"Duty time"

[vetteracer]

We just went through this very issue.

I fly for a hospital, king air 200 medevac.

We have 12 pilots and 2 aircraft. We use to work 24 hours on call. We had 20 minutes to be to the airport and could be at home in bed or whatever we wanted. We would work as many as 5 – 24 hour shifts. We would not have any dedicated rest time unless we flew. We would stay on call, and if we did not get another flight for 10 hours, we were assumed to have had our rest. We use pagers and 2 way radios.

Our local POI changed and investigated this practice and the matter went to the top at the FAA. Took about 3 months.

The FAA ruled that anytime a pilot is making himself available to fly, IE, pager time, or in a position to receive call, or be called out, THIS IS DUTY TIME. So the only time that was considered rest time by the feds was that time the company could not call you for a flight or flight duty.

So we went to 12-hour shifts.

The POI explained that if an accident or incident to place, the investigation would note how long we had been on call and that we did not have our required rest, and therefore are breaking the regs, and that this is ultimately the pilot’s responsibility. He is a pretty cool guy and I really got the feeling that he was looking out for us. It forced the company to hire 3 more pilots to make the schedule work.

Mark

 

[rettofly]

Re: Re: "Duty time"

Ask any 121 reserve pilot, this exact issue has changed 121 reserve duty forever.

In the 121 context which seems to have similar language as 135, Yes it's duty if you're on "reserve", You must be able to look back 24 hours and find a legal, appropriate rest period (free from ALL duty)

Later

Under FAR 135, "Rest Time" is simply the required 10 hours (or more, if max flight time is exceeded) following the completion of a duty period.
Once that required period is over, the company may call or page for the next assignment regardless of the time of day.
Legal? yes. Safe? Not if you get called about the time you'd be hitting the rack.

 

[English]

We just went through this very issue.

I fly for a hospital, king air 200 medevac.

We have 12 pilots and 2 aircraft. We use to work 24 hours on call. We had 20 minutes to be to the airport and could be at home in bed or whatever we wanted. We would work as many as 5 – 24 hour shifts. We would not have any dedicated rest time unless we flew. We would stay on call, and if we did not get another flight for 10 hours, we were assumed to have had our rest. We use pagers and 2 way radios.

Our local POI changed and investigated this practice and the matter went to the top at the FAA. Took about 3 months.

The FAA ruled that anytime a pilot is making himself available to fly, IE, pager time, or in a position to receive call, or be called out, THIS IS DUTY TIME. So the only time that was considered rest time by the feds was that time the company could not call you for a flight or flight duty.

So we went to 12-hour shifts.

The POI explained that if an accident or incident to place, the investigation would note how long we had been on call and that we did not have our required rest, and therefore are breaking the regs, and that this is ultimately the pilot’s responsibility. He is a pretty cool guy and I really got the feeling that he was looking out for us. It forced the company to hire 3 more pilots to make the schedule work.

Mark

This is what many in the 135 world have been waiting for. But, you say the FAA "ruled that anytime a pilot is making himself available to fly, IE, pager time, or in a position to receive call, or be called out, this is duty time"... do you have a copy of this ruling? Was it an interpretation you are referring to? Do you have anything we can reference (a weblink, a letter sent to your company, anything) that we can use to back up this position with other 135 operators? Who was the top FAA official that was involved?

Thanks for the info.

 

[avbug]

The FAA ruled that anytime a pilot is making himself available to fly, IE, pager time, or in a position to receive call, or be called out, THIS IS DUTY TIME. So the only time that was considered rest time by the feds was that time the company could not call you for a flight or flight duty.

The "FAA ruled"? Where is this written, and where is the statement of policy by either the Administrator or the FAA Regional or Chief Legal Counsel?

This topic has already been addressed by presentation of the legal statements by the Administrator via the Chief Legl Counsel's office. Why is it still being discussed?

The POI explained that if an accident or incident to place, the investigation would note how long we had been on call and that we did not have our required rest, and therefore are breaking the regs, and that this is ultimately the pilot’s responsibility.

No finding of fault will be scheduled unless you're foolish enough to write a statement that you've been on call. If you haven't flown, and have no duty to respond to a flight, then you are at rest, period. End of story.

If the company can call you, and you have the option to say no, then you are not on call, on reserve or anything else. This has already been discussed, complete with legal interpretations, clearly.

If the company assigns you to duty, you are on duty. If the company does not assign you to duty, but expects you to be available to take calls or respond, and you agree, the you are not on duty, but are not receiving rest.

