o

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 a letter dated December 1, 2009 (attached to an e-mail dated March 17, 2010) you

requested legal interpretations in response to a number of issues related to flight time

limitations for flag operations. Specifically, you sought an interpretation as to whether the

relief from the rest requirement in 14 C.F.R. § 121.485(b), granted by Exemption 4317L was

determined to be applicable based on scheduled time or dispatch time. 1 You also sought

answers to questions regarding deadhead time and responsibility for compliance with 14

C.F.R. § 121.483.

In a letter dated February 18, 2011, we responded to your requests regarding deadhead time

and responsibility for compliance with § 121.483. This letter responds to your remaining

requests for interpretation regarding Exemption 4317L.

14 C.F.R. § 121.485 applies to air carriers conducting flag operations using an airplane that

has a crew of three or more pilots and one additional crewmember. It requires a certificate

holder to provide a pilot, when he returns to his base from a flight or series of flights, with a

rest period that is at least twice the total number of hours 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 a crew of three or

more pilots and one additional crewmember, for up to 12 hours within a 24 hour period

without providing the "double out" rest requirement found in § 121.485(b). When

Exemption 4317 was originally issued in May 1985, this exemption was subject to two

conditions and limitations:

• Condition 1: "No pilot may be scheduled to fly in an airplane that has a crew of three

or more pilots and an additional flight crewmember for more than 12 hours 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 of consistency 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

of Section 121.485." See Exemption 4317.

• Condition 2: "Any pilot who is away from his/her base on an airplane that has a crew

of three or more pilots and an additional flight crewmember and is scheduled to fly

on any flight or series of flights for more than 12 hours during any 24 consecutive

hours, shall be given, upon return to his/her base from any flight or series of flights, a

rest period that is at least twice the total number of hours he/she flew since the last

rest period at his/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

12 hours during any 24 consecutive hours.2

In your letter, you ask whether Exemption 4317L is available if a flight that is scheduled for

less than 12 hours is ultimately dispatched with a flight time greater than 12 hours. You

express concern that it may be possible to schedule a flight that fits within the scheduling

requirements of the exemption by "using a higher mach number, or using older fixed

seasonal block times" but then dispatch the flight for a time that exceeds the maximum flight

time that may be scheduled in order to take advantage of the exemption (Le., 12 hours).

If an air carrier's flight time scheduling practices are be based on realistic assumptions

regarding the circumstances of the flight, but at the time of departure (Le. dispatch), a flight

is not expected to reach its destination within the scheduled time due circumstances beyond

the control of the air carrier, the FAA does not consider a flight crewmember to be

scheduled for flight time in excess of the flight time limitations. In examining whether an

air carrier's scheduling practices comply with the limitations for the scheduling of flight

time contained in subpart R (flight time limitations applicable to flag operations) the agency

considers the "circumstances beyond the control of the air carrier" exception applicable to

domestic operations. See 14 C.F.R. § 121.471(g); Legal Interpretation 1991-8 (applying the

§ 121.471(g) exception to Subpart R). The exception, found in 14 C.F.R. § 121.471(g)

states,

A flight crewmember is not considered to be scheduled for flight time in excess of

flight time limitations if the flights to which he is assigned are scheduled and

normally terminate within the limitations, but due to circumstances beyond the

control of the air carrier (such as adverse weather conditions), are not at the time of

departure expected to reach their destination within the scheduled time.

2 Exemption 4317L allows "ATA-member airlines and other similarly situated part 121 air carriers to conduct

flights of less than 12 hours duration with an airplane ... without requiring the rest period following that flight to

be twice the hours flown since the last rest period at each flight crew's home base." The introductory language

of the exemption refers to flights of "less than 12 hours." However, the conditions that must be met for an air

carrier to take advantage of the exemption state that a pilot must not be scheduled for "more than 12 hours."

Since the conditions state the requirements for the exemption, the breakpoint in the conditions (i.e., "more than

12 hours") must be given meaning throughout the exemption.
3

See 14 C.F.R. § 121.471(g). This exception should also be considered when making a

determination regarding whether the conditions of Exemption 4317L have been met because

the scheduling language in Exemption 4317L is similar to the flight time scheduling

language in Subpart R to which the exception applies.

Pursuant to the "circumstances beyond the control of the air carrier" exception, an air carrier

will not be found to be in violation of the limits on scheduled flight time if the air carrier's

schedule is based on realistic assumptions about the circumstances of the flight, and the

delay is due to circumstances truly unforeseeable or beyond 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 air traffic

control or weather events likely to result in delay are known well in advance of a particular

flight, the facts surrounding a particular carrier's scheduling practices and a comparison 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 of flights

during a single month that were completed within the scheduled flight time, as

representative of realistic scheduling); Legal Interpretation 1991-8 (explaining that after an

audit of United' s scheduled and actual flight times for winter and summer Pacific

operations, it appeared that United's flights operated within the scheduled time

approximately 85 percent to 95 percent of the time, which in the agency's view,

demonstrated that United was scheduling realistically).

Thus, for an air carrier's schedule to fit within the limitations of Exemption 4317L

notwithstanding a greater dispatch time, the air carrier's schedule must be based on realistic

assumptions about the circumstances of the flight. However, given the limited information

provided with your request regarding the criteria Atlas Air uses in its scheduling practices

and the absence of information regarding actual flight times, we cannot make a

determination as to whether Atlas Air is creating such realistic schedules.

We appreciate your patience and trust that the above responds to the outstanding concerns

raised in your request for interpretation. If you need further assistance, please contact my

staff at (202) 267-3073. This response was prepared by Sara Mikolop, Attorney, Operations

Law Branch of the Regulations Division of the Office of the Chief Counsel, and coordinated

with the Air Transportation Division of the Flight Standards Service.

Sincerely,

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