On-call and Rest for Part 135

SrFnFly227

SrFnFly227

Well-Known Member
We have all heard stories about companies operating under a 24 hour on call schedule. We have also all read forum posts about how these schedules are illegal. I have done some research over the last few days and feel that I should share my findings here. Hopefully the following information is helpful to more than a few of us.

The following is from the July 2000 ruling on the case between Aviators for Safe and Fairer Regulation vs FAA. Aviators "is a trade association of about 50 on-demand air charter companies." They brought case against the FAA after a June 1999 "notice of enforcement policy" from the FAA stating that the FAA would begin enforcing the rest rule of 135.267(d) with reserve not counting as rest if "the flight crewmember had a present responsibility for work in that the flight crewmember had to be available for the carrier to notify of a flight assignment." Aviators argued that this was a change of policy. The court decided that the policy of the FAA had been consistent going back to a 1949 letter from the acting general counsel of the CAA and that the FAA could enforce the rest rules as per their clarification from the 1999 "notice of enforcement policy".

There is a lot more addressed in the court decision and it is an interesting read. Here is a link to the court case. http://www.ca1.uscourts.gov/pdf.opinions/99-1888-01A.pdf

Next are the letters of interpretation from the FAA's Office of the Chief Council. The first that I will provide is the May 22, 2009 letter to Mr. Daniel Berry. I address this one first because I think it is the most relevant to 24/7 on call operation. In it is presented the following scenario about a part 135 certificate holder who conducts unscheduled operations: "Pilots are on-call 24-hours a day during the on call period. When on-call, a pilot is required by the certificate holder to answer the phone if called by the company dispatch department and to immediately report for flight duty. The pilot is not informed in advance when his rest periods will take place during the seven-day on-call period. Rather, the certificate holder considers the pilot adequately rested if the dispatch department does not require the pilot to report for flight duty during any given 10 consecutive hours." In their answer to the scenario, the chief counsel states the following: "Although 135.267(b) does not contain an explicate duty time limitation, it appears the 24-hour on-call situation you present would not meet the rest requirements of Part 135.267(d). Section 135.267(d) requires that flight crewmembers must have at least 10 consecutive hours of rest during the 24-hour period preceding the planned completion time of the assignment made under Part 135.267(b). A rest period must be (1) continuous, (2) determined prospectively (i.e., known in advance), and (3) free from all restraint from the certificate holder, including freedom from work or freedom from present responsibility for work should the occasion arise." "In this instance, because the rest period is not known in advance, nor free from all restraint by the certificate holder, the 24-hour on-call schedule does not meet the rest requirements of Part 135.267(d)."

Here is a link to the Berry letter. http://www.faa.gov/about/office_org...0/interpretations/data/interps/2009/Berry.pdf

In the course of the Berry letter, and many others, there is a reference to a letter to Mr. Jim Mayors dated March 2009. Mayors asks several questions in this letter, but the two that I think are most important are whether there is a difference in what constitutes "rest" or "duty" between Part 121 and Part 135, and whether duty could be considered to start when a flight assignment is generated by contacting the pilot. The answer to the first question is as follows: "The FAA's interpretations of what constitutes "rest" or "duty" apply to both Part 121 and Part 135." The answer to the second question is a bit longer. It is as follows: "We have consistently interpreted that if a standby or reserve pilot has a present responsibility to work if called, then he is on duty because he is not free from restraint. Thus, the time a flight crewmember is on reserve or standy status, with an obligation to report for a flight assignment if called or paged, is not rest."


The letter goes on to address who is responsible for meeting the requirements of the regulations and then gives three specific scenarios which are answered. Here is a link to the Mayors letter. http://www.faa.gov/about/office_org.../interpretations/data/interps/2009/Mayors.pdf

The last letter that I provide is only to provide evidence that the FAA still sees these as active and controlling. This a letter from May 2012 to a First Officer Scott Kinder. In this letter, a reference to the Mayors letter is made stating that the "freedom-from-obligation finding is to be applied to all rest periods, no matter which section of the regulations a required rest period falls under."

Here is a link to the Kinder letter. http://www.faa.gov/about/office_org.../interpretations/data/interps/2012/Kinder.pdf
 
The problem with this all seems to be that some companies out there feel like 24/7 on call is legal despite these letters. They claim that the FSDO knows how they operate and that it is legal. They claim that the letters are only opinions and are not meant to be taken as law. I wrote The Office of the Chief Counsel and asked them directly. Here is my email to them:

I am writing to gather a little more information about the letter from May 22, 2009 to Mr. Daniel Berry. In this letter, you address an unscheduled Part 135 carrier operating under a 24 hour on call schedule. Pilots are not told in advance of rest, but are rather determined to be rested if they were free from flying for the preceding 10 hours. You rule that this schedule is in violation of Part 135.267 because the rest was neither known in advance nor free from all restraint.

