Far 135.263 and .267 unscheduled

[Makesheepnervus]

"However, the opinion also points out that prevention of flight crew fatigue is the joint responsibility of both the crew and operator. Both would be jointly liable for any violation of 91.13 which might arise if either the flight crew or operator knew, or should have known, that the crew was fatigued or lacked proper rest."

"Both would be jointly liable for any violation of 91.13"? Yeah, and you can bet who is going to be more "jointly liable" than the other.

Sorry, I don't care what legal precedent you wave in front of me, until they change the regs 14 hours is the limit. Period.

 

[FLIIFAST]

Where (web) would I go for FAR written interpitations?

 

[charter dog]

Yep, you got that right! The crew are always on the hook if anything goes wrong or any actions come under FAA scrutiny. At least I assume that to be so.

Sorry, I don't care what legal precedent you wave in front of me, until they change the regs 14 hours is the limit. Period.

I had the exact same reaction when it was waved in front of me. Now I have come to understand that the opinion of FAA legal council need have no effect on what I will do, only on how I will justify my decision to the company and to the customer. This opinion only ALLOWS duty time to be exceeded under the stipulated circumstances. It does not REQUIRE it. You may still refuse just the same way you would refuse to perform other actions which though apparently legal, are not in your opinion safe under the given circumstances. Just don't quote this regulation as your reason for refusal, since you may then have this legal opinion waved in your face. If you feel it is not safe, that is all the reason you need! Think 91.13.

You still may not accept a PLANNED duty period in excess of that (14 hours) which would result in finding ten consecutive hours of rest within the last 24 hours. (lookback) This happened to me recently when a new kid in the office demonstrated their unfamiliarity with this regulation by scheduling a trip in excess of the allowable duty period. Naturally, I'm the one who gets to tell the customer when I arrive to pick him up that he will have to arrive earlier from his meeting than he had been led to believe. He was very understanding toward us, but chewed the charter department's rear end good. Now in the eyes of charter management, I'm the bad guy! (for a day or two anyway) Oh well, that's charter!

Hey, at least the paychecks cash, the airplane credit cards work and nobody pays in cash!

Best,

 

[pilotyip]

Again charter dog demonstrates the big picture is about getting the job done, so the money keeps coming in, so the pilot keep getting paid. You are legally allowed to go over 14 hours for unplanned delays. Some days it is an easy thing to do. You were called out at 0700, you are suppose to be off at 1900, but the pax gets delayed, and you don't get back until 2300. You were in a hotel for 8 of your waiting hours. Who here would put their company’s relationship with the customer in jeopardy for a simple 1.5-hour’s flight back to home base? How there are other cases where at the end of 12 hours after 0100 launch, you call fatigue and go to bed. The regs allow it gives some flexibility and keeps the jobs moving.

 

[FlyingSkip]

Way to go, Yip! Some of these guys may give you grief with these "management" insults, but you have a decent idea that without happy pax/customers there IS NO 135 flying! Safety for the operation of the flight is the premier concern, not some relentless clock ticking away somewhere. The FARs demonstrate the rules we all live under, but common sense should ALWAYS win out! Your example of the "get them there in the AM, sit around in a hotel day room all day napping and watching TV, then showing up for a PM launch and being delayed" syndrome is perfect---are you any less safe in this example than you were for the AM flight after a quick shower, hurried drive to the airport and fast cup of coffee duirng the weather brief? Professionals operate within the regs to safely fly in a way that ensures their companies are successful---prima donnas use the regs to get out of things they don't want to do or look for ways NOT to fly a mission or make a customer happy. But they are the first ones to complain about how the companies aren't doing well enough to give them raises, etc.

Sorry, but I hate whiners. Most of us do, I guess. Those of you who aren't---sorry about the digression. Those of you who are---you know who you are.

 

[gunfyter]

. You are legally allowed to go over 14 hours for unplanned delays..

Unplanned delays are delays that happen before you rotate. If the pax are late... you have not taken off yet. You are now PLANNING to go over 14 hrs. This is not legal.

 

[charter dog]

Well... thanks Pilotyip... I think!

I responded to this thread only to demonstrate that the regs, as interpreted by FAA legal council, do in fact allow SOME flexibility to extend duties beyond the PLANNED period. If a crew believes that it is safe to exceed the planned duty day maximum due to circumstances beyond the control of themselves or the company, it is allowed under this interpretation. Getting the job done IS important for the reasons you state and more. However, conducting a SAFE operation that intends to comply with the spirit of the law is even MORE important. That is why it is important to note that the opinion of FAA legal council contains the proviso that the crew and operator are jointly responsible for assuring that crew fatigue does not become excessive so as to present a safety hazard. If it does, it would be considered careless or reckless operation. As Makesheepnervus has intimated, it is the crew who have the most to lose in this situation. Just as an aside, I know that he has paid his dues in a sketchy hard charter company that pushed the rules beyond limits right along side me. Fortunately for him, he now enjoys more reasonable working conditions in his present job. Not a whiner! Just in a better position to expect some reasonable standards.

