deadstick
Well-Known Member
I read that post as an acknowledgement of the messed-up situation at a former employer. BTDT, ya know? That operator made it hard on others (that followed the rules and therefore had greater overhead costs) to compete.
Time off and being on call
- Thread starter FL350
- Start date
I read that post as an acknowledgement of the messed-up situation at a former employer. BTDT, ya know? That operator made it hard on others (that followed the rules and therefore had greater overhead costs) to compete.
Apophis
Resident Iconoclast
Fair enough.
Dugie8
Well-Known Member
Try again.
Inverted
mmmmmm wine
WRONG
TFaudree_ERAU
Mashin' dem buttons
"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."
http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2009/mayors - (2009) legal interpretation.pdf
Bottom of page 1.
Inverted
mmmmmm wine
I seriously might put this in my signature....
Dugie8
Well-Known Member
Hell. It should be stamped on the front of every 135 operators OpSpecs.
Apophis
Resident Iconoclast
I love this idea.
Crockrocket94
Well-Known Member
Now we just need a way to get the FAA to enforce it.
JetDrvr
Well-Known Member
Crockrocket94 said:
In addition to prohibiting certificate holders from assigning duty, the reg states that "no crewmember may accept an assignment" unless the rest requirements stated therein are satisfied. So if by "enforce" you mean penalizing what you perceive to be a violation of the rest and duty rules then you would be equally liable and subject to certificate action by the FAA.
Your response is likely that you have no choice because if you refuse the trip then you would be fired and lose your income. But this is the same rationale--money--that is driving the operator's decision to ignore the reg (assuming your interpretation is correct).
So why is the operator he only one who should be liable? Why are you not equally responsible for violating the reg (assuming your interpretation is indeed correct)?
People are often quick to judge and point the finger at everyone else. No one wants to take responsibility for their own actions, or to do what is necessary to break the chain of events to prevent an accident or a violation.
The FAA is not going to do your job for you. If you sincerely believe that you are being asked to do something illegal or unsafe, it is your duty to refuse and offer alternatives. The fact that you may lose money does not justify you looking the other way, no more than it justifies the operator from doing the same to boost his bottom line.
That being said, keep in mind three things:
First, there is no reg does that explicitly states that rest must be prospectively determined. That is an interpretation of the applicable regs in an FAA counsel opinion. If the reg was clear on this point, pilots wouldn't be questioning the meaning of the reg and the FAA counsel wouldn't have wasted time researching and preparing an opinion.
Second, the FAA counsel's opinions are advisory. The FAA counsel's office has no rulemaking or enforcement authority. It prosecutes the case once an inspector initiates an enforcement action (if the airman decides to contest the action). An FAA counsel opinion is merely a lawyer's opinion of what an unclear or ambiguous reg means, which the FAA may rely on in an enforcement action (if it suits their needs). A judge may ultimately agree or disagree with that position. In this regard, a counsel opinion more like an advisory circular or the AIM, than a regulation. And even if the judge agrees, he or she may decide that the airman's or operator's interpretation was reasonable under the circumstances.
And last, if it is indeed industry practice to follow an interpretation of the regs that is contrary to yours, and the FAA is routinely not enforcing what you perceive to be violations, then isn't it possible that your interpretation is wrong?
TFaudree_ERAU
Mashin' dem buttons
So, which scumbag 135 operation are you head of?
Dugie8
Well-Known Member
That is a fair observation.
All this can boil down to a couple of things; when do I sleep? Also, if I am tired because the operator has given me no schedule to work my sleep schedule around, why does that operator want me flying the most valuable asset the operation owns/has?
To your point about "prospective"
135.263(b) No certificate holder may assign any flight crewmember to any duty with the certificate holder during any required rest period.
135.267 (2)(d) (d) Each assignment under paragraph (b) of this section must provide for at least 10 consecutive hours of rest during the 24-hour period that precedes the planned completion time of the assignment.