If the arrangement is that you have a telephone, and the company calls you when they go down the list of pilots, and you have no obligation to answer the phone or go fly, then you can be at rest. This is the typical arrangement, and it's legal.

Post your interpretation or legal statement of policy, as received by your POI from the "top of the FAA."

 

[vetteracer]

I should elaborate a little more on the subject.

Our 135 certificate is operated by our hospital, not an FBO. The hospital has 2 KA-200 and a Bell 232. Operating on 2 separate 135 certificates. So above the DO, we have hospital management and thier attorneys.

To make a long story short, we were operating 3 crews per day, 2 on 12-hour shifts and one crew on a 24 hour shift. This came into question with the POI after some questions were raised about the incident in Alaska where the local FSDO and the national FAA got involved.

We had similar concerns so the issue was investigated. Since we are scheduled to be on CALL, and if weather permits, we have to accept the flight. There is not an option of saying, well, I am not in the mood to fly, call someone else.

The issue was raised by the local FSDO, (Rapid City) and they pondered the issue and stated that we were in violation, since pager time, in our case, was duty time. They considered since we had set times, and set days that we were to be on call to accept a flight, that was duty time.

The hospital came back with there legal interpretation, and stated that since we were on demand, and the pilots may be able to get their rest if no flights were called out, then we had the appropriate rest. The Local FSDO guys argued that since we were standing by the pager, be it at home in bed, that was duty time. There were no provisions set aside for specific rest time, and rest time in-defacto was not appropriate.

The hospital lawyers then prepared to obtain a legal interpretation at the national level. 3 days later our schedule was changed.

This is certainly a case by case issue, but in our case, this is how it played out. Now, if you are say, on call, and have the opportunity to reject a flight, then this may be a different deal.



Quote
"No finding of fault will be scheduled unless you're foolish enough to write a statement that you've been on call. If you haven't flown, and have no duty to respond to a flight, then you are at rest, period. End of story."

That is true, except the only thing they would have to do is look at the schedule in the pilot lounge and they would be able to see when I was scheduled to be on call. You may be misunderstanding our operation. We are scheduled to be on call at certain times. In the past this could have been 5 days in a row, 24-hour shifts, so 120 hours in a row. With the only scheduled rest occurring when we actually flew. We are given pagers and we can do what ever we want as long as we can be to the airport in 20 minutes.

Quote
"If the company can call you, and you have the option to say no, then you are not on call, on reserve or anything else. This has already been discussed, complete with legal interpretations, clearly."
WE do not have the option to turn down a flight based on duty time, unless we have already flown trips. In the past our "duty time" did not start until we were paged. This was the basis for the argument. We were on call, without the option of saying no because we were tired, we were expected to be ready to start a 14-hour duty day at any time we were on call.




Quote
"If the company assigns you to duty, you are on duty. If the company does not assign you to duty, but expects you to be available to take calls or respond, and you agree, the you are not on duty, but are not receiving rest."

Exactly, so if we were on call, but not on duty, for 120 hours, flight or not flight, there was no dedicated rest time unless we were activated on a flight, at which time our duty day started.



Quote
"If the arrangement is that you have a telephone, and the company calls you when they go down the list of pilots, and you have no obligation to answer the phone or go fly, then you can be at rest. This is the typical arrangement, and it's legal."

This would not apply to us, since we are the dedicated crew and expected to fly.

Mark

 

[avbug]

Uh...right.

What your employer, or the hospital has to say means exactly nothing. Squat. Zero. Zilch. Whatever.

What the FAA has to say means everything. Period. The FAA issues your operating certificate, your pilot certificate, your airworthiness certificate, and the legal interpretations and regulations that pertain thereto. Period.

Your attorneys and the hospital don't have the option of issueing or creating any kind of legal interpretation. Any input they have on the matter is entirely without meaning, weight, or importance. It's fluff.

Any legal interpretations, which have already been clearly provided, carry full weight, and are defensible in court.

To obtain a legal interpretation typically requires a year or more.

Two different sets of regulations apply. If you have regularly scheduled duty periods, you must adhere to a specific set of conditions applicable to your operation. This is the route your firm has chosen to go. If those duty periods are altered even only a few times, as the hospital attempted to do, then you come under an entirely different set of regulations.

