Flight time limits

[A Squared]

I wanted to add to my earlier comment about a POI "interpreting" the flight thme limits to "allow" a ferry flight before a revenue leg which would otherwse exceed flight time limits.

It is not legal. Your POI has no authority to make that "interpretation". FAA policy on the issue is well established, and there is no ambiguity, question, or grey area. If you're on a ferry flight, that flight time must be considered for any subsequent revenue flight. Period. With something this black and white (and obvious), "My POI said it was OK" is probably *not* going to protect you in an enforcement action.

I've posted below two official letters of interpretation from the FAA's Office of Chief Counsel which address the same question for 135 and 121 operations. They are pretty clear, and if your POI is telling you differently, he is wrong.

FAA Legal Opinion:
April 9, 1993
Andrew Donahue

This is in response to your request for an interpretation dated August 6, 1992.

You ask what conditions must be met for a flight to be conducted under FAR Part 135 versus Part 91. You give the following example:

A flight is dispatched from Memphis to El Paso to pick up freight and deliver to Kansas City. The flight then returns to Memphis. The leg from Memphis to El Paso is empty. The leg from El Paso to Kansas City carries cargo. The leg from Kansas City back to Memphis is empty.

You then ask:

If the "assignment" is to fly from Memphis to El Paso to Kansas City, then back to Memphis, are the flights from Memphis to El Paso, and from Kansas City to Memphis considered operations conducted under Part 91 or Part 135?

Additionally, you state:

The company will sometimes dispatch a flight with enough duty time to get to a destination (i.e., Memphis to Newark, NJ) and then want the crew to Part 91 the aircraft back to Memphis or "re-position" the aircraft back to its base. Can this be done simply because the aircraft is empty, or must other conditions be met (i.e., non-revenue versus revenue)?

Section 135.1 provides in pertinent part that:

(a) Except as provided in paragraph (b) of this section, this part prescribes rules governing -

(3) The carriage in air commerce of persons or property for compensation or hire as a commercial operator...

(b) ...this part does not apply to - ...

(3) Ferry or training flights....

A ferry flight is defined in the Airman's Information Manual (AIM) glossary as:

- A flight for the purpose of:
1. Returning an aircraft to base
2. Delivering an aircraft from one location to another

The issue is whether the Part 135 flight or "assignment" is completed when the cargo is unloaded at the destination airport. The purpose of the flight conducted under Part 135 is to deliver freight to the destination airport. The ferry flight to return the aircraft to the base of operations changes the purpose to re-positioning the aircraft under Part 91. A flight conducted for the purpose of re-positioning an aircraft under Part 91, after the completion of an assigned flight conducted under Part 135, cannot be considered a new assignment under Part 135 and, therefore, is not subject to the flight time limitations and rest requirements of Part 135.

The general rule with respect to flight time limitations of Part 135 is that any "other commercial flying" (e.g., flights conducted under part 91) must be counted against the daily flight time limitations of Part 135 if it precedes the flight conducted under Part 135. However, if the Part 91 flight occurs after the Part 135 flying, the Part 91 flight is not counted against the daily flight time limitations of Part 135.

The first leg from Memphis to El Paso delivers an aircraft from one location to another. It repositions. It is a ferry flight conducted under Part 91. However, because it precedes a Part 135 leg, flight time accumulated on the first leg must be counted toward Part 135 flight time for the 24 hour period.

The second leg from El Paso to Kansas City is a cargo flight conducted under Part 135.

The third leg from Kansas City to Memphis is returning the empty aircraft to home base. It is also considered a ferry flight conducted under Part 91. Because the flight time accumulated on the third leg occurs after the Part 135 flight is completed it does not count against Part 135 flight time limitations for that 24 hour period.

All Part 91 commercial flight time is counted against the pilot's quarterly and yearly flight time limitations. However, please note that if, for example, the pilot has reached the yearly flight time limit for Part 135 operations, the pilot can nonetheless continue to fly under Part 91 in that calendar year. "Other commercial flying" under Part 91 is counted to the calendar year limit only if a subsequent Part 135 operation is conducted in that calendar year. We enclose a copy of an interpretation dated October 9, 1990, issued to Mr. Steve Wolff. That interpretation concerns Part 121 operations, but the analysis concerning yearly flight time limitations and other commercial flying is applicable here.

