676]

Well you have your 10 hours rest right? They are not saying that they can call you before your 10 hours of rest. So if you get your rest and they call your duty starts when they call you correct? Not when they say. The problem is that nobody in CGF knows 135 stuff. They guy that did quit. The rest of the ying-yangs are just yes men anyway.

 

[luvu]

gunfyter

I think if we hammered out a scenario we would probably be in agreement on what the law says and the nature of the various "scams."

You posted, "you can't count standby as rest but while you are in REST you can agree to answer the phone." This is true with certain serious caveats. You "agreeing to answer phone" is very different than company imposing in it's SOP a duty to answer phone. Second, if you haven't completed 10 hours rest when they call and you do answer the phone,voluntarily, and you accept any assignment from them for any kind of "duty" then you have seriously limited the number of duty hours (if any) that you can work going forward, because of the 24 hour look back provision. This was rarely a problem for the casual 135 operators because the pilot was likely to have been in rest for much longer than 10 hours (often days) when he voluntarily answered the phone and voluntarily accepted the assignment. This isn't the case under most fractional situations.

This is why companies following the law NEVER interrupt 10 hour rest with phone call. It is also why as soon as the 10 hours of rest are up, and the pilot is obligated to answer the phone, they are considered to be on Standby and the clock is ticking as far as the 24 hour look back provision. They have to either use you or lose you in the next 14 hours (with various enumerated extensions) until you recharge your clock with another 10 hours assigned REST.

 

[CE750Driver]

Well you have your 10 hours rest right? They are not saying that they can call you before your 10 hours of rest. So if you get your rest and they call your duty starts when they call you correct? Not when they say. The problem is that nobody in CGF knows 135 stuff. They guy that did quit. The rest of the ying-yangs are just yes men anyway.

Wrong, if you were breifed for a 14 hour rest, under 135, you are under no obligation to pick up the phone. Even being under the obligation to pick up the phone is considered duty. So, by the memo you got, it looks to me like you cant do any 135 flights from 14 hours past your 10 hours of rest. Get it? Cause you being obliged to take calls or answer your blackberry starts you 135 clock.

 

[Flywrite]

How is it that some 135 operators have pilots on call 24/7 where they must answer a call anytime other than the ten hours immediately following a trip?

 

[gunfyter]

How is it that some 135 operators have pilots on call 24/7 where they must answer a call anytime other than the ten hours immediately following a trip?

they are BREAKING THE LAW. That's how...

Thats why I asked elsewhere.... "How long do you think the fractional operators who are the largest 135 operators in the world will wait until they sue the FAA to enforce the rest rules of 135 on the 135 charter operators who do not comply but are in competition."

50 135 charter companies sued the FAA and complained that 135 rest rules were not fair because fractionals did not have any such requirements.

Last, Aviators says that the FAA's position is unreasonable and unfair because no corresponding rest requirements exist for fractional ownership programs, which allegedly compete with air taxi carriers but are governed by Part 91 of the FAA's regulations, 14 C.F.R. 91 (2000). This argument has not been well developed in this court; and there may be substantive differences in operations that justify the FAA's decision to regulate the two kinds of programs differently. But the FAA would have some explaining to do if the two sets of operations are pertinently the same, especially if there is a competitive relationship between them. Cf. Town of Norwood v. New England Power Co., 202 F.3d 392, 402-03 (1st Cir.), petition for cert. filed, 68 U.S.L.W. 3756 (U.S. May 30, 2000) (No. 99-1914).

However, agencies are not normally required to solve all similar problems at one time. See Mobil Oil Exploration v. United Distrib. Co., 498 U.S. 211, 231 (1991). The FAA is currently reviewing its regulation of those fractional ownership programs in separate proceedings. Aviators is free to argue its case in those proceedings, and if unsuccessful, it may seek review of that agency action under the same statute that enabled review in this case, 49 U.S.C. ? 46110 (1994), or file a petition for rulemaking to modify the current regulation (14 C.F.R. ? 135.267(d) (2000)) and spell out then the disparate impact claim in greater detail, 5 U.S.C. ? 553(e) (1994).

Accordingly, we sustain the FAA as to the duty-to-report scenario and treat as unripe Aviators' claims regarding the duty-to-be-available scenario. With respect to the latter, Aviators is free to seek a formal declaratory ruling from the FAA and to present its policy arguments and evidence to the agency. See 5 U.S.C. ? 554(e) (1994). While the agency has discretion to refuse such a ruling, that refusal is reviewable for abuse of discretion, see Intercity Transp. Co. v. United States, 737 F.2d 103, 106-07 (D.C. Cir. 1984); cf. DeNovellis v. Shalala, 124 F.3d 298, 313 (1st Cir. 1997), and we think that a refusal to tell Aviators in advance whether the scenario constitutes "rest" would itself require a lot of explaining.

The petition for review is denied to the extent stated and otherwise dismissed as presenting an issue unripe for review at this time.

It is so ordered. http://www.law.emory.edu/1circuit/aug99/99-1888.01a.html

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[Flywrite]

they are BREAKING THE LAW. That's how...

​

That what I thought...

 

[gunfyter]

That what I thought...

yep... If standby and reserve could count as 135 rest.... Why did 50 charter companies sue the FAA (on this very issue) in Federal Court (and LOSE)?