There is no way that rest can not be prospective with those two regs. The operator must tell the pilots when their duty ends and rest begins and vice versa. This can be accomplished any number of ways, the easiest being a published schedule for the pilots.
SrFnFly227
Well-Known Member
@JetDrvr First, I want to say that I agree with you that pilots are equally at fault when it comes to this. As long as people continue to take these jobs, the companies will continue to operate the way they do. I'll also guarantee that if the FAA starts enforcing this, pilots will see the brunt of the enforcement actions while the companies will get a slap on the wrist. Unfortunately, that makes it really hard to be the person who calls the FAA to report an operator.
My issue is with your post is with the following quote.
The following is a response that I got from the Chief Counsel when I asked whether the interpretations are opinion only. I would venture to guess that they wouldn't agree with your assertion.
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
My issue is with your post is with the following quote.
The following is a response that I got from the Chief Counsel when I asked whether the interpretations are opinion only. I would venture to guess that they wouldn't agree with your assertion.
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
Patrick
Well-Known Member
TwoTwoLeft
o- - - - - - -l
Heres a page out of the "Everything Explained" book.
The 24/7 schedule model fails where the rest period must be issued prospectively. For a "pop-up" end of trip look back or not, unless you're following a hard day off there was technically never a rest period. They can't just ask "are you rested?" because that would be implying a retrospectively determined rest period. Being required to answer the phone 24/7 except on your hard days off is NOT rest.
Now for scheduled trips, is your employer supposed to issue you a rest period of 10 hours prior to your scheduled show time or is the 10 hours of prior rest inferred?
The 24/7 schedule model fails where the rest period must be issued prospectively. For a "pop-up" end of trip look back or not, unless you're following a hard day off there was technically never a rest period. They can't just ask "are you rested?" because that would be implying a retrospectively determined rest period. Being required to answer the phone 24/7 except on your hard days off is NOT rest.
Now for scheduled trips, is your employer supposed to issue you a rest period of 10 hours prior to your scheduled show time or is the 10 hours of prior rest inferred?
Attachments
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CoffeeIcePapers
Well-Hung Member
MidlifeFlyer
Well-Known Member
It's not quite as clear as a choice between "advisory" vs. "rule of law" or describing it as "merely a lawyer's opinion" would make it sound.
It's pretty much as described in @SrFnFly227's quotation: the "official legal position of the FAA's Office of the Chief Counsel, who is tasked with interpreting the agency's regulations." They are formal, written and published interpretations of the FAR made by the group within the FAA given the responsibility for internal "final" interpretation of the rules. In short, they are the FAA's interpretation of the FAA's regulations.
Generally, their legal status is the same as formal interpretations issued by other federal agencies. They do not have the "force of law" in the same sense as a statute enacted into law or a regulation that has gone through the formal rule-making process. But they are far from "non-binding" in the lay sense.
It's a basic principle of administrative law that courts will defer to an agency's interpretation of its own governing statute and regulations, so long as the interpretation is reasonable.
"Reasonable" doesn't mean whether "a judge may ultimately agree or disagree with that position." It's much more limited. A judge will agree with the interpretation unless the judge decides it is "arbitrary, capricious [or] an abuse of discretion” in the sense that one simply can't look at the regulation and the statute and find any support for it. I like to use the term "patently ridiculous." Not technically accurate but pretty much what it is.
So one can typically expect that an FAA enforcement action will utilize the FAA's interpretation of what the FAR says and that a challenge to that interpretation will be an expensive uphill battle with a high probability of failure.
And no. a judge will not say, the FAA's interpretation is correct but you made a reasonable mistake so no problem. The Merrell case should have laid that thought to rest. In that one, the FAA violated an airline pilot under 91.103 for not flowing an instruction. The pilot heard an instruction, thought it was for him, read it back for confirmation and, hearing no response, followed it. Unfortunately, it turned out the instruction was for a different aircraft and a loss of separation occurred. It was an innocent mistake. Even the NTSB felt it was out of line for the FAA to go after the pilot and reversed the FAA. The US Court of Appeals reimposed the FAA penalty based in large part on the deference principle.
