Far 135.263 and .267 unscheduled

[rk772]

I have a question concerning my companies interpretation of duty day requirements for Unscheduled one and two pilot crews.


Sec. 135.263 Flight time limitations and rest requirements: All certificate holders.

(d) A flight crewmember is not considered to be assigned flight time
in excess of flight time limitations if the flights to which he is
assigned normally terminate within the limitations, but due to
circumstances beyond the control of the certificate holder or flight
crewmember (such as adverse weather conditions), are not at the time of
departure expected to reach their destination within the planned flight
time.

I see paragraph (d) as only applying to actual flight time. My company, however, takes the view that this applies to duty time and rest as well.

Example:
-14 hour duty day with 5 hours of flying
-10 hours of rest was given before duty day began.
-On last leg of trip, weather moves through, delaying the departure by 1.5 hours. If we depart, we will still be under our regulated flight time but a look back from the completion of the trip will show 15.5 hours of duty and 8.5 hours of rest in the proceeding 24 hour period.
Are we legal to depart. I don't see any regs in .263 or .267 to provide for reduced rest for circumstances beyond our control. It only considers flight time as highlighted above.

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My second question is concerning part 91 legs on a part 135 trip.
Example 2:
-14 hour duty day
-10 hours of rest before duty day begins
-5.5 hours of flying
-leg 2 and 3 are 135 with passengers
-leg 1 and 4 are 91 with no passengers.
-leg 3 has a 1 hour hold in the air (weather)
-leg 4 (empty returning home leg) will now arrive in the 15th or 16th hour, reducing my rest (in the past 24 hours) to below 10 hours.
Is leg 4 considered part of the whole 135.267 trip and therefore covered under the 24 hour look back rule which requires 10 hours rest.
I guess my question is, would you continue and just call it part 91 or would you get a hotel and try it 10 hours later. I've heard it said before that one drop of poison, spoils the whole barrel. (one part 135 leg on a trip makes the whole trip 135)

 

[flyfastinmy10]

I'm pretty sure that the rest requirement for 135 is 10 hours preceeding your duty period. If your first leg is empty (91) it still counts toward your 14 hours 135. However at the end of the day It is legal to fly home part 91. I've always found it hard for my body to tell the difference between 91 and 135. I still get tired on a 15 hour 91 day. The company just never seems to understand why.

 

[G100driver]

Here is the real question ... are you in charge or is "dispatch"

 

[pilotyip]

Planned

The key word is planned, if it was planned to be completed inside duty limits then it is legal. If crew can't do it they call fatique.

 

[Yknot]

test test

 

[gunfyter]

Example:
-14 hour duty day with 5 hours of flying
-10 hours of rest was given before duty day began.
-On last leg of trip, weather moves through, delaying the departure by 1.5 hours. If we depart, we will still be under our regulated flight time but a look back from the completion of the trip will show 15.5 hours of duty and 8.5 hours of rest in the proceeding 24 hour period.
Are we legal to depart. I don't see any regs in .263 or .267 to provide for reduced rest for circumstances beyond our control. It only considers flight time as highlighted above.


​

NO

 

[AngelKing]

My opinion is you can depart, you just need the required amount of rest before your next trip. As long as you were legal to begin that trip, if you get delayed beyond your control, you can finish the trip.


And G100driver, you know it is a little more complicated than that.


AK

 

[gunfyter]

.... Before you depart the gate on each flight segment, you must calculate whether you will arrive and be released at the destination airport so that you can "look back" 24 hours from the release time and find at least 10 hours of rest. In determining your arrival time, you must consider actual conditions, such as weather, ATC, ground holds, or any other known delays. If you estimate you cannot reach the destination and at release meet the look-back provision, you should not depart the gate, even if you were legally scheduled.

If you estimate at the gate that you will arrive at the destination and be released in time to comply with the look-back requirement, but you have an unexpected ground delay prior to take off so that you will not arrive in time to comply with the look-back requirement, you cannot take off and must return to the gate.

 

[rice]

The key word is planned, if it was planned to be completed inside duty limits then it is legal. If crew can't do it they call fatique.

Come on YIP!!!!!! We all know you're a management type guy, quit looking at it from only one side.
The truth of the matter is the FAA General Counsel has repeatedly issued a differing opinion from the operational side (FSDO's/POI's). In fact, recently the FAA put out a request for comment because there have been numerous requests for clarification on this very issue. If the feds can't speak with one voice on this subject, how can you????
BTW, what constitutes "circumstances beyond the control of.................."??? They (feds) have different answers for that too. Don't be to surprised if the entire industry gets a wake up call before the end of the year. After all, it is supposed to be a "one level of safety" standard.

 

[gunfyter]

Nprm

Loophole for tail end 91 reposition flight is going away soon!

