Part 135 Rest & Duty. Gauging Your Compliance

Part 135 Rest & Duty Gauging Your Compliance Presenters: Alexander H. Beringer, Fair Wind Air Charter Jason Herman, Latitude 33 Aviation David Norton, Shackelford, Bowen, McKinley & Norton, LLP Leslie Smith, FAA AFS-200 Dale Roberts, FAA AFS-220 Washington, DC February 10, 2016

Introduction of Presenters From Industry Alexander H. Beringer Fair Wind Air Charter Jason Herman Latitude 33 Aviation David T. Norton, Esq. Shackelford, Bowen, McKinley & Norton LLP 3

Introduction of Presenters From FAA Leslie Smith Manager, AFS-200 Air Transportation Division Dale Roberts Part 121 Air Carrier Operations Branch, AFS-220 Air Transport Division 4

Part 135 Rest & Duty - Gauging Your Compliance Webinar Objectives & Overview Review and applicability of duty/rest regulations of 14 CFR 135 Summary / Review / Highlights of relevant FAA interpretations Summary of Safety Culture & Industry Best Practice Considerations Review of real World examples of fully compliant rest/duty policies and procedures Comments by FAA to provide relevant information and updates on Duty and Rest Open Forum with Questions & Answers 5

Survey Question Are Part 135 rest and duty regulations well understood and practiced within your flight operation? A) Yes B) No C) Sometimes, but inconsistently applied D) Understood, but intentionally circumvented 6

Part 135 Rest & Duty Putting things in Initial Context What is the Law? The U.S. Constitution Statute (here, the Federal Aviation Act of 1958) Rules (promulgated with notice & comment) And Court Rulings? (Federal, State, NTSB) Orders (such as FSIMS) Chief Counsel Interpretations Other (notices, informal discussions, etc.) 7

14 CFR 135 Applicable Regulations Subpart F This webinar will focus on the on-demand portion of Part 135 operations since that is the source of discussion prompting most recent FAA interpretation. 14 CFR 135.261 Applicability Mandates compliance with 135.263 for all operations Defines the term Scheduled Operations Mandates compliance with 135.265 for scheduled operations Mandates compliance with 135.267 and 135.269 for unscheduled operations 135.267 applies to unscheduled one- and two-pilot flight crews 135.269 applies to unscheduled three- and four-pilot crews 8

14 CFR 135 Applicable Regulations Subpart F 14 CFR 135.263(a) states, A certificate holder may assign and a flight crewmember may accept an assignment only when requirements of 135.263 through 135.271 are met 14 CFR 135.263(b) states, No certificate holder may assign crewmember to any duty during any required rest period 14 CFR 135.263(c) states, Time spent in transportation, not local in nature is not considered part of a rest period 14 CFR 135.263(d) states, crewmember not considered to be assigned flight time in excess of flight time limitations due to circumstances beyond the control 9

14 CFR 135 Applicable Regulations Subpart F 14 CFR 135.267 states during any 24 consecutive hours flight time may not exceed 8 hours (for one pilot); or 10 hours for (for two pilots) This includes any other commercial flying time 14 CFR 135.267 (c) provides establishing regularly assigned duty periods of no more than 14 hours and provides for flight time exceedance allowance for that specific duty/rest structure. 14 CFR 135.267(d) mandates the look-back requirement. Each assignment must provide for at least 10 consecutive hours of rest during the 24-hour period preceding the planned completion time of the assignment. 10

14 CFR 135 Applicable Regulations Subpart F 14 CFR 135.267e) provides for flight time limitation exceedances for specific events beyond the control of the certificate holder and/or crewmember and sets resulting increased rest. 14 CFR 135.267 (f) provides for minimum of 13 rest periods of 24 consecutive hours for each flight crewmember for each calendar quarter. 14 CFR 135.269 establishes regulations for unscheduled threeand four-pilot crews. For purposes of duty/rest discussion, we ll disregard this regulation as the content on aspect of duty and rest is the same. 14 CFR 135.271 is for HEMES and is disregarded for this webinar. 11