The general rule regarding rest requirements is that if the Part 91 flying is assigned by the certificate holder, it may not be conducted during a required rest period. Since your example involves a Part 91 operation, required by the certificate holder, it may not be conducted during the required rest period and, therefore, may affect the availability of the crew for the next Part 135 operation.

You also ask a question regarding rest periods. You state:

(deleted this portion as it dealt with rest periods and was not relevant to the question at hand)


This interpretation was written by Thomas Kiely and Arthur E. Jacobson of the Operations Law Branch, AGC-220. It has been reviewed by Joseph Conte,
Manager of the Operations Law Branch and it has been coordinated with the Air Transportation Division of the Flight Standards Service .

Sincerely,

Donald P. Byrne
Assistant Chief Counsel
Regulations and Enforcement Division

Now a letter addressing the same question in Part 121 operations:

FAA Legal Opinion:
"January 13, 1992
(no name given)

This is in response to your request for a legal interpretation, based on a request from Hawaiian airlines, whether that carrier's interpretation of the "12 in 24" role in subsections 121.521(a) and 121.523(a) of the Federal Aviation Regulations (FAR) is correct. Hawaiian airline's position is that a flight crew may fly up to 12 hours in duration under Part 121 and then ferry an empty aircraft under Part 91. For the reasons stated below, Hawaiian airline's position is correct.

The applicable sections of the FAR state:

FAR 121.517 states:

No airman who is employed by a supplemental air carrier or commercial operator may do any other commercial flying, if that commercial flying plus his flying in operations under this part will exceed any flight time limitation in this part.

FAR 121.521 states:

(a) No supplemental air carrier or commercial operator may schedule an airman to be aloft as a member of the flight crew in an airplane that has a crew of two pilots and at least one additional flight crewmember for more than 12 hours during any 24 consecutive hours.

FAR 121.523 states:

(a) No supplemental air carrier or commercial operator may schedule an airman for flight deck duty as a flight engineer, or navigator in a crew of three or more pilots and additional airmen for a total of more than 12 hours during any 24 consecutive hours.

FAR 121.521(a) and 121.523(a) limit an air carrier from scheduling a crewmember for more than 12 hours during any 24 consecutive hours. FAR 121.517 prohibits a crewmember from doing any other commercial flying, if that commercial flying plus their flying in operations under Part 121 will exceed any flight time
limitation in Part 121.

A Part 91 ferry flight constitutes "other commercial flying." "Other commercial flying" however, is considered only when determining whether a subsequent Part 121 flight may be conducted. Thus the time spent on a ferry flight flown between two Part 121 legs would be counted towards the flight time limitations under FAR 121.521(a) and 121.523(a). If, as in this case, Part 121 flying does not follow the "other commercial flying," then the Part 121 limitations applicable to a period of 24 consecutive hours do not apply.

We hope this interpretation satisfactorily responds to your inquiry.

Sincerely,

Donald P. Byrne
Assistant Chief Counsel
Regulations and Enforcement Division"

 

[100LL... Again!]

I would suggest that flying your own personal cessna 150 for 20 hours immediately before reporting for a 121 leg is legal, but unsafe. The only prohibition that I can think of is careless/reckless. If you are too fatigued to fly safely, you are in violation. Therefore, the determination is left to YOU to make a decision. Would that we were given more altitude in some areas.

Do you REALLY want the FAA to write such thorough rules that essntially nothing becomes possible EVER? Be glad that the rules are sometimes vague and that so much is left to us as PICs.

The last thing I want is a rule book that is 12 inches thick, but has an answer for every question ever asked.

 

[avbug]

I understand the regs completely! They are a vague and anybody who has been around aviation knows that if you ask 3 feds, you will get 3 different answers. Thus, we always ask our POI for clarification, which you will hardly ever get in written form. We know how to exploit every loop hole or at least make sure they don't exploit us.