Why are POI s and FSDO s looking the other way? that is the question.

 

[luvu]

I liked the very last part of the ruling

"we think that a refusal to tell Aviators in advance whether the scenario constitutes "rest" would itself require a lot of explaining."

The judges are telegraphing that if the FAA doesn't clarify its position on "duty to be available" position to the satisfaction of AVIATORS then the judges will be inclined in the future to rule that the FAA had abused its discretion.

The reason that AVIATORS didn't pursue clarification was because it would have only applied to PART 135 operators and it would have been clarification that eliminated all the supposed "grey" areas that they were accustomed to scaming.

Any clarification would have hurt them and would not have applied at all to Fractional operators under the previous part 91 rules.

Now most players are using part 135 for Passenger operations and nobody but exhausted pilots and their organizing committees has any motive to fight for either clarification or enforcement.

Professional pilots are getting organized and saying NO. It is not a lifestyle worth having, it is abusive, it is illegal, and ultimately it compromises safety.

Thanks for that link, Gunfyter, that was very helpful to discussion and it isn't one that is easy to find.

 

[gunfyter]

luvu,

You catch on fast. Very insightful analysis.

I like to compare the situation we have with Rest and Safety to the situation we had prior to 911 with SECURITY.

Government agencies ignored security concerns because the Industry (NATA) did not like it because it cost money and makes airline travel a hassle.

 

[gunfyter]

Part 135 rulemaking group tends to the tough issues

by John A. Pope

At present, the most that can be said about the FAA’s intention to have an Aviation Rulemaking Committee (ARC) assist in rewriting FAR Parts 135 and 125 is that it is a work in progress.

The first ARC was formed several years ago and dealt with developing FARs that would apply to fractional jet operations. After lengthy deliberations, the new FAR–Part 91 Subpart K–was promulgated and instituted.

The requirement for the current ARC was published in the Feb. 3, 2003, Federal Register for a comprehensive regulatory review of 14 CFR Parts 135 (which governs commuter and on-demand operations) and 125 (which governs the operation of airplanes that carry 20 or more passengers or have a payload of 6,000 pounds or more). The stated purpose of the ARC was to review and provide advice and recommendations to resolve current issues affecting this part of the industry, including:

• Enable new aircraft types and new technologies in air-transportation operations.

• Provide safety and applicability standards that reflect the current industry, industry trends and emerging technologies and operations.

• Address international harmonization and ICAO standards.

• Potentially rescind Part 125 from 14 CFR.

...

As dictated by the FAA, the ARC would be composed of members selected by the FAA representing aviation associations, industry operators, manufacturers, employee groups or unions, FAA and other government entities, and other aviation industry participants.

GAMA’s Bolen Chairs the ARC
The ARC was subsequently formed with Ed Bolen of the General Aviation Manufacturers Association (GAMA) as the chairman, and it has been meeting with some regularity. For the more obvious reason that any issue would be subject to change or modification before the final report, not much information as to specific issues has been leaked out. However, some participants have indicated that less contentious items have been resolved and draft language has been prepared, but that a number of difficult issues involving differences of opinion remain open. The next ARC meeting will be a four-day session this month that will probably be focused on changes to Part 125, something that the FAA wants to see tightened with more stringent safety requirements. The ARC expects to submit its recommendations to the FAA in November.

The National Air Transportation Association (NATA), which speaks for a large number of Part 135 on-demand operators, is represented on the ARC and is generally optimistic about the project since many of the current regulations are outdated, confusing and no longer necessary. NATA expects that the introduction of very light jets (such as the Eclipse 500 and Citation Mustang), large airships and other new technologies might change the industry, and suggests that any new regulations be able to accommodate all the newest advances.

NATA also seeks to ensure that the new regulations do not place undue regulatory or financial burdens on smaller Part 135 operators. The association’s specific concern is with the revision of on-demand flight, duty and rest regulations, and managing crew fatigue. NATA members participating on the ARC and members of its Air Charter Committee have been providing input to ensure that any changes have minimal impact.

On the other hand, NBAA is concerned about proposals to expand FAR 91.501(f) to include Part 125 airplanes and that any safety standards would apply only to those aircraft.

Some NBAA member companies set up an affiliate company whose sole purpose is to operate the company aircraft. The FAA’s view is that these operations are commercial and fall under Part 135; NBAA’s position is that these companies should be allowed to operate their aircraft under Part 91.

‘Job Well Done’
ARC participants laud the FAA’s Kathy Perfetti for a job well done, not only for keeping the committee focused on the task but in supporting the process and providing the necessary resources to accomplish the stated objectives.

Looking ahead as to when the FAA will issue the revised FARs takes gazing intently into one or more crystal balls. Assuming the ARC completes its work on time and submits its recommendations to the FAA would be a good bet. However, the ARC report will have to work its way through the various FAA offices for legality, clarity and coordination with their various divisions.

Having done that, the FAA would then have to issue a notice of proposed rulemaking (NPRM) in the Federal Register and request comments from interested parties. Those comments would have to be evaluated, with the possibility that some changes to the original proposal could be made.

This route can be time consuming and, basing a guess on the time it took for the fractional ARC recommendations to become FARs, the crystal ball comes up with 2006 or later. Holding one’s breath while this process negotiates its tortuous trail would not be recommended.