Time Spent in Transportation Not Local in Character FAR 135.263 (c) states, Time spent in transportation, not local in character, require(d) of a flight crewmember to transport the crewmember to or from an airport at which he [is to serve, or] was relieved from duty is not considered part of a rest period. What is considered, Local in Character? FAA Chief Legal Counsel has consistently interpreted local in character to mean travel to and from one s residence to one s place of business, from a hotel to an airport, and/or between codomiciles J. Johnson (1992) 12

Time Spent in Transportation Co-Domiciles Deadhead or Airline Travel is not considered part of a rest period. Co-Domicile airports are generally within a close geographic distance to one another and would be reasonable to assume crewmembers may be dispatched from one co-domicile airport and terminate at another (but, be careful with this fatigue must be considered and proper policy is required for this to be consistent) Examples: BWI to IAD (58 miles); LAX to SNA (42 miles) Local in Nature = Reasonably Brief Exact scenarios still subject to FAA interpretation, no set guidelines exist on distance/time between co-domiciles 13

Co-Domiciles Legal vs. Safe: Fatigue Management Program The FAA mandates rest periods to ensure flight crewmembers have the opportunity to get sufficient, uninterrupted sleep While travel between co-domicile airports may be considered part of a rest period, it is important for operators to evaluate how well-rested crewmembers are as part of their Fatigue Management Program (FMP). A properly developed and executed FMP can help mitigate risks associated with crewmembers traveling between co-domiciles in addition to other deadhead transportation/travel 14

Survey Question May late-arriving passengers be considered a delay beyond the control of the certificate holder? A) Yes B) No C) Yes, but only if duty day will not exceed 14 hours D) Yes, if passengers are less than 45 minutes late 15

Delays Reasons Beyond the Control... While FAR 135.263/267/269 discusses delays due to circumstances beyond the control of the certificate holder in exceeding flight time limitations, FAA Chief Counsel has extended this language to other parts of FAR 135 Subpart F. If a crewmember is realistically scheduled to receive 10 hours of rest in a 24-hour period, then if the original planning is upset for reasons beyond the control of the [certificate holder], the flight may nevertheless be conducted, even though crew duty time may extend beyond 14 hours in a 24-hour period Kidd (2012) The FAA has previously interpreted that delays due to latearriving passengers [or cargo] could also constitute circumstances that are beyond the control of the certificate holder. 16

Delays Exceeding 14 Hours of Duty Late Arriving Passengers Just how late can our passengers be and still legally depart if expected to exceed a 14 hour duty day? Operator policies should address this question and those similar FAA Chief Counsel has not defined how late passengers may be for crewmembers to still be reasonably scheduled and able to depart (knowingly exceeding 14 hours of duty) Carefully consider Whitlow Letter as Good-to-Start Good-to- Finish may not apply. Many operators have implemented internal policies to address this issue. Consider in light of proper fatigue management program. 17

Compensatory Rest FAR 135.267(e) When Does it Apply? If a flight crewmember exceeds the daily flight time limitations set forth in FAR 135.267 due to circumstances beyond the control of the certificate holder or flight crewmember, that crewmember is required to receive additional rest This compensatory rest only applies if the daily flight time limitations are exceeded (ie. 10 hours of commercial flying for a two-pilot crew; 8 hours of commercial flying if Single Pilot) The regulation does not address rest requirement if 14 hours of duty is exceeded. Consider providing max rest of 16 hours? Consider leg-by-leg look-back requirement referenced in Whitlow Letter? 18

Part 91 Home or Tail End Repo Flying Back to Base After a Part 135 Flight FAR 135 rest requirements only require one to lookback for rest at the completion time of the last part 135 assignment (and post flight time, if applicable) Additional flying may be completed under Part 91 following a Part 135 assignment (ie. Back to Base or Part 91 Home ) While this tail-end flight segment is not subject to FAR 135 rest requirements, it is not be considered to be part of a flight crewmember s rest period A continuous 10-hour rest period is required after the completion of this tail end repo prior to assigning a flight crewmember to part 135 duty and flight time 19

