In a Notice of Proposed Interpretation published on December 23, 2010, the FAA is proposing to interpret the application of FAR 135.263 and the rest requirements of FAR 135.267(d) to a situation where an operator plans a flight that is anticipated to be completed within a 13.5-hour duty day but, unanticipated delays (e.g. late passengers, late cargo etc.) occur before the last leg of the flight, and these delays would extend the flight beyond a 14-hour duty day if the last leg is completed.
The FAA's current interpretation of these regulations, based upon legal interpretations issued in the 1990's, permits flight crewmembers to take off on flights that were scheduled to be completed within a 14-hour duty period even though circumstances beyond the crewmembers' control extended the actual duty time beyond the permissible 14-hour period. However, this interpretation is inconsistent with its current interpretation of the near identical language in FAR 121.471(g) which would not permit the crewmembers to take off on the last leg of the flight.
The FAA's interpretation of the language of FAR 121.471(g), which was upheld by the U.S. Court of Appeals for the DC Circuit, created an exception to pilot flight time limitations, but did not provide an exception for pilot rest requirements. In the Court of Appeals decision, the Court also stated that "[t]he substance of the rules in FAR Parts 121 and 135 is essentially the same and the rules are likewise interpreted." The FAA's interpretations of FAR 121.471(g) along with the Court of Appeals case have been known as the "Whitlow Letter line of interpretations."
According to the proposed interpretation, "[t]he FAA has determined that it is illogical that the nearly-identical regulatory language in sections 121.471(g) and 135.263(d) is interpreted in two different ways" and "the Whitlow Letter line of interpretations best reflects the FAA's current understanding of the pertinent regulatory language." As a result, under the proposed interpretation, if a flight crewmember knows at the time of departure on the last leg of the flight that he or she has not had the required rest, FAR 135.267(d) would prohibit him or her from departing on the last leg of the flight.
Comments to the proposed interpretation are due on or before January 24, 2011. If you have any questions regarding the proposed interpretation or would like further information, you may contact Alex Zektser, Attorney, Regulations Division, Office of Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267- 3073; e-mail: Alex.Zektser@faa.gov.
This proposed interpretation could have a potentially significant impact on the operations of Part 135 on-demand air carriers. I encourage all Part 135 operators and pilots who fly for those operators to submit comments to the proposed interpretation. Your comments are most welcome as we all learn through open dialogue.