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PilotDefenseAttorney
Well-Known Member
Again, an excellent analysis by MidlifeFlyer. I would only add a couple of things.
First, it seems to me that the practical application of pilot duty time rules is and must be both prospective and retrospective. Prospective in the sense that the "planned" completion of the assignment must be determined and retrospective in the sense that some or all of a period of "rest" may be considered in determining whether a pilot is eligible for dispatch. Similarly, a "scheduled" day off may be interrupted so long as another day can be and is substituted within the necessary period. And, be sure not to confuse "being called" with "being on call" - the former being an inquiry or informational contact (that you need not even answer) and the later implying that you a) must take the call and b) must be available for flight upon receiving such a call. A quality operator and a willing pilot can establish a work schedule that is fair for both and complies with the letter and the spirit of the law. It is important to strive for both. Because, unfortunately, it is possible to comply with the letter of the law and still have tired, overworked, and unsafe pilots.
Second, the good news and bad news on the issue of deference (by the NTSB) to the FAA's interpretation of its own regulations is that since the Pilot's Bill of Rights the issue is at least potentially a bit better. The NTSB (in hearing an airman's appeal of any enforcement action taken by the FAA) is no longer statutorily bound by the FAA's interpretations of its own laws and regulations. The PBR at least intended to eliminate "special deference" (as was the lay of the land when the Merrell case was decided - 1999) and return to the "due deference" owed to other administrative agencies - a significant and beneficial change for airman accused of a violation. Of course, in application the PBR is quite new and the FAA is arguing for a stricter deference than most pilots and pilot organizations believe to have been the intent of Congress. I had a brief discussion with the NTSB's chief Administrative Law Judge last week and was quite encouraged. He was, in my opinion, dedicated to fully implementing the rule and spirit of the PBR. Nonetheless, he, the full board, and the federal courts will hear both sides of all such arguments. Future legislation and court action will tell the story. Stay tuned.
First, it seems to me that the practical application of pilot duty time rules is and must be both prospective and retrospective. Prospective in the sense that the "planned" completion of the assignment must be determined and retrospective in the sense that some or all of a period of "rest" may be considered in determining whether a pilot is eligible for dispatch. Similarly, a "scheduled" day off may be interrupted so long as another day can be and is substituted within the necessary period. And, be sure not to confuse "being called" with "being on call" - the former being an inquiry or informational contact (that you need not even answer) and the later implying that you a) must take the call and b) must be available for flight upon receiving such a call. A quality operator and a willing pilot can establish a work schedule that is fair for both and complies with the letter and the spirit of the law. It is important to strive for both. Because, unfortunately, it is possible to comply with the letter of the law and still have tired, overworked, and unsafe pilots.
Second, the good news and bad news on the issue of deference (by the NTSB) to the FAA's interpretation of its own regulations is that since the Pilot's Bill of Rights the issue is at least potentially a bit better. The NTSB (in hearing an airman's appeal of any enforcement action taken by the FAA) is no longer statutorily bound by the FAA's interpretations of its own laws and regulations. The PBR at least intended to eliminate "special deference" (as was the lay of the land when the Merrell case was decided - 1999) and return to the "due deference" owed to other administrative agencies - a significant and beneficial change for airman accused of a violation. Of course, in application the PBR is quite new and the FAA is arguing for a stricter deference than most pilots and pilot organizations believe to have been the intent of Congress. I had a brief discussion with the NTSB's chief Administrative Law Judge last week and was quite encouraged. He was, in my opinion, dedicated to fully implementing the rule and spirit of the PBR. Nonetheless, he, the full board, and the federal courts will hear both sides of all such arguments. Future legislation and court action will tell the story. Stay tuned.