Duty Day Part 91 Home Safe vs. Legal: Fatigue Management Program While tail-end repositioning flights or Part 91 Home segments may be legal, it is important for operators to evaluate the risks associated with repositioning flights as part of their FMP. Many operators have implemented internal policies which address this component of day-to-day operations. Some operators choose to limit their activities to 14 hours and do not allow such Part 91 Home flights if it occurs beyond a 14-hour day. Flight crewmembers and company management should share equal responsibility to determine if a rest period is prudent prior to conducting a tail-end repositioning flight after a long or fatigue-prone duty day (ie. early morning start). Consider 14 CFR 91.13! 20

Survey Question Pilots and operators are jointly responsible for compliance with Part 135 rest and duty regulations A) True B) False 21

14 CFR 135 Key Points Flight time limit is either 8 or 10 hours based on number of crews Look-back requirement is key component for this discussion pertaining to on-demand/unscheduled flight operations. Must be able to prove 10 hours of REST within 24 consecutive hours preceding planned completion time (leaving 14 hours for duty) There is a mutual responsibility between CREW and CERT. HOLDER to make sure regulations are complied with. Compliance is your responsibility not your POI s. 22

14 CFR 135 Key Points Look-Back requirement must consider: Reasonable planning of the trip based on actual trip conditions. Actual A/C performance capabilities Wind/weather/external conditions Airport/FBO/ATC factors/peak-travel delays Include policy (GOM) to include time for pre- and post-flight duties. 24 hour period immediately preceding the planned completion time of the assignment. Must provide for 10 consecutive hours of REST within that 24 hour period. 23

14 CFR 135 Key Points The Look-Back requirement Example (assuming 14 hour duty day) A flight crewmember is scheduled to complete his/her last Part 135 flight segment at 1930 local time. The operator s GOM includes 90 minutes of pre-flight duties with 30 minutes of post-flight duties. At 2000 (1930+30min) local time, one must lookback 24 hours and determine that a minimum of 10-hours of REST was provided within that period. Therefore, for a maximum duty day, this flight crewmember would have had to begin REST at 2000 the previous evening, ended REST at 0600 the morning of, began duty at 0600, and ended duty by 2000. 24

So What is Duty & What is Rest?? What does a search for these terms in FAR s reveal? See 14 CFR 135.273 (applies to F/A s, but still instructive) Duty Period means (t)he period of elapsed time between reporting and release from that assignment... Rest Period means (t)he period free of all responsibility for work or duty should the occasion arise See 14 CFR 91.1057 (applies to Part 91K, but still instructive) Duty Period means (t)he period of elapsed time between reporting and release from that assignment Rest Period means a period of time required that is free of all responsibility for work prior to or following a duty period Rest does not include any time [company] imposes duty or restraint, including any actual work or present responsibility for work should the occasion arise. 25

So What is Duty & What is Rest?? See 14CFR117.3 Duty means any task that a flight crewmember performs as required by the certificate holder, including flight duty period, preand post-flight duties, administrative work, training Rest Period means a continuous period determined prospectively during which the flight crewmember is free from all restraint by the certificate holder, including freedom from present responsibility for work should the occasion arise. Note: Part 117 applies to Part 121 operations, but for sake of finding definitions, this reference is provided in context to our overall discussion. 26

FAA Interpretations What, Where, Why? FAA Chief Counsel (AGC-200) issues Legal Interpretations and Opinions upon request from public and/or FAA staff. FAA s Legal Interpretations & Chief Counsel s Opinions are available via http://www.faa.gov/about/office_org/headquarters_offices/agc/pol _adjudication/agc200/interpretations/ Online database contains legal interpretations dating back to 1990 and can be searched by keywords (regulation, term, words, etc.). A search for duty and rest reveals numerous interpretations 27

FAA Interpretations Relevant publications 1992 Laurenzano defines duty and rest http://www.faa.gov/about/office_org/headquarters_offices/ agc/pol_adjudication/agc200/interpretations/data/interps/1 992/laurenzano%20- %20(1992)%20legal%20interpretation.pdf 28