As far as flight duty time stuff, I will go one step further. I was in ELP one day and happen to be talking to a guy that turned out to be with the ABQ FSDO (never seen feds in jeans before). As this subject came up he pretty much agreed with our and our POIs take on this. He did add, what you can legally do is not always what is safest and that of course you should use good judgement before accepting any flight assignment.

For someone that "understands" the regulation so well, you have apparently missed the basic fact that anything you get at the FSDO level, in writing or verbal, from your POI or otherwise, carries no weight and is in no way defensible under the regulation. The "interpretations" you've received from the various FSDO-level personnel carry the weight of a personal opinion, nothing more...in other words, they mean nothing. That the FAA doesn't understand the regulation, and often doesn't apply it correctly, is no excuse for you to not understand it correctly. It's also not exactly news, or rocket science.

You know how to exploit every loophole, do you? Aren't you just the thriving ball of experience. Hardly a professional...but then what do we expect from the man that ran his own maintenance shop for five years, all the while paying a gaggle of mechanics that worked three hours, for eight hours of work. Not the brightest apparently, either.

I've read a few of your posts here, and I think you're the same private pilot character that flies his own airplane into ice and brags about it, threatens members of the site, and keeps coming back under a different name. One who others herein claim they have "owned" whatever that may mean.

Depending on the specific regualtion (again, you failed to cite a specific circumstance...can you do that?), the 24 hour period in which we look for flight time may be a callendar day for a crew with regularly scheduled duty under 135, or it may be a 24 hour look back period. The way in which personal flying before and after that period works with the regulation is directly tied to the type of operation.

Personal flying done before your duty period begins doesn't affect your flight totals for the day, but any commercial flying (including flight instruction, according to the FAA) does affect those totals. Unless you're a regularly scheduled crewmember, in which case the sliding 24 hour ruler doesn't apply, but the callendar day does.

You wanna fly your cherokee to work and then go to work, fine. Legally you can do that. Unless it becomes an issue with rest or fatigue, and you put yourself in a situation in which you might be accused or careless or reckless behavior on the ground or in flight. The purpose of the regulation's under discussion is specifically to limit the flying you can do commercially. Period. If you can legally fly more and do so, but compromise safety, you are then beholden to regulations addressing safety. Each in it's turn.

No need to seek out loopholes. Compliance with the regulation is simple, as is understanding the regulation. Those who seek to exploit the regulation at ever turn need to have their own professionalism examined...but our friend 7,100 hour learjet wannabe without the ATP...you're no professional, nor are you who or what you claim to be...that much is clearly in evidence. Attack away, mate.

 

[Lear Wanna Be]

I am done with you. You obviously live in your own reality. Seems you only have read the words that you (master of all that is holy) have rambled on about. It is clear that you think you are all of that. Just look at the additional info you have provided on yourself, A/C flown: all, Ratings: all, Civ/Mil: N/A, TT: N/A. You surely are one of the less desirables discussed in the thread about tools that others here have flown with. You don't happen to fly a Falcon at your normal job do ya?

Again, it is unfortunate that you have not helped Flint4xx is his original topic. Hijacked yet another topic (you know what I am talking about). Your personal insults I am sure have been aw inspiring to the other Alpha wanna bees. Perhaps you could show some respect and keep your non-sense out of the forum and via PMs. By the way, the feds are happy to have wonderful discussions with pilots/operators. They often say, "Well that is something for the lawyers to argue about." I'm sure you know more than me (and everyone else), but it seems that carless and reckless is usually tacked onto another violation. Have not read about too many if any that were just C&R.

To put this to bed, Flint4xx, as I am sure you already know and were just trying to have a nice discussion about, the regs under 135-121 are more there to protect the general public. The feds are not overly concerned if you kill yourself. The CFRs can't regulate everything and all the possible circumstance that can happen. There is no substitude for sound judgement and good training.

 

[heph224]

Don't worry, when the FAA revises the 135 and other regs, hopefully they will make the duty and flight time regs more realistic than they are now.

 

[A Squared]

I'm sure you know more than me (and everyone else), but it seems that carless and reckless is usually tacked onto another violation. Have not read about too many if any that were just C&R.