I hope that what he, and anyone else reading this takes away from this discussion is simply that if this issue of extended duty due to unforeseen circumstances should happen to come up, that the crew will have to make that decision on their own judgement. Quoting 135.267(b) to defend the decision to call it off is not correct under the currently FAA interpreted meaning of the rule. Safety is the only defensible argument in these circumstances. If on the other hand, the trip is PLANNED in excess of the regulatory limits, this is an entirely different matter! Then quoting the rule is correct. I know this is a fine distinction, but that is the nature of regulations. If I ever found out that an operator was lying to me about the planned duty period in order to circumvent the rules, I would be most disappointed to say the least.

So just to be clear, I am all about getting the job done if it can be done safely and within the rules whether I like it or not. I have another pilot flying with me who must agree with my judgement. It is on me to put a stop to something that is not right whether anyone else agrees or not. It can be discussed later. SAFE and LEGAL are not always the same thing. This is the responsibility of the crew, and to a greater degree, the PIC to determine since they (and perhaps their pax) are the ones who must live with the decisions. I often wonder what the pax would think if they knew how close to the edge fatigue can take you. Pressure to produce, when coupled with fatigue can produce some monumental breakdowns in aeronautical judgement. This usually comes to light following accidents, incidents and violations along with myriad other factors. Fatigue and commercial pressure are still aviation's dirty little secrets in that the general public really has no idea how these factors affect their safety. My job is to balance all the competing and often contradictory interests to achieve a safe outcome every time while satisfying both my employers and their customers interests. All this without running afoul of the rules so that I might remain employable.

I do not approve of the practice of hiding behind rules to justify not doing something you just don't want to do. Nor do I believe that just because the rules may allow something to be done, that it is always necessary or prudent to do so. It all comes down to objective thinking and a desire to do the right thing. The above statement presupposes that the necessary skills, knowledge and proficiency allready exist within the individuals concerned. Since this is really not measurable to any degree of certainty, operators must apply some safety margins of their own beyond what the rules require. Bottom feeder companies tend to "forget" this in the name of the allmighty dollar with regularity! "Premium" companies are not exempt either. The company culture sets the tone, but the flightcrew has the last word in putting a stop to unsafe or illegal actions. A great many of us got our start in bottom feeder companies and then moved on to greener pastures. Only by raising our standards can we hope to raise the industry standards. So think about that when pilots "whine" about fatigue. It may not be simple griping.

Best,

 

[pilotyip]

Charter dog as posted above it is always about safety. There are situations where you can feel very safe in going over 14 hrs because of a delay and there are other times even going to 14 hrs is a stretch of a crew’s endurance. But to say a trip that was planned for less than 14 hrs hits a delay for any reason that it should be shut down automatically, is counter to good business practice when it can be done safely. The regs give you the option and crews can legally finish that trip. We run a clean operation inside the constraints of the on-demand business and our crews understand their limitations in getting the job done.

 

[charter dog]

Agreed Pilotyip.

The fact is, it takes many years of working within the industry to achieve a working knowledge of the regulations sufficient to interpret them accurately in day to day operations. This is why we must rely on senior airmen and continual self directed study to aid in this learning process. I have been fortunate enough to have some good CPs who could provide references to back up their interpretations and I have endeavored to emulate their good example. Just as I feel I finally understand the current flight and duty time regulations, they are on the verge of changing! I hope there are real improvements in the new regs when they take effect. From a business standpoint, a level playing field is probably the most important factor. From a pilot employee standpoint, the issue of what constitutes duty and rest could stand some improvement. Whatever the rules turn out to be, we will all have to know how to work within them. It will be an interesting transition to say the least!

Best,

 

[AngelKing]

Unplanned delays are delays that happen before you rotate. If the pax are late... you have not taken off yet. You are now PLANNING to go over 14 hrs. This is not legal.

Gunfyter, that is not how it works, give it up, you are stretching, doesn't even makes any sense.

AK

 

[ultrarunner]

Thank you charter dog a nice touch of reality. It can be abused by companies, but you are allowed to go over 14 hrs duty in 135 ops if it is not planned.