This seems to be hard for many operators to understand. There advantages to either method. I'm on the road right now and don't have regulations with me for a couple of weeks, otherwise, I'd quote the specific references for you. However, if you go with the first set, which is applicable (I think) under 135.265, you can operate as being on rest until you take a flight...so long as you can suggest you don't have a duty to respond. Yes, I understand that you're the guy on call...but so far as the FAA is concerned, if you can answer that you don't have to take the fligth if you don't want to take the flight, and the dispatcher can answer that he or she simply calls down the list until a pilot takes a flight, then you and your firm have no issues at all.

What you can't do is exceed your 8 or 10 hours of flight time within a 24 hour block.

What the second set of regulations provides for you, and I believe without looking that it's 135.267, is the ability to exceed your flight time limitations in a 24 hour period. You are bound, however, by regularly scheduled duty periods. You may occasionally work outside the regularly scheduled duty period, but it must be very occasional and must be unforecast. If it's any more than occasional, you must fall back to the earlier set of regulation...

This would be a lot easier with regulations at hand. And more time. However, in your case the matter is settled and it's a done deal...adding more time to the issue for other than the purposes of discussion only, would be pointless.

 

[pilotyip]

Old ALPA Contract

Looking at my old contract from the 121 supplemental days (early 80's), on reserve we were requried to stand a phone watch, before pagers, it was not considered duty. Duty did not start for a reserve pilot until they were told to report to a location for an assignment. How do the present union carrier handle resevre time and duty time?

 

[vetteracer]

Quote

"What your employer, or the hospital has to say means exactly nothing. Squat. Zero. Zilch. Whatever."

I realize this, but they did not understand that.


Quote
"Your attorneys and the hospital don't have the option of issuing or creating any kind of legal interpretation. Any input they have on the matter is entirely without meaning, weight, or importance. It's fluff."


Yes, but try telling them that! They learned it the hard way, and were not about to come to us and say, oh, by the way, you guys are right. We understood our point was taken when the schedule changed and new hires were brought on. Come on, Lawyers capitulating!



Quote
"To obtain a legal interpretation typically requires a year or more."

If a legal interpretation was received, I doubt that the hospital would admit it. They saved face and just changed the schedule. This issue was on the table for over a year.


Quote
"This seems to be hard for many operators to understand."
I agree. After some teeth cutting and some bumps we are on the right track and there are no hard feelings on the subject. The resultant was having to hire 3 more part timers and to take on of our aircraft out of service for 12 hours. This is good and bad.



Quote

"What you can't do is exceed your 8 or 10 hours of flight time within a 24 hour block."

We wound up going to "scheduled" operations, so a max of 16-hour duty day. But that raises extended rest issues.



Avbug, I am not sure if I am somehow beating a dead horse here, as I am new here. I enjoy your discussion and don’t think my posts as argumentative.

There are many more issues to this story and our old style of operation was so unique it would take half the bandwidth here to get it started.
I bet out of 500 135 operations, there would be 100 different ways of addressing this issue.

Mark

 

[LJDRVR]

Good information.


AvBug's FAA chief counsel postions are the definitive and ONLY source of legal interpretation. As previously stated, it doesn't matter what your POI thinks. (Except in terms of do they want to violate you based on an individual interpretation? Their lawyers usually won't let them.)

What those of you in the 135 arena need to realize is that the way MOST operators conduct crew availability, the law is being broken. Most operators will fire you in a heartbeat if you attempt to turn down a trip. They reley on the fact that most pilots don't do their homework and haven't researched any chief counsel ruling. They also benefit from the fact that the average POI hasn't either. The pilots are told: "Of course this is legal, just ask our POI!" What you want to consider is this:

The NTSB does not recognize fatigue as a probable or supporting cause of an accident.

IF you bend the jet, and you weren't in compliance, the FEDS and the insurance company are gonna come after you.

When this happens, the company will dis-avow all knowledge of any culture related to their pilots be required to accept a trip. "Capt Doe was a highly trained professional. He KNEW that if he was fatigued didn't expect him to do the trip."

The company will point to the language contained in their FAA approved operations manual concerning pilot availability. Take a look at yours. I'll buy you a beer next time you're in Texas if the system described on paper bears any similarity to what your company is actually doing.