FAA Interpretations Relevant publications 1999 Knight reiterates definition of rest http://www.faa.gov/about/office_org/headquarters_offices/ agc/pol_adjudication/agc200/interpretations/data/interps/1 999/knight%20-%20(1999)%20legal%20interpretation.pdf 29

FAA Interpretations Relevant publications 2000 Rubin Infamous Whitlow Letter Written toward Part 121 operations. Obliterates the good-to-start good-to-finish policy previously used by 121 airlines. Lookback requirement must be considered leg-by-leg and groundbased delays/occurrences that reduce rest below [required rest] FAA was sued as a result of this by ATA. FAA won the law suit and interpretation stands. Significance to Part 135 comes from the footnote of the ruling: Footnote states: The substance of the rules in Part 121 and 135 is essentially the same and the rules are likewise interpreted. (ATA v. FAA, 291 F.3d 49 (May 31, 2002) http://www.faa.gov/about/office_org/headquarters_offices/ agc/pol_adjudication/agc200/interpretations/data/interps/2 000/rubin%20-%20(2000)%20legal%20interpretation.pdf 30

FAA Interpretations Relevant Publications 2005 Kolander States nature of Rest and confirms One phone call exception http://www.faa.gov/about/office_org/headquarters_offices/ agc/pol_adjudication/agc200/interpretations/data/interps/2 005/kolander%20-%20(2005)%20legal%20interpretation.pdf 31

FAA Interpretations Relevant Interpretations Additional Interpretations (just an excerpt): 2005 - Brazill 2009 Berry 2009 Mayors 2010 Rogers 2013 Masterson 2015 Orellana Discusses rolling rest and reiterates rest definition citing several prior interpretations (nothing new) http://www.faa.gov/about/office_org/headquarters_offices/ agc/pol_adjudication/agc200/interpretations/data/interps/2 015/orellana%20-%20(2015)%20legal%20interpretation.pdf 32

FAA Action & Case Law 1999 Federal Register Notice (FR) FAA announces special emphasis inspections related to rest enforcement. Qualities of rest, as described throughout, are included. FAA references the look-back requirement of 135.267(d) 64 FR 32176 Aviators sue FAA Aviators for Safe and Fairer Regulation, Inc. challenged 1999 Notice with regard to applicability to Part 135 Court agreed with FAA that a duty to report is not considered rest Court reviewed prior rest interpretations and found them validly adopted and binding Aviators for Safe and Fairer Regulation, Inc. v. FAA, 221 F.3d 222 (Jul. 25, 2000) 33

Survey Question May on-call, stand-by, or reserve periods be considered part of a flight crewmember s rest period? A) Yes B) No C) Depends on the operator s GOM D) Depends on how strict the POI enforces the issue 34

Rest & Duty Common Theme Summary of Regulation and Interpretation Rest and Duty is defined in various portions of the FAR s Rest and Duty has been defined, qualified and clarified in FAA interpretations, Federal Register as well as case law. A proper/legal rest period must encompass the following three elements: 1. Must be Continuous (uninterrupted, one stretch of time) 2. Determined prospectively (start and end of REST must be known in advance) 3. Free from all restraint and/or responsibility (no actual or implied obligations) Any activity that does not meet the definition of REST is therefore DUTY. 35

Rest & Duty Common Theme Summary of Regulation and Interpretation Continuous Element Without interruption, one stretch of time Prospective in Nature Element Rest-start and Rest-end must be known in advance by crew Can be assigned by notice (email, policy, procedure) Cannot be retrospective i.e. no rolling rest Free from restraint Element No on-call, standby, reserve provision can be part of REST Any obligations, actual/implied, violates this Element and invalidates the Rest Period. 36

Rest & Duty Common Theme Business & Commercial Aviation 11-27-2015 Article: Pilots Should Know When It Is OK To Drink A Beer http://aviationweek.com/bca/faa-call-pilots-are-duty 37

