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U.S.Deportment of Transportation Federal Aviation Administration Office of the Chief Counsel 800 Independence Ave., S.W. Washington, D.C. 20591



## MAR 1 0 

## 2011
Mr. Kevin McCabe Local 1224 Steward Atlas Pilots Scheduling Committee Chairman 1850 Parkway Drive Anchorage, AK 99504

Dear Mr. McCabe:

In aletter dated December 1,2009 (attached to an e-mail dated March 17, 2010) you requested legal interpretations inresponse to anumber ofissues related to flight time limitations for flag operations. Specifically, you sought an interpretation as to whether the relief from the rest requirement in 14C.F.R. 

### § 121.485(b), granted by Exemption 4317L was determined to be applicable based on scheduled time ordispatch time. 1 You also sought
answers to questions regarding deadhead time and responsibility for compliance with 14 C.F.R. 

### § 121.483.

In aletter dated February 18, 2011, weresponded to yourrequests regarding deadhead time and responsibility for compliance with 

### § 121.483. This letter responds to your remaining requests for interpretation regarding Exemption 4317L.

14C.F.R. § 121.485 applies to air carriers conducting flag operations using an airplane that has acrew ofthree ormore pilots and one additional crewmember. Itrequires acertificate holder to provide apilot, when he returns tohis base from aflight or series offlights, with a rest period that is atleast twice the total number ofhours he flew since the last rest period at his base.
Exemption 4317L, however, allows Air Transport Association member airlines and other similarly situated part 121 air carriers to conduct flag operations with acrew ofthree or more pilots and one additional crewmember, forup to 12hours within a24 hour period without providing the "double out" rest requirement found in § 121.485(b). When Exemption 4317 was originally issued inMay 1985, this exemption was subject to two conditions and limitations:

• Condition 1: "No pilot may be scheduled to flyinan airplane that has acrew ofthree
or more pilots and an additional flight crewmember formore than 12hours during

IOn February 2, 2011, Flight Standards (AFS) extended Exemption 4317L to Apri130, 2013. This extension makes no substantive changes, although the exemption number has been changed to 9825A. Thus, for purposes ofconsistency with the request for interpretation, we will continue to refer to Exemptions 4317 and 4317L throughout this response.2

any 24 consecutive hours unless the certificate holder complies with the provisions ofSection 121.485." See Exemption 4317.

• Condition 2: "Any pilot who is away from his/her base on an airplane that has acrew ofthree ormore pilots and an additional flight crewmember and is scheduled to fly
on any flight or series offlights formore than 12hours during any 24 consecutive hours, shall be given, upon return to his/her base from any flight or series offlights, a rest period that is atleast twice the total number ofhours he/she flew since the last restperiod athis/her base." See Exemption 4317.

These two conditions have not been changed since the original exemption was issued. Compare Exemption 4317 with Exemption 4317L. Thus, in order for an air carrier to be exempt from the "double out" rest requirement of 

### § 121.485(b) the air carrier must meet these same conditions and must not schedule those flightcrew members to fly for more than 12hours during any 24 consecutive hours.2

In your letter, you ask whether Exemption 4317L is available ifaflight that is scheduled for less than 12hours isultimately dispatched with aflight time greater than 12hours. You express concern that itmay bepossible to schedule aflight that fits within the scheduling requirements ofthe exemption by "using ahigher mach number, orusing older fixed seasonal block times" but then dispatch the flight for atime that exceeds the maximum flight time that may be scheduled in order to take advantage ofthe exemption (Le., 12hours).