This is in the current NPRM for 135

OTHER FLYING FOR A CERTIFICATE HOLDER
Proposed § § 121.487 and 135.275 establish duty period and flight time limitations for other flying for a certificate holder, including flying under part 91. Flight crewmembers and certificate holders must ensure that any duty periods and flight assignments assigned by the certificate holder are scheduled, assigned, and performed under the applicable requirements of parts 121 and 135 (14 CFR 121.473, 121.477, 121.479,121.481, 121.483, and 14 CFR 135.263, 135.265, 135.267, 135.269, and 135.271) even if the flight is not conducted under part 121 or 135. In addition, any flight crewmember who is employed by two or more air carriers or commercial operators must ensure that any duty periods and flight assignments are scheduled, assigned and performed under the applicable rules of parts 121 and 135. In other words, when certificate holders assign flight crewmembers to conduct ferry flights, or other flights under part 91, this flight assignment is treated just as any other duty period involving flight.

This proposal is based on NTSB recommendation A-94-105, which was issued as a result of the Guantanamo Bay accident, discussed above under "NTSB Recommendations" and the FAA's belief that other flying for a certificate holder such as training flights for a 121 or 135 certificate holder may cause both short term and cumulative fatigue which may adversely effect that flight crewmember's flight duties performed under parts 121 and/or 135. This would include flying for more than one part 121 and/or 135 certificate holder.
​

 

[gunfyter]

What is Rest?

8) Rest period means a period of time free of all restraint or duty for a certificate holder and free of all responsibility for work or duty should the occasion arise. A flight crewmember is not "free of all restraint" or "free of all responsibility" if that person must, among other things, accept phone calls, carry a beeper, or contact the air carrier. If a flight crewmember is not serving in assigned time, reserve time, standby duty or a duty period, that crewmember would be in a rest period.
​

 

[FLIIFAST]

Does everyone agree 14 hours is a drop dead...go to the hotel duty time?

 

[G100driver]

8) Rest period means a period of time free of all restraint or duty for a certificate holder and free of all responsibility for work or duty should the occasion arise. A flight crewmember is not "free of all restraint" or "free of all responsibility" if that person must, among other things, accept phone calls, carry a beeper, or contact the air carrier. If a flight crewmember is not serving in assigned time, reserve time, standby duty or a duty period, that crewmember would be in a rest period.

​

Gunfighter, while agree whole-heartedly with you, this looks like a Union contract or a 121 reg. Not the loosy, goosy BS world of 135.

 

[pilotyip]

flfast 14 is not a drop dead by the present regs, if is reasonably planned and there is delay you fly if you feel fit for flight.

 

[G100driver]

Pilotyip is correct. I cannot find the NBAA link to the legal opinion written by some FAA lawyer defining this, but this is correct.

You cannot PLAN to go over 14 hours. However, if your pax are stuck in rush-hour traffic, a TS causes a delay, or circumstances beyond your control you can legally take the flight.

If someone could post the link, it would clear up a lot of confusion.

 

[AngelKing]

Gunfyter, what you are quoting is true. You are just not quoting all of it. You are leaving out the part it says about "delays beyond your control"


AK

 

[Makesheepnervus]

Does everyone agree 14 hours is a drop dead...go to the hotel duty time?

Absolutely, no exceptions!

Search the regs; there are no exceptions ("unforseen circumstances", etc.) to the duty/rest rule. You must always have had 10 hours of uninterupted rest in the past 24 hours, no exceptions.

 

[charter dog]

Absolutely, no exceptions!

Search the regs; there are no exceptions ("unforseen circumstances", etc.) to the duty/rest rule. You must always have had 10 hours of uninterupted rest in the past 24 hours, no exceptions.

Hello, my fellow XJ grad!

That's what the regs say. FAA legal says something else. This has come up at my present job, unfortunately. The CP has distributed a paper copy of an FAA legal council opinion on this matter dated Aug, 1993. Without scanning and posting all 5 pages of this document, I'll just summarize. This applies only to operations conducted under the provisions of 135.267(b). (no regularily assigned duty periods, as it is with all of us charter dogs.)

The upshot is this:

If the planned duty period is realistically expected to be completed within 14 hours, then circumstances beyond the control of the operator and crew such as wx, late pax or cargo, mechanical difficulties or ATC delays which might cause the 14 hours to be exceeded do not require that the flight be terminated under the provisions of 135.267(b). Legal to start, legal to finish. 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.

So the bottom line is that the rules allow planned duty time to be exceeded under the above stated circumstances unless either the flight crew or operator believe that continued operation beyond the scheduled period would violate the provisions of 91.13 (careless or reckless operation) As ever, the final decision rests on the shoulders of the PIC when the company wants you to go. Charter operators, even the biggest and most illustrious, are sometimes unable to look beyond the immediate need to satisfy the customer. The burden then rests sqarely on the shoulders of the flightcrew and in particular, the PIC. I will do what is right, and then find a way to rationalize it with the office! Considering the ramifications of 91.13 is a start. Responsible scheduling and consideration of crew fatigue issues on the part of the operator would be even better. Meanwhile, charter is what it is!

"This is the business we have chosen" (Hyman Roth, The Godfather Part II)

Best,

 

[pilotyip]

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.

 

[Syncit]

All in all when is it not planned, 14 hrs is a long day as is. Do not agree to this. Hopefully, your people will understand.
pilotyip, u r a dork!

 

[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