Real World Impacts To have a full 14-hour duty period, you must provide an assigned rest period of at least 10 hours immediately prior. i.e. set trip-specific rest period for all advance notice flights Need to establish a policy/procedure on how a duty day is structured in the absence of a given flight itinerary i.e. set automatic rest periods in absence of flights. i.e. staggered rest for multiple crews of the same type aircraft. Essentially, you need at least 10 hours of notice prior to operations that require a full duty day. For shorter duty assignments you still have some availability to cover pop-up flights Pilot assigned for REST between 2100 0700. Pilot is called to report at 1500 for a pop-up flight Pilot needs to be off-duty (i.e. completed post-flight) no later than 2100 to comply with the 24-hour look-back requirement. 38

Real World Impacts Your Sales staff needs to carefully coordinate with your clients in order to address the following areas: Trip-time and itinerary changes can prove difficult once crews are in Rest Max-duty day trips don t leave much room for changes once Rest commences. The longer the duty-day, the more careful you have to plan and communicate with your customers and passengers. For short duty days, set rest to allow for changes Pax now wants to leave earlier Pax now wants to leave later Crew is off-limits during a Rest Period Adjusting a Rest Period once commenced is a real gray area so be careful. 39

Pop-Up Example Evening Pop-up Trip Request A Florida-based operator receives a pop-up trip request for a same-day 2000 local departure from home base to TEB (2.5 hour flight) Assuming a 30 min post-flight and 90-min show time, the 24 hour look-back will need to be completed for a planned completion time of 2300. Can you find a full/proper Rest Period since 2300 the day prior? Company may not assign the trip to a crew unless they were scheduled and have received a 10-hour rest period within the 24- hour period preceding the arrival and post-flight in TEB (2300) If this type of request is a frequent occurrence, an operator may want to consider multiple or staggered rest periods to accommodate early morning and/or late evening pop up trip requests. 40

Survey Question How would you gauge enforcement of part 135 rest and duty regulations within your organization? A) Strictly enforced B) Understood by all parties but not strictly enforced C) Not well understood by either party nor well enforced D) Not often mentioned. Our company uses rolling rest periods. 41

Safety & Compliance Culture Compliance with operating regulations is not voluntary, even if direct FAA oversight (POI) does not thoroughly enforce all or certain parts of the operating regulations and/or rest requirements Orellana (2015) Operators should foster a culture in which all personnel (management, pilots, scheduling, dispatch, etc.) want to comply with appropriate rest and duty regulations Well defined, documented, and implemented company policies concerning rest and duty, safety management, and fatigue management is critical to cooperative compliance 42

Safety & Compliance Culture One cannot simply say yes to all trip requests, especially those that are short notice, same-day scenarios with requirements for lengthy/near-max duty day. Must tailor your rest periods to meet demand. Operations department and Sales department must coordinate closely. This can be difficult to accept for smaller operators without extra crews and the ability to stagger rest for various fleet aircraft. Determine your peak business demand and structure a solid rest policy around that peak business. For those with lots of short notice demand, you may need to add crews to make it work. FAA HQ action desperately needed to level the playing field and standardize interpretation and enforcement in the field (Regions, CHDOs, Inspectors) 43

Safety & Compliance Culture If the framework is properly established, operators can very easily and cost effectively comply with appropriate Part 135 rest requirements in modern day on-demand operations A positive, safety driven, and compliant culture is required in order to effectively schedule flights and crewmembers, maintain industry standards, and generate revenue Operators must accept that not all trip requests will be feasible; however, most will be possible while all rest requirements will be complied with, Fatigue Management Program (FMP) strengthened, pilot morale preserved, and safety standards upheld 44

Examples of implementation process Operator steps & process Fair Wind Air Charter has implemented proper rest and duty policies and procedures in 2010 with great success. Involved crews, owner-clients, and management in the process. Process of educating flying customers is a never-ending process. Brokers? Fractionals? End-clients? Owner as charter client and how their trips need to be coordinated Increased crew retention & satisfaction. Key-component of its Fatigue Management Program. Q&A included in GOM to address most common items. Built to be conservative. (Give an inch, lose a mile ). Daily coordinated effort in good operations management. Coordination and communication is the key for this to work. 45

Questions & Answers Open Forum & Discussion 46