After investing a great deal of time to hammer out a landmark proposed rulemaking covering flight and duty time for Part 135 operators through the Aviation Rulemaking Committee (ARC) process, the industry is expressing frustration over a Federal Aviation Administration (FAA) request on what constitutes the circumstances that would retain the legal status of a flight when a pilot is forced by unforeseen circumstances to exceed his or her duty limit.

One group said ARC members were surprised that it came up again, given all the work put into ARC. One concern expressed was that FAA appeared to be trying to get rid of more liberal interpretations, to pave the way for stricter rulemaking. This, they said, could derail all the work done by ARC if done in a piecemeal process. One insider told Regional Aviation News the whole point of the ARC process was to provide a comprehensive proposed rule for the industry, improve safety and address the concerns raised by the National Transportation Safety Board. The National Air Transportation Association (NATA) indicated the difficulty of reaching a consensus with the disparate interests was rewarded by the development of such a rule that covered the concerns of operators, the Air Line Pilots Assocation, the International Brotherhood of Teamsters, the National Business Aircraft Association, NATA and Regional Air Cargo Carriers Association (RACCA), among many others. Fully one-third of members were FAA personnel, including members of the general counsel's office, which later prompted the FAA query published in May that resulted in industry comments.

Perhaps NATA put it best. "The Part 135/125 Aviation Rulemaking Committee (ARC) members, including FAA staff, invested considerable time and resources to develop a comprehensive rulemaking proposal to address flight, duty and rest requirements for Part 135," said NATA's Senior Manager of Regulatory Affairs Jacqueline Rosser. She went further. "We believe that the resources of the [FAA] Office of Chief Counsel would be more wisely spent moving forward with the ARC proposal," she said. "It's clear the FAA would like to move away from some of their previous interpretations of existing rules. NATA firmly believes that the appropriate way to address any changes sought by the agency is through the rulemaking process and we stand behind the work of the ARC." NATA and other industry representatives have recommended that the FAA fast-track the flight, duty and rest proposal and issue a proposed rulemaking based on the comprehensive ARC recommendation.

At the heart of the issue is what happens when an on-demand flight departs later than planned, owing to circumstances beyond the control of the operator or flight crew. Those for scheduled operations, such as cargo operators, are identical to the flight/duty regulations governing Part 121 carriers. Circumstances beyond an operator's control could be as simple as delayed passenger charter flight or a major freight carrier's flight arriving late, forcing the 135 operator to run late. Passenger charter operators often encounter late arriving passengers when meetings run late or if there is unusual congestion on the way to the airport. Telling charter passengers they can't fly because these circumstances resulted in excess duty time would devastate industry reliability. Further, these operators do not have the resources in extra crew and aircraft to enable the operator to meet demands to continue the flight. Other circumstances include ATC delays, weather, unscheduled maintenance, and taxi delays.

The issue of flight-duty-rest time for air crews has been contentious for more than a decade; several previous industry/FAA attempts to update the rules have failed. FAA's history on the subject indicates that completion of the mission would not violate flight and duty time, as long as the operator can demonstrate reasonable planning that would have resulted in a "legal" duty day.

"One of the major concepts that came out of [the ARC] work was a single system of flight, rest and duty requirements would not work for all operations," said NATA in its filing. "[Instead] ARC created two new flight, rest and duty systems, designed to be alternatives to current on-demand flight and rest requirements found in 135.267...The ARC members believed...that these two methods, along with the current system, provide each operator with enough choices to find a system that would fit the operator's particular needs."

NATA's filing also revealed that the majority of ARC members agreed that late arriving passengers should not be treated as circumstances beyond the control of the certificate holder. "As proposed, the new version of the Circumstances Beyond Control Exception would apply only to circumstances that occurred after the beginning of the last flight leg during the duty period," said NATA. "The majority of members felt that this caveat...when applied to extension of duty period and rest requirements was important to discourage abuse in light of the changes to the requirements for rest. The majority of members of the ARC felt this modification was a proper balance of safety and the needs of the certificate holder with respect to scheduling and in light of other changes made in the proposal."

NATA favors suggestions that Part 135 On-Demand Flight and Rest Requirements be pulled out of the overall ARC rulemaking process but not if it jeopardizes the integrity of the ARC-proposed regulations. "The proposal was a comprehensive effort by FAA and industry to update the rest and duty regulations," said NATA. "Many changes were made based on new concepts created in the proposal, and on other changes, and to take any single change or group of changes out of context in the entire prosposal would destroy the intent of the ARC participants and result in unintended consequences that could be devastating to the industry."

RACCA, whose members largely elect to fly under rules governing Part 135 scheduled operations,added, "FAA has consistently emphasized in its written interpretation that the key to interpreting 135.267(d) is to look at the original planning of the assignment. There cannot be a deliberate attempt...to circumvent duty, rest or outside commercial flying limitations."

FAA questioned operators about operational practices and regulatory history that supported their position and respondents offered up a mountain of data. Indeed, as RACCA put it, "hundreds of legal interpretations support...that flexibility is available both to extend a duty period and to reduce a rest period provided there was realistic scheduling for the assignment. The legal interpretations do recognize late arriving cargo and passengers in circumstances beyond the control of the operator and crew."

RACCA emphasized flight time and rest sections of Parts 121 and 135 are almost exactly the same as those for scheduled 135 operations -- essentially, rest time dictates maximum flight time.

"The normal required rest in the scheduled rule of 135.265 can be reduced to a minimum time provided a compensatory rest is given," said RACCA. "Whether or not a crew can take off on a subsequent flight is governed by the unencroachable minimum rest." It noted, however, that on-demand requirements of 135.267 are different, in that rest does not receive the same emphasis and is not the driving force of the regulation. Crewmembers must receive specific increments of rest with no company duty. An exception can be made when excess flight time occurs which requires additional rest incremental to the excess time on duty. "If the allowable flight time for a two-pilot crew is 10 hours, and if the 10-hour flight time limit is exceeded, then mathematics dictate that the 14-hour duty would be exceeded," said RACCA, adding current regulations do not address what to do when this happens. The organization said the onus is on the FAA to enforce the rules.

"If the FAA is diligent in its surveillance of operations -- and particularly those whose flight patterns suggest attempts to circumvent the rules -- any such trend would become apparent with appropriate enforcement action to follow," it said. "Ultimately the pilot has the privilege, right and responsibility to refuse an improper assignment."

A second important issue involves the on-demand industry, when a crewmember's status is "on-call". The industry agrees that when a pilot is required to answer a call from the operator and to accept any flight assignment, this "duty-to-report" scenario can't be counted as rest time. The FAA has said that rest must be free from all duty, or responsibility for work or duty, consequently rendering on-call status as duty time.

Alternatively, operators can use another "on-call" provision, which gives a pilot the option to answer a call and the option to accept a flight assignment, known as "available" status. Available status has not, according to NATA, been clearly defined by FAA. "There are several interpretations that hold an operator may attempt to contact the crewmember during the rest period, without interrupting such rest period, as long as the crewmember is not required to respond," said NATA. "These interpretations, coupled with the concept that during the availability status, the crewmember is not performing any duty for the operator" make it clear that availability time can be counted as rest time.

NATA supports both interpretations. The ARC proposal would add a new structure called the Crewmember Availability Method, providing crewmembers a fixed seven-hour period of protected time followed immediately by a one-hour contact time each day, which may not change from day to day. The proposal means crewmembers would be available for assignment during all other times, but once assigned to duty, the normal 14-hour duty day would apply along with the requirement for a 10-hour rest period. NATA indicated that the three methods should give operators what they need for scheduling.