Question about re-position flt’s

[pilotyip]

Part 91 tail end ferry is all duty, it is all flight time, Nnne of it counts toward rest when computing how much rest is needed until you are full legal again. That is ready to accept 16 hours duty and 8 hours of flight time in 121 ops. Many times the crews perfer 91 tail end ferry back to YIP, as opposed to going to bed in Jackson, MS and then waiting to days on the road for the next 121 trip. Better to wait at home.

 

[A Squared]

How does that figure into rest? If you had to fly the next day for 121 or 135 and needed your lookback rest, would the 91 leg count as duty time? Or just not rest time? Or something you did on your time off just because its really fun and you want to see the company succeed. Besides, you hate sleep anyways.

135.263(c) and
121.471(4)(f)

say the same thing... 'transportation not local in character.... not considered part of a rest period'... (i.e. a repostion or 91 tack-on flight). And if it's not rest, then isn't it duty? I'm really trying to get this down. It's been coming up quite a bit lately.

Grandma:

Pilotyip is corract, it would not count toward any required rest. Y9ou would still need to be allowed whatever rest is required before flying revenue flights again. Here's 2 FAA Chief Counsel interpretations which deal with the subject:

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"

 

[A Squared]

Ok, I'll admit I'm wrong. Regardless, how do you think it will play out in a court of law?

Your decision to fly would come under heavy scrutiny

And do you think the FAA Chief Counsel will be anywhere to be found if a horrible situation arises?

Nope, don't expect any help from that quarter.

I'm not trying to flamebait. I think I'd agree with yip that calling fatigued is the way to handle it.

Not taken as flamebait, those are good questions to think about. the bottom line is it's a part 91 flight and you don't have 121 limits to fall back on. So, you're on your own to determine your own fitness to complete the flight safely, just like any other Part 91 flight. If you're not fit, you have a responsibility to refuse the flight.

 

[Say Again Over]

FWIW, my company issues a different call sign for any unusual flight such as maintenance, charter, training, position ferry etc. Flights may be dispatched under 91, however provisions of 121 pertaining to flight crews shall be applicable.

 

[mar]

Don't hold your breath, my friend.

I bet it would cost a $hitload in lawyer fees too. Maybe the company would cover it......

I've got one word for you: Not in a million friggin' years.

I knew some check airmen who falsified some training documents. The FAA found out during a routine (?) base inspection.

Well, you know how important paperwork is to the FAA, right?

One more word for you: They got hung out to dry (complete certificate revocation) and the company never batted an eyelash.

 

[A Squared]

I've got one word for you: Not in a million friggin' years.

I knew some check airmen who falsified some training documents. The FAA found out during a routine (?) base inspection.

Well, you know how important paperwork is to the FAA, right?

One more word for you: They got hung out to dry (complete certificate revocation) and the company never batted an eyelash.

Hmmm, I think that we've established that mar's counting skills are deteriorating rather rapidly. At the beginning ofh the post one = 6, by the end of the post one = 16. Regardless, you're right, DOn't ever count on your company to back you up when you get caught violating a rule to benefit them. They just might self disclose and throw you under the bus to protect themselves. Not that I've become cynical about airline management or anything.

 

[CFIse]

There seems to be a lot of confusion here. A flight is either Part 121 or Part 91 - but you don't get to choose. It's status is determined by any number of factors, most of which we're familiar with.

The DIFFERENCE is that you may CHOOSE to operate under what you may perceive as stricter operating regulations. So a Part 91 flight may be conducted AS IF it was a Part 121 flight - but it's still Part 91 - and for example the FAA can't bust you for shooting an approach without the required Part 121 visibility.

It doesn't matter that the release is a Part 121 release, or you signed it, or anything, if there are no revenue passengers or cargo on board it's Part 91, it CANNOT be Part 121. Your GOM may tell you to treat it as a Part 121 flight, but it's a Part 91 flight regardless.

 

[Mr. Irrelevant]

I should have made a tounge in cheek reference to the my comment about receiving company support. I would think it would be a cold day in hell before management ever supported a pilot in a perceived violation of the policy we've been talking about.

I think CFIse explained it the way I see it. A 121 operator is a 121 operator no matter what they believe for a two or three hour span of time. So work rules and regulations regarding duty time, flight and rest time should still apply although the letter seems to put the duty and flight limitations in a different light(or darkness).

The assistant chief counsel's letter seems just to be a document written for companies to be able to place aircraft where they want to and utilize crews at times they wouldn't otherwise would not be able to. It isn't a legal judgement by a court of law. The words that I'm most concerned with are "commercial flying". They say in the letter that Part 91 ferry flights to return a company aircraft at the end of the day but not for an early repo for your first trip of the day are not considered to be commercial flying simply because it's under Part 91. Yet, as pilots operating that flight, the flight time counts against calender limitations and we're getting paid for it. Going to be really hard to convince a jury or judge or even the FAA that you weren't engaged in "commercial flying".

Mr. I.

 

[Say Again Over]

There seems to be a lot of confusion here

No I believe there is only one person confused. Please tell us how it really is.:nuts: :laugh: :laugh: Please read post 24 again.

 

[A Squared]

I think CFIse explained it the way I see it. A 121 operator is a 121 operator no matter what they believe for a two or three hour span of time. So work rules and regulations regarding duty time, flight and rest time should still apply although the letter seems to put the duty and flight limitations in a different light(or darkness).

Look, I really don't understand why you are so resistent to the concept of a Part 91 flight Think about a maintenece check flight. It isn't legal for that to be a part 121 flight, Part 121 would prohibit using an unchecked airplane after a major repair, modification, etc. So it has to be a Part 91 flight. Training flights are the same way. My company trains and checks in hte airplane. We do all sorts of things which would be prohibited under Part 121. Steep turns, stalls, emergency procedures, we even shut down engines. That is another part 91 flight. why is it so hard for you to accept that a company which owns an airplane, may have it's employees fly that airplane from point A to point B under part 91, provided that there is not carriage of persons or property for hire?

Show me the regulation which you think requires this flight to be done in accordance with Part 121.

The assistant chief counsel's letter seems just to be a document written for companies to be able to place aircraft where they want to and utilize crews at times they wouldn't otherwise would not be able to. It isn't a legal judgement by a court of law.

Well, actually, yes, it is in the FAA's system of *justice*. A letter of interpretation from the Chief Counsel is about as good as it gets as far a legal guidance. The NTSB judges are required to accept the FAA's interpretation of it's own regulations (with certain limited exceptions) FAA counsel is the entity which pursies enforcements, so if an interpretation has been issued by the head of FAA counsel, it's a very good indication of how that regulation will be enforced.

Look, mostly your objections seem to be centered around "I don't want it to be that way" I can sympathize with it. Tail end repos are no fun. However you really don't have anything to back up your position.

Show me the regulation which woud require a non-revenue repositions flight to be conducted in accordance with Part 121.

Short answer, you can't do it. It doesn't exist. Positioning an airplane under part 91 is perfectly legal, and it should be. Part 121 and part 135 exist to protect the fare paying public. Period. Neither the fare paying public nor thier property are aboard a non-rev repositioning flight, so the provisions of part 121 and 135 are not applicable.

That it the way our regulations are structured.

Also educate yourself a little on the significance of a Chief Counsel opinion. It's not unassailable, carved in stone law, but it's about as close as it gets in this situation.