I understand the ruling in this case, but have a question about whether or not this letter would be considered regulating, or more just an opinion that could be followed or not followed. I ask because it is apparently the opinion of my FSDO that companies can schedule exactly as the scenario in your letter describes. They feel as if your letter is only opinion and that 24 hour on call is fine. My concern is that I now know of at least 2 companies in my area that are operating under an on-call schedule as described in the Berry letter and because the FSDO allows it, both the management and the pilots think they are legal. I am hoping to settle this matter in my own mind before I fly for one of these companies and could therefore be found in violation of the rest rules of Part 135.

Thank you in advance for any information that you could provide me on this.



I was actually answered rather quickly. Hopefully the answer from the Chief Counsel makes this a bit more clear:

Legal interpretations issued by AGC-200 are binding interpretations of
existing regulations, although they are somewhat fact specific and may not
be directly on point to a particular situation. They are not simply the
opinions of a particular attorney, but rather represent the official legal
position of the FAA's Office of the Chief Counsel, who is tasked with
interpreting the agency's regulations. As such, FSDOs do not have the
latitude to ignore them. Should you get continued pushback from a
particular FSDO, please ask the manager of the FSDO to reach out to his or
her regional counsel or to my office for clarification.

Rebecca MacPherson
Assistant Chief Counsel for International
Law, Legislation and Regulations
AGC-200
Federal Aviation Administration
 
Nice. I think everyone should have this thread bookmarked for future reference. You might have just changed pt 135 flying as we know it :)
 
It's a losing battle. Too many POIs in the pocket if the operator they are overseeing. 24/7 on call as rest is so asinine let alone recipe for disaster that it should be without question. Yet look how many operators do it WITH their POI's blessing.
 
Dugie8 said:
It's a losing battle. Too many POIs in the pocket if the operator they are overseeing. 24/7 on call as rest is so asinine let alone recipe for disaster that it should be without question. Yet look how many operators do it WITH their POI's blessing.
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If someone makes a big enough stink about it they will eventually cause a change. It could just be the fact that pilots haven't gone beyond the FSDO. Or at least tried hard enough.

Sent from my Nexus 7 using Tapatalk 2
 
Maurus said:
If someone makes a big enough stink about it they will eventually cause a change. It could just be the fact that pilots haven't gone beyond the FSDO. Or at least tried hard enough.

Sent from my Nexus 7 using Tapatalk 2
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What realistic route is there beyond the FSDO/POI? It's one thing to stand your ground it's another to needlessly fall on your sword.
 
Dugie8 said:
What realistic route is there beyond the FSDO/POI? It's one thing to stand your ground it's another to needlessly fall on your sword.
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If my 2 choices are falling on my sword or knowingly flying while not complying with the FARs. I choose my sword.
 
It will take a horrible crash, one that likely kills several recognizable people, by a crew who had been "at rest" and then showed up for "duty" with no sleep, for this to ever change.

FSDO's and POI's oversee air carriers within their jurisdiction. Other FSDO's do not have any oversight over an air carrier not within their jurisdiction. Technically, the FAA (as an overall organization), does have authority over everything, but until you find a way to motivate someone in DC or OKC to "lay the law down," (which likely would result in many Inspectors losing their jobs), this is never going to change.
 
Considering how many operators put "24/7 on call" right in their job advertisements, I think we still have a ways to go on this issue.
 
This is a problem, and it bothers me, because I live under the public airways, and share them with 135.

Dugie8 said:
It's a losing battle. Too many POIs in the pocket if the operator they are overseeing. 24/7 on call as rest is so asinine let alone recipe for disaster that it should be without question. Yet look how many operators do it WITH their POI's blessing.
Click to expand...
Eh.

Long call reserve (>12 hours prior to assignment) is a 24-hour period where I work (large 121), so branding "24 hour call" as unsafe is not really painting the whole picture. It's 24-hour-call with the immediate or near-future (shorter than minimum required rest) obligation to work should the need arise that is problematic. On long call, you have a present responsibility BUT adequate rest is determined and scheduled prospectively in the event of a flight assignment.

Anyone who has ever sat on call with present responsibility knows that it's not restful, at all.