The sad truth is this: in the 135 arena, the FAA doesn't give a rat's patootie about the rules being followed, UNLESS the airplane gets bent. Those of you bending over backwards to get the job done, need to imagine what your employers response is going to be if you kill yourself. The same owners and managers who patted you on the back for bending the rules eight way trough next tuesday to make the charter, the same folks who pay complete and total lip service to any idea of integrity, proper maintenance or taking any sort of substantive action to be worthy of the public's trust by pencil whipping and/or ignoring legitimate write-ups, are going to release a press statement that sounds something like this:

"XYZ Airlines upholds the strongest commitment to the safety of our employees and the travelling public. XWZ pilots are taught from day one that safety is our number one priority. We expect all of our professionals to make the most conservative safety descisions possible, and support them fully in doing so."

 

[captdaddy]

Thank you. This is what I thought.

I will police my own rest--and accept or refuse trips accordingly.

 

[JumpJetter]

Source..link?

In a legal interpretation dated 10-05-87, the FAA Chief Legal Counsel noted "The Agency has interpreted "duty" as including actual work for a certificate holder or present responsibility for work if the occasion should arise."

If the company has no expectation that the employee must be available to fly, but the employee volunteers or agrees to do so without that responsibility, it does not interfere with a rest period. Carrying the pager at company request = no rest. Carrying the pager at pilot's volition with no company assignment or responsibility = no problem.

In the same legal interpretation cited above, the FAA Chief Legal Counsel also noted "The Agency has interpreted privosions substantively identical to 135.263(b) to the effect that a flight crewmember's receipt of one telephone call from his air carrier employer during a required rest period does not violate a regulation such as 135.263(b)."

In a different interpretation dated 12-9-99, the applicant submitted the following question: "During the crew's rest period, may the certificate holder initiate contact with the crew to assign a trip, which is scheduled to begin "after" the crew's rest period?"

The FAA Chief Legal Counsel responded: "A period of time during which a pilot has a present responsibility for work should the occasion arise, does not qualify as a rest period. The question you ask, however, concerns the situations where the pilot does not have a present responsibility to do anything for the air carrier, not even to answer the telephone or a pager. This pilot, when contacted, is merely being notified of a flight assignment to take place at the conclusion of his or her rest period. The pilot, during the rest period, was not obligated to be available to answer the telephone or a pager. Accordingly, a certificate holder may attempt to initiate contact with a flight crewmember to assign a trip scheduled to begin after the required rest period without violating 135.263(b)."

Avbug, can you provide a link to I can find the above legal interpretations you listed?

Thanks

 

[JetBlast2000]

Fluff!

Our company had a interesting situation, here goes…



Our flights went out in the evening and back in the morning. We were able to get our legal rest on either side of the clock. So, the company wanted you available both at night and during the day for charter work. Our rest would be whatever worked best for the company or did not violate the 8/10 in 24 hour rule and the required rest in a 24-hour period. The problem was they looked back to count our required rest in a 24 hour period. So if they worked you at night, you got the day off and vice versa.



As a result several of us explained that you must declare your rest period. As Avbug has stated, “rest must be determined looking forward, not back. That is, one cannot simply state that one hasn't flown for 10 hours (or as applicable under given circumstances), and therefore have adequate rest.”



We now designated certain pilots on duty both day and night.



On call = on duty? Yes and no. The question needs to be answered by the FAA Chief Legal Counsel. Every thing else is, as has been stated, just “fluff.”

 

[avbug]

On call = on duty? Yes and no. The question needs to be answered by the FAA Chief Legal Counsel. Every thing else is, as has been stated, just “fluff.”

It has been answered. Repeatedly. It seems, rather, that nobody is listening.

Rest is always determined looking back, however, one cannot simply look back and stipulate that 10 hours without flying qualified as rest.

At the completion of the previous duty assignment, if the pilot might be released, then the subsequent 10 hours accrues as a rest period. At the conclusion of those 10 hours, which are included looking back, the pilot may again accept duty.

 

[JumpJetter]

I say again...

Avbug, can you provide a link to I can find the above legal interpretations you listed?

Thanks

I say again...
Thanks

 

[youmustbejoking]

Avbug is right on target

This issue is very well settled. The greatest difficulty is finding Chief Legal Counsel interpretations online. They just aren't available. Probably be a good thing to suggest to the FAA to improve upon. Regardless, they can be found at a limited number of law libraries, the FAA in DC, and a smattering of law firms across the country.