So, exactly, how many have you read about? Or even approximately? I ask because 91.13 is a fairly common stand alone violation, so It raises the question, have you not read about many enforcements and you're just talking out your @ss?

 

[Lear Wanna Be]

So, exactly, how many have you read about? Or even approximately? I ask because 91.13 is a fairly common stand alone violation, so It raises the question, have you not read about many enforcements and you're just talking out your @ss?

Source? Show me. Not that I have read a lot of enforcement action letters. Just the occasional one in a trade magazine or one attached to an accident investigation. But I do know they tack it onto just about everything these days. It is also the first thing they drop in the bargaining process. Under the true letter of the law, it is hard to be careless and reckless. Straight out of an FAA Great Lakes region attornies mouth.

 

[A Squared]

Source? Show me.
Under the true letter of the law, it is hard to be careless and reckless. Straight out of an FAA Great Lakes region attornies mouth.

Absolute Horse$hit. neither you or your attorney friend know what you're talking about. Go to NTSB.gov and go to the orders and opinions section do a search for 91.13. I guarantee you will find *plenty* of stand alone 91.13 violations. And those on the NTSB site are those that have been appealed and most are sustained. So yes, 91.13 is often a stand alone violation and it does stand up on appeal

Do a little research before you start running your mouth....or keyboard as the case may be.

 

[Lear Wanna Be]

Absolute Horse$hit. neither you or your attorney friend know what you're talking about. Go to NTSB.gov and go to the orders and opinions section do a search for 91.13. I guarantee you will find *plenty* of stand alone 91.13 violations. And those on the NTSB site are those that have been appealed and most are sustained. So yes, 91.13 is often a stand alone violation and it does stand up on appeal

Do a little research before you start running your mouth....or keyboard as the case may be.

Let me see here, did you actually look at the case history or did you just run your keyboard as you like to say? Going back to 1/1/04 there are 1158 orders entered into the record that went to trial. 228 of those had 91.13 attached to the order. Of those, about 19 (+/- a couple) are 91.13 violations alone. Of those 3 are appeals that required another entry for the same case. Of the other 16 that were left, there are 2 for leaving the aircraft while it was running, 1 for using the wrong w&B forms on a B727, 1 for running out of fuel, 1 for making a precautionary landing on a farm field cause the guy thought he was going to run out of gas, 1 for rolling off the runway on landing, 1 for class B penetration without authorization, 1 guy should have seen the a fence before he hit it on take-off, 1 for a landing in a helo that scared horses, 1 for poor pre-flight left fuel cap off, 1 for exceeding aircraft's capabilites, 1 for landing short of a runway, 1 for landing on a taxi-way, 1 for a gear up, 1 for landing at the wrong airport, and 1 for damaging cars with jet blast. My guess is that 1/2 of those 16 started with another charge that was dropped. So 8 or so in 1158 cases is not a lot IMHO. And 4 of them where dismissed.

Now, before you go attacking what you think I do know or what I don't know, let me ask you; have you ever had enforcement action started against you? Have you ever gone through the appeal process? Have you ever fought the FAA for 16 months on an enforcement? Have you ever sat across the table from FAA head legal council with the investigating POI on the conference call? And if you have ever done this, did the FAA actually back down on a Presidential TFR violation (yes, the one they don't ever back down on because they have to answer to the Secret Service), which yes included 91.13....just days before trial? Now if you can still answer "yes", then you and I are just a couple pilots from a very small group that can say that. Yes I learned a lot. I thank AOPA legal department, the regional AOPA rep, my own POI, a couple attornies, and Kylie over at DUATS for helping prove that I did brief and there was no mention of a TFR. Now I admit that I am no expert on legal matters, but I would also say that I have had more experience with these matters than most pilots and I hope nobody here has to go through what I did. Very scarey when it happens to you. Oh, the NASA form was filed right away so no suspension. Fought it on principal and the fact that I did not want a violation(ever).

 

[avbug]

My guess is ...

That pretty much says it all.

Wanna Be

That says the rest.

just days before trial

Trial? What trial? Do you mean initial appeal before an ALJ during a hearing? That's no "trial."