Ifan air carrier's flight time scheduling practices arebebased onrealistic assumptions regarding the circumstances ofthe flight, but atthe time ofdeparture (Le. dispatch), aflight is not expected to reach its destination within the scheduled time due circumstances beyond the control ofthe air carrier, the FAA does not consider aflight crewmember to be scheduled for flight time in excess ofthe flight time limitations. Inexamining whether an air carrier's scheduling practices comply with the limitations forthe scheduling offlight time contained in subpart R (flight time limitations applicable to flag operations) the agency considers the "circumstances beyond the control ofthe air carrier" exception applicable to domestic operations. See 14C.F.R. § 121.471(g); Legal Interpretation 1991-8 (applying the § 121.471(g) exception to Subpart R). The exception, found in 14C.F.R. § 121.471(g) states,
A flight crewmember isnot considered tobe scheduled for flight time in excess of flight time limitations ifthe flights to which he is assigned are scheduled and normally terminate within the limitations, but due to circumstances beyond the control ofthe air carrier (such as adverse weather conditions), are not atthe time of departure expected to reach their destination within the scheduled time.

2Exemption 4317L allows "ATA-member airlines and other similarly situated part 121 air carriers to conduct flights ofless than 12hours duration with an airplane

...without requiring the rest period following that flight to be twice the hours flown since the lastrest period at each flight crew's home base." The introductory language ofthe exemption refers to flights of "less than 12hours." However, the conditions that must be met for an air carrier to take advantage ofthe exemption state that apilot must not be scheduled for "more than 12hours." Since the conditions state the requirements for the exemption, the breakpoint inthe conditions (i.e., "more than 12hours") must be given meaning throughout the exemption.3

See 14C.F.R. § 121.471(g). This exception should also be considered when making a determination regarding whether the conditions ofExemption 4317L have been met because the scheduling language in Exemption 4317L is similar to the flight time scheduling language in Subpart Rto which the exception applies.

Pursuant to the "circumstances beyond the control ofthe air carrier" exception, an air carrier will not be found to be inviolation ofthe limits on scheduled flight time ifthe air carrier's schedule isbased on realistic assumptions about the circumstances ofthe flight, and the delay is due to circumstances truly unforeseeable orbeyond the air carrier's control. See Legal Interpretation from Rebecca B. MacPherson to Patrick M. Ryan (February 23, 2006); Legal Interpretation 1991-8; Legal Interpretation 1991-29. We note that "The Flight Standards service believes that the technological innovations in communications, weather reporting, and flight planning have greatly enhanced an air carrier's ability to accurately compute and predict scheduled flight times." See Legal Interpretation from Rebecca B. MacPherson to Patrick M. Ryan (February 23, 2006). Therefore, since some airtraffic control or weather events likely to result in delay areknown well in advance ofaparticular flight, the facts surrounding aparticular carrier's scheduling practices and acomparison of scheduled and actual flight times must be examined to determine whether the carrier creates realistic schedules. See Legal Interpretation from Rebecca B. MacPherson to Patrick M. Ryan {February 23, 2006). Legal Interpretation 1991-29. See e.g. Legal Interpretation 1990-25 (accepting United's statistics showing that approximately 67 percent offlights during a single month that were completed within the scheduled flight time, as representative ofrealistic scheduling); Legal Interpretation 1991-8 (explaining that after an audit ofUnited' s scheduled and actual flight times forwinter and summer Pacific operations, it appeared that United's flights operated within the scheduled time approximately 85 percent to 95 percent ofthe time, which inthe agency's view, demonstrated that United was scheduling realistically).
Thus, for an air carrier's schedule to fitwithin the limitations ofExemption 4317L notwithstanding agreater dispatch time, the aircarrier's schedule must be based on realistic assumptions about the circumstances ofthe flight. However, given the limited information provided with your request regarding the criteria Atlas Airuses inits scheduling practices and the absence ofinformation regarding actual flight times, we cannot make a determination as to whether Atlas Air is creating suchrealistic schedules.

We appreciate your patience and trust that the above responds to the outstanding concerns raised in your request for interpretation. Ifyou need further assistance, please contact my staff at (202) 267-3073. This response was prepared by Sara Mikolop, Attorney, Operations Law Branch ofthe Regulations Division ofthe Office ofthe Chief Counsel, and coordinated with the Air Transportation Division ofthe Flight Standards Service. Sincerely,

# R~~7rtJAssistant Chief Counsel for Regulations, AGC-200