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=32176&dbname=1999_register


The foregoing is a link to 64 Federal Register 32176 (June 15, 1999). It states, in part, "The FAA has consistently interpreted section 121.471(b) and section 135.265(b) to mean the certificate holder and the flight crewmembers must be able to look back over the 24 consecutive hours preceeding the scheduled completion of the flight segment and find the required scheduled rest period. This interpretation of rest also has been applied to pilots on `reserve time.' Reserve time while not defined in 14 CFR [the FARs] is generally understood to be a period of time when a flight crewmember is not on duty but must be available to report upon notice for a duty period. Thus, a flight crewmembers (sic) on reserve could not take a flight assignment, and the certificate holder could not schedule that crewmember for a flight assignment unless the flight crewmember had a scheduled rest period such that at the end of the flight segment one could look back 24 hours and find the requirement (sic) amount of rest."

Another useful link is www.alpa.org. On the public section of the website there is a very good duty and rest handbook in pdf format.

Unfortunately, the issues of duty and rest applicable to FAR 135 operators are misunderstood throughout the industry. Nonetheless, the FAA's position on the matter is very clear. The present regulations governing the operation of 135 unscheduled carriers were adopted in 1985. The enforcement of these regulations has been spotty at best. Nonetheless, a body of law developed from the time of the adoption of the current regulations concerning duty and rest which holds the time a pilot is "on call" or "on reserve" cannot be included in calculating compliance with the look back rest provisions of FAR 135.267(d). On June 15, 1999, the FAA issued a "notice of enforcement policy" reiterating its longstanding interpretations of the duty and rest rules and putting 135 operators and pilots alike on notice of the FAA's intent to vigorously enforce these rules.

After publication of the "notice of enforcement policy," a group of about 50 on-demand charter operators formed a trade association called "Aviator for Safe and Fairer Regulation" and brought suit in federal court against the FAA seeking to enjoin enforcement of the duty and rest requirements. The court, in that case, found in favor of the FAA and upheld the principal that being on call, with a responsibility to report and fly, does not constitute rest.

The bottom line is that you may not include the time spent on call as rest for purposes of determining whether you are in compliance with the look back provisions of FAR 135.267(d). You should not accept a 135 trip assignment if the scheduled cumulative on call time and duty time exceeds 14 hours. Obviously, if you are assigned a 91 trip, this rule is inapplicable. However, upon implementation of 91K, which I believe takes effect December 17, 2004, the same general limitation will apply under either 91K or 135.

Fortunately, the Aviation Investment and Reform Act for the 21st Century included a whistleblower protection provision. This provision protects you from discrimination by your employer for alleging a regulatory violation to either your employer or the FAA. It is a unique provision in that it involves OSHA and the FAA in conducting an investigation into any allegation of retaliatory conduct against an employee of an air carrier under both 121 and 135. The Whistleblower Protection Act can be found at http://www.oalj.dol.gov/public/wblower/refrnc/air21sec519.htm

To boost your confidence, please look at my citations. Most of these are readily available on the internet with the exception of the Chief Legal Counsel Opinions which will require tracking down a law library. Perhaps more importantly, my present employer, a small fractional, charter, management company with 4 light jets and 1 mid-size jet, when presented with this information, grudgingly conceded our on call time could not be included in calculating rest.

If you have any questions, please do not hesitate to contact me.



# 50 Federal Register 29306 (July 19, 1985).

# "The FAA has consistently interpreted its `rest' requirements to be satisfied only if the rest time is determined prospectively, is continuous, is free from all duty and restraint, and is free from the responsibility to work should the occasion arise. A period of time during which a pilot has a present responsibility for work, if called, does not qualify as a rest period." Federal Aviation Decisions: Chief Counsel Opinions, Interpretation 1993-9, pp. I-129, I-130. "`Rest' requirements are satisfied only if the rest time is determined prospectively, is continuous, is free from all duty and restraint, and is free from the responsibility to work should the occasion arise; thus, a period during which a crewmember is on a beeper in case a trip comes up does not qualify as a rest period." Federal Aviation Decisions: Chief Counsel Opinions, FAD Digest of Interpretations, FAR 135.263(b), Interpreration 1993-9, pp. I-129, I-130. "Reserve duty is not rest, as the type of reserve duty described requires that the crewmember be available to fly, should the opportunity arise." Federal Aviation Decisions: Chief Counsel Opinions, Interpretation 1997-3, pp. I-130, I-131.

# 64 Fed. Reg. 32176 (1999).

# Aviators for Safe and Fairer Regulation, Inc. v. Federal Aviation Administration, 221 F.3d 222 (1st Cir. 2000).

# http://www.oalj.dol.gov/public/wblower/refrnc/air21sec519.htm