Now, before you go attacking what you think I do know or what I don't know, let me ask you; have you ever had enforcement action started against you? Have you ever gone through the appeal process? Have you ever fought the FAA for 16 months on an enforcement?

Now that you ask...yes. Twice. Succeeded...twice.

...fought the FAA for 16 months... just days before trial

Hmmm.

Now I admit that I am no expert on legal matters

My, we have a penchant for understantement, don't we? Fear not; the first step is admitting it.

No expert on duty times or maintenance either, so it would seem. Certainly no pre-requisite to be a "wanna-be."

Fought it on principal and the fact that I did not want a violation(ever).

On principal? The man who brags about exploiting loopholes and paying mechanics who work three hours for an eight hour day? What principal would that be, exactly?

 

[A Squared]

WHile I'm sure that you find the fact that you were the subject of an enforcment action for a TFR violiation absolutely fascinating, it really has absolutely no relevance.

By your own research there have been 16 stand alone enforcement actions of 91.13 in the last two years which have been appealed to the NTSB. Those are only those which have been appealed to the NTSB. That does not count those in which the pilot just accepted the violation without fighting. that doesn't include those in which the pilot appealed the finding to a law judge, then accepted the ALJ's finding. Remember, the opinions and orders you read are at the second level of appeal. Your accounting of the particulars of the cases you read is enthralling, but it completely misses the point. The point is, regardless of the reasons, the FAA can and does bring action solely for careless and/or reckless operation.

 

[100LL... Again!]

One sidebar is that I always though it a bit of a contradiction that one could be charged with careless AND reckless.

True they are somewhat related, but often one who is careless is not necessarily reckless.

And one who is reckless is way beyond careless. It's like charging a mass murderer with violating a noise ordinance after he goes on a shooting spree.

 

[Lear Wanna Be]

AVBUG...you sure are good at using quotes! Your personal attacks are among the best on the board. Classic I would say. You and A squared are so good at it, but then you are one in the same...just have two avatars, right? Do you get confused sometimes? Is that why you answer questions that are asked of A sq.?


Now for your A squared persona, It is very relavant, goes towards the experience I have had working with the feds on legal matters. I learned a lot. Among them, what little rights we pilots have. We have the burden of proof in "hearings' and how the FAA will except "hearsay" as evidence when it favors them. It is actually kind of scarey if you really think about it. Now, I have given you a 16 examples of cases going back to 1994. How about you? Where are your facts?

100LL, that was kind of the point of the statement I made earlier. You more or less said the same thing as the FAA guy that I spoke of earlier. Thanks and I am being sincere about that.

Now back to the point. The regs as we all know are very vague in a lot of areas. Perhaps that is good. When flying for hire the Ops Manual only makes it more restrictive and in many ways clears up any vagueness. Avbug has managed to escape two violations apparently, why he didn't learn his lesson the first time is hard to understand, but I suppose it has something to do with his hazardous attitude. In some way he or his attorney probably argued as to the vagueness of the reg. Might not be apparent, but in some shape or form that is what it came down to.

 

[A Squared]

Well, if you want to believe that I'm Avbug, have at it. No skin off my nose.

Among them, what little rights we pilots have. We have the burden of proof in "hearings' and how the FAA will except "hearsay" as evidence when it favors them. It is actually kind of scarey if you really think about it.

Umm, yeah, I wouldn't disagree with you on that much. That doesn't make it relevant to the question of whether or not 91.13 is used as a stand alone violation.

Now, I have given you a 16 examples of cases going back to 1994. How about you? Where are your facts?

Facts? what sort of facts do you want? we've already determined through your numbers that 91.13 *is* used as a stand alone violation. Incidentally, why is it that suddenly it's going back to 1994 now, when in an earlier post you said 1/1/2004? Cooking your data to make it look better?

 

[midlifeflyer]

Well, if you want to believe that I'm Avbug, have at it. No skin off my nose.

...and, as much as I hate to say it, makes wannabe's self-portrait seem even more in line with avbug's description of him.

Wannabe? There really is a point at which saying more simply "removes all doubt."