October 31, 1990 (#2)
INFORMATION: Interpretation of Rest Periods Required under Part 135
Acting Assistant Chief Counsel,
Regulations and Enforcement Division, AGC-200
Manager, NE-FSDO-03
This is in response to your memorandum of April 24, 1989, requesting an interpretation of Part 135 flight time limits and rest requirements. Your memorandum, which was originally sent to counsel for the New England region, was forwarded to us on May 4, 1989. We apologize for the delay in responding to your inquiry, and thank you for your patience.
In your memorandum, you state that there are companies in your region which hold more than one type of Federal Aviation Administration (FAA) certificate. For example, the same company may hold an air carrier certificate, operate flight schools under Parts 61 and 141 of the Federal Aviation Regulations (FAR), and operate an executive flight department under Part 91. You also tell us that in many cases, the same pilots are used by the company for all their different flying functions.
Question #1
Your first question concerns paragraph (d) of Section 135.267, which provides as follows:
"Each assignment under paragraph (b) must provide for at least 10 consecutive hours of rest during the 24-hour period that precedes the planned completion time of the assignment."
You ask whether a pilot for a company holding more than one type of certificate can fly company people under Part 91, flight instruct for the same company under Parts 61 and 141, and then count these types of flying time as rest within the meaning of paragraph (d) of Section 135.267.
Answer
The answer is no. A rest period cannot be infringed upon by the performance of any duty for the certificate holder.
For purposes of the Part 135 rest requirements, time spent engaging in such activities as flying company people under Part 1 and acting as flight instructor under Parts 61 and 141 would be considered "other commercial flying."
"Other commercial flying" means any nonmilitary flying as a required crewmember, other than in air transportation, for which the crewmember is paid for his or her services. The general rule regarding rest requirements is that if the other commercial flying is assigned by the certificate holder, it may not be conducted during a required rest period.
In the question you have presented to us, the same company or organization which is the Part 135 certificate holder is also assigning the other commercial flying. Although it may be wearing a different hat at the time of the assignment - that is, that of operator under Parts 61, 91, or 141 - it is still the pilot's employer in Part 135 operations.
We cannot accept the argument that the company is not acting as a Part 135 certificate holder when it assigns the pilot the other commercial flying time. To do so would be to permit the rest requirements of the FAR to be subverted. As you know, the rest requirements have an important safety purpose. They are intended to eliminate fatigue, and all the danger fatigue causes, as a factor in air transportation.
Question #2
Your second question, which also involves paragraph (d) of Section 135.267, is whether office functions associated with the Part 61 or Part 141 flight school or the Part 91 executive flight department can be assigned to a pilot by the company holding various certificates during rest periods required by Section 135.267(d).
Answer
The answer, which can be found in Section 135.263(b), is no. Section 135.263(b) contains rules which apply to all certificate holders, and provides as follows:
"No certificate holder may assign any flight crewmember to ANY duty with the certificate holder during any required rest period." (Emphasis added.)
Section 135.263(b)'s reference to duty is all-inclusive. By the plain terms of the regulation, a rest period cannot be infringed upon by the performance of any duty for the certificate holder, including office duty.
Question #3
Your third and final question concerns paragraph (f) of 135.267. Paragraph (f) provides as follows:
"The certificate holder must provide each flight crewmember at least 13 rest periods of at least 24 consecutive hours each in each calendar quarter."
You ask whether the company which is the certificate holder can assign office duties associated with the flight school or the executive flight department during the required rest periods.
As stated above, Section 135.263(b) provides that:
"No certificate holder may assign any flight crewmember to ANY duty with the certificate holder during any required rest period." (Emphasis added.)
Once again, since this provision's reference to duty is all-inclusive, a rest period cannot be infringed upon by the performance of any type of duty for the certificate holder, including office duty.
This interpretation has been coordinated with the Air Transportation Division of the Flight Standards Service at FAA Headquarters. We hope that it has satisfactorily answered your inquiry.
/s/
Donald P. Byrne