Patrick said:
It will take a horrible crash, one that likely kills several recognizable people, by a crew who had been "at rest" and then showed up for "duty" with no sleep, for this to ever change.

FSDO's and POI's oversee air carriers within their jurisdiction. Other FSDO's do not have any oversight over an air carrier not within their jurisdiction. Technically, the FAA (as an overall organization), does have authority over everything, but until you find a way to motivate someone in DC or OKC to "lay the law down," (which likely would result in many Inspectors losing their jobs), this is never going to change.
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In order for a regulatory issue (like any political issue really) to be addressed, there must be:
(1) An identifiable problem,
(2) A prospective solution, and
(3) The public will to make a change (think large amounts of media coverage, and see for instance the crash of Continental Express flight 3407, operated by Colgan Air as an example of the confluence of the streams of problems, solutions, and public will).

We have (1) and (2), but not (3) and I think that you're right that it's going to take an accident. We do not regulate proactively in this country, we are reactive.
 
Autothrust Blue said:
This is a problem, and it bothers me, because I live under the public airways, and share them with 135.


Eh.

Long call reserve (>12 hours prior to assignment) is a 24-hour period where I work (large 121), so branding "24 hour call" as unsafe is not really painting the whole picture. It's 24-hour-call with the immediate or near-future (shorter than minimum required rest) obligation to work should the need arise that is problematic. On long call, you have a present responsibility BUT adequate rest is determined and scheduled prospectively in the event of a flight assignment.

Anyone who has ever sat on call with present responsibility knows that it's not restful, at all.


In order for a regulatory issue (like any political issue really) to be addressed, there must be:
(1) An identifiable problem,
(2) A prospective solution, and
(3) The public will to make a change (think large amounts of media coverage, and see for instance the crash of Continental Express flight 3407, operated by Colgan Air as an example of the confluence of the streams of problems, solutions, and public will).

We have (1) and (2), but not (3) and I think that you're right that it's going to take an accident. We do not regulate proactively in this country, we are reactive.
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Ok, gotcha.
 
ppragman said:
Yeah, you can be chilling at your folks' place in SEA and make it to Colgan in time to do that trip to Buffalo in the Q!
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That might be, oh, what's the word..."irresponsible" - yes, that's the term I'm looking for.

But if you live in Santa Barbara and you're based in LAX, suddenly driving down doesn't become an emergency when the phone rings.
 
So Im trying to get this straight...

When I became Chief Pilot, I put everyone on a fixed schedule. They are on call 6 days a week, 14 hours a day (they dont actually live at the airport during all this time, just available). This is set in stone (well in their job description). Every pilot knows that on their day off, they do not need to answer the phone. On their duty time sheet, they fill it out even if they dont fly to match this "schedule".

Our pilots are always wanting more flights (they get paid hourly in addition to their salary) and were not a really busy company.

Can me as Chief Pilot, call them on their day off, they answer their phone, I give them the option to take a flight (they dont have to take it or even answer the phone for that matter). If they decide to take it, then they get a day off sometime in the next week to meet the rest requirements. Is this legal?

How does this work for single pilot operators? Do they give themselves "rest time" that they cant answer the phone? Or if they answer the phone, can they take it if they already meet the rest requirement?
 
On their day off, sure. As long as there was ten hours from the end if the last duty assignment.

Remember the duty and flight limits thing is a coresponsibility between the pilot and the operator.
 
The bottom line being that they aren't REQUIRED to answer their phone. They are free from duty for the minimum rest time. The current regulations, while not exactly guaranteeing that circadian rhythm is balanced, are supposed to allow pilots to be able to reasonably plan sleep. A 24/7 on call schedule in theory does not completely allow that. The new regulations are supposed to go a step further and begin to address the fact that there IS a circadian rhythm and that we don't exactly operate like the airplanes do.
 
Dugie8 said:
On their day off, sure. As long as there was ten hours from the end if the last duty assignment.

Remember the duty and flight limits thing is a coresponsibility between the pilot and the operator.
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Well, They also have to comply with 13 24-hour rest periods every quarter. So if they get 1 day off a week, and you call them every off day to fly, you can get in violation of this. Assuming this is an on-demand operation that Fly Unity is CP of.
 
Dugie8 said:
On their day off, sure. As long as there was ten hours from the end if the last duty assignment.

Remember the duty and flight limits thing is a coresponsibility between the pilot and the operator.
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They can answer their phone if it was 1 hour since they were on rest, it's just up to the pilot. There's no rule that says you can't answer, it's just that they have no obligation to do so.
 
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