So, an "unplanned delay" say, for 8 hrs has occured, and you have a 2 hr flight after the end of this "delay".

You can depart? And basically been 'on-duty' for 24 hrs since you had 10 hrs rest before beginning the duty period?

 

[pilotyip]

Happiness?

Ultra I think an 8 hour delay might be streching it. What point are you trying to make? Have you worked in the 135 on-demand? Are you happy now? I have heard of 135 guys taking a 10 hour delay and calling it rest, because they are paid by the mile. They were legal, but were they rested. BTW we pay by the hour, not the mile, so is was not our outfit.

 

[AngelKing]

Ultra I think an 8 hour delay might be streching it. What point are you trying to make? Have you worked in the 135 on-demand? Are you happy now? I have heard of 135 guys taking a 10 hour delay and calling it rest, because they are paid by the mile. They were legal, but were they rested. BTW we pay by the hour, not the mile, so is was not our outfit.

I agree, 8 hours is stretching it a bit much. It is not really clearly defined how much it can be stretched. That is where common sense has to come in. That is also why we have lawyers. If all laws/regs were cut and dried, there would be no need for them.........hmmmm.


AK

 

[ultrarunner]

I agree, 8 hours is stretching it a bit much. It is not really clearly defined how much it can be stretched. That is where common sense has to come in. That is also why we have lawyers. If all laws/regs were cut and dried, there would be no need for them.........hmmmm.


AK

Yes Pilot, I have done 135 OD, and traded it for this specific reason, among others also. And yes I'm happy.

But again, you guys are saying that "oh..no 8 hr delay would be a stretch..."

Who says????? No one. That's my point. There is no protection. In the eyes of the FAA, if a 1 hr "delay beyond the control...." is legal, so then is a 9 hr delay. Right? I can't find the FAA's reference to the common sense comment by AK.

Hence, in theory, a 135 OD slave could in fact be on duty for 24 hrs.

THIS is why the 135 duty regs with get a re-write to align with 121. And that's ok.

 

[gunfyter]

http://www.ainonline.com/issues/04_01/Apr_2001_faanewdutypg1.htmlFAA to enforce new duty time interpretation

by Gregory Polek

The Regional Airline Association has alerted its Part 121 members that the FAA will affirm in a policy statement its November 20 “clarification” of the pilot duty-time rule that requires a rest period of at least eight hours for each 24-hr period and a maximum of eight flight hours between required rest periods. The new interpretation of the rule, at press time under review by the DOT and scheduled to appear in the Federal Register early this month, removes ground delays from the generally accepted list of uncontrollable circumstances that allow pilots to exceed their duty limits.

The FAA will require all Part 121 carriers to comply within six months of the policy statement’s publication date. The Air Transport Association has filed a petition for review in the U.S. Court of Appeals for the District of Columbia in an attempt to reverse the FAA’s new interpretation of the rule.

According to the RAA, the policy statement will, in essence, establish a strict 16-hr duty limit, regardless of circumstances beyond the control of the carrier. Currently, the rule allows pilots to exceed their scheduled duty limits if circumstances such as adverse weather conditions and traffic cause a delay. Under the FAA’s “clarification,” an airline will have to adjust its crew schedules to reflect those changing conditions. Similarly, if a ground delay occurs while the pilot waits in line to take off, he or she must return to the gate if the delay will result in a duty-time violation. Only after the airplane leaves the ground can unforeseen circumstances allow a crewmember to exceed scheduled duty times.

 

[gunfyter]

In the FAA interpretation that the Court of Appeals has just held valid, FAA Deputy Chief Counsel James Whitlow wrote, "If, when using the actual expected flight time [for a segment], the carrier cannot find at least 8 hours of look-back rest upon arrival, then the flight may not depart [on that segment]."

With regard to delays, the interpretation states, "If, when this information is factored in, it is known or should be known that arrival based upon the actual expected flight time will not result in at least 8 hours of look-back rest, then the flight may not leave the gate. If the flight is away from the gate, but not yet in the air, then the flight may not take off." The ruling therefore requires pilots and airlines to continuously monitor delays, particularly during lengthy duty periods, to ensure that a flight will not violate the rest requirements under the FAA regulations.


AK says:

Gunfyter, that is not how it works, give it up, you are stretching, doesn't even makes any sense.

AK



​

You were saying AK?

