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[Federal Register Volume 77, Number 106 (Friday, June 1, 2012)]
[Proposed Rules]
[Pages 32441-32444]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13290]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2011-0045]

Proposed Legal Interpretation

AGENCY: Federal Aviation Administration (FAA).

ACTION: Proposed interpretation.

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SUMMARY: The FAA is considering clarifying prior legal interpretations 
regarding pilot in command discretion under 14 CFR 121.547(a)(3) and 
(a)(4).

DATES: Comments must be received on or before July 31, 2012.

ADDRESSES: You may send comments identified by Docket Number FAA-2011-
0045 using any of the following methods:
    Federal eRulemaking Portal: Go to http://www.regulations.gov and 
follow the online instructions for sending your comments 
electronically.

[[Page 32442]]

    Mail: Send comments to Docket Operations, M-30; U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, West Building 
Ground Floor, Washington, DC 20590-0001.
    Hand Delivery or Courier: Bring comments to Docket Operations in 
Room W12-140 of the West Building Ground Floor at 1200 New Jersey 
Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Fax: Fax comments to Docket Operations at 202-493-2251.

FOR FURTHER INFORMATION CONTACT: Sara Mikolop, Attorney, Regulations 
Division, Office of the Chief Counsel, Federal Aviation Administration, 
800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-
3073.

SUPPLEMENTARY INFORMATION: On May 12, 2010, the FAA received a request 
for a legal interpretation from the Independent Pilots Association 
(IPA) regarding the consequences of deadhead transportation in 
connection with flight time limitations for flag operations, and the 
conditions for admission to an aircraft flight deck found in 14 CFR 
121.547 and the United Parcel Service Flight Operations Manual (UPS 
FOM). We propose a three-part response to IPA's inquiry. First, we will 
address the issues regarding deadhead transportation. Second, we will 
address the issues regarding admission to the flight deck, in which we 
propose to clarify prior interpretations regarding pilot in command 
discretion under 14 CFR 121.547(a)(3) and (a)(4). Third, we will 
address the issues regarding certain provisions in the UPS FOM 
regarding admission to the flight deck.

I. Deadhead Transportation \1\
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    \1\ We assume for purposes of this proposed legal interpretation 
that all operations are conducted under the flag operating rules. 
Thus, the analysis of flight time limitations in this proposed legal 
interpretation is limited to the current applicable flight time 
limitations found in subpart R of part 121.
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    An individual is considered to be in deadhead transportation when 
an