 

[pilotyip]

121 rules

Gunfyter, are you confusing 121 regs with 135 regs? BTW ultra, 121 supplemental rules are among the most demanding regs on a flight crew. The reg lets you take duty breaks. Company says there is going to be a 4 hr cargo delay, so go to the hotel we will take you off duty for three hours, then we can still keep you on a 16 hr duty day, which will really be 19 hrs since you checked in. 100% legal. Then there is the lovely drop and add, where you never really get legal, because you will not exceed 8-hr flight time in a 24 hour period. You fly 6.5 hours, so you need 13 hours for duty free for legal rest, but you only get 11 so it is only a duty break. You start dropping time from the night before at 2230, so you can take off at 2135 and start flying because as you build time you are dropping time from 24 hours ago. We went like that for two days in the awesome L-188 flying out of the Emery Dayton Hub. I did that under an ALPA contract at TransAmerica. 121 crew rest rules would be the idea replacement for 135 if the changes approach Part 91 subpart K

 

[gunfyter]

I am not confusing them. I am just showing what FAA thinks of delays. They will say the same thing if you are 135.

Just because I can't find a quote from the Chief Counsel... you rotate to do the trip at your own risk.


The book THE FARS EXPLAINED by Jeppessen has examples Court Cases of Pilots VIOLATED for exceeding Part 135 Duty limits... due to ground delays.

Get a copy.

We are not far away from a rewrite of 135 with all new and different Duty/Rest rules. 135 managements are at the ARC trying to influence the outcome in their favor... because they KNOW that FAA interprets the current rules as i have said... and they don't like it.

 

[AngelKing]

I am not confusing them. I am just showing what FAA thinks of delays. They will say the same thing if you are 135.

Just because I can't find a quote from the Chief Counsel... you rotate to do the trip at your own risk.


The book THE FARS EXPLAINED by Jeppessen has examples Court Cases of Pilots VIOLATED for exceeding Part 135 Duty limits... due to ground delays.

Get a copy.

We are not far away from a rewrite of 135 with all new and different Duty/Rest rules. 135 managements are at the ARC trying to influence the outcome in their favor... because they KNOW that FAA interprets the current rules as i have said... and they don't like it.

Gunfyter, I would love to see an example of a 135 violation of a pilot who started out on a trip that was going to be legal and for circumstances beyond the control of the operator was delayed and the pilot was violated for it.

Cough it up and shut us all up.


AK

 

[gunfyter]

http://www.finkelaviationlaw.com/art7.html

Weather, ATC and mechanical delays often compromise rest requirements. To these, an FAA attorney has given this interpretation:

"The FAA has consistently interpreted delays due to weather, ATC, and mechanical delays as examples of circumstances beyond the control of the certificate holder under FAR 135.263(d). A correct interpretation of the flight time limitations under FAR 135.265, together with the flexibility of FAR 135.263(d), results in a requirement to add a flight crewmember's actual flight time accumulated in the previous days to the flight time scheduled to be flown for the particular day that is under review. If the total flight time, actual plus scheduled, is not in excess of the limitations under FAR 135.265, then the flight crewmember may complete all flight segments for that day."​

However, as a caveat, the interpretation makes clear the FAA's ultimate position:

"Lastly, we point out that in the course of a day's scheduled events, delays due to adverse weather conditions, ATC, or unscheduled maintenance, may cause a flight crewmember to become significantly fatigued. If the state of fatigue would endanger or potentially endanger the life or property of other persons, then the certificate holder should relieve the flight crewmember from further duty aloft. In this respect, note the provisions of FAR 91.13 entitled 'Careless or Reckless Operation.'"​

If the FAA believes careless or reckless operation was involved, certificate action will probably occur. Otherwise, rest period violations often involve civil penalties, where the losing pilot ends up with a hefty fine. One such case resulted in a $10,000 civil penalty assessed against a charter operator, and $2,000 each against the two Lear Jet pilots. The pilots were held to have had less than the required 10 consecutive hours of required rest. They argued that delay of delivery of freight to an airport constituted a circumstance beyond their control. But the Administrative Law Judge was quick to point out that the pilots were aware when they accepted the assignment that the freight would be late in delivery.

The lesson to be learned from this decision is that pilots must formulate a planned completion time. They must make certain in advance that duty times will not be excessive, and rest periods complied with. ...

Part 121 and 135 operators and pilots must be thoroughly aware of duty/rest period requirements. Inspectors and attorneys are under considerable pressure to police the industry. One aftermath of the ValueJet crash into the Florida Everglades was increased scrutiny into commercial operations. The public demands that the FAA make certain commercial operators are safe. That means inspectors will be paying more and more attention to records. As long as operators and pilots follow the rules and make certain their record keeping is precise, the flying public can feel more secure about their safety, and pilots more secure about their future.
§ 121.471 Flight time limitations and rest requirements: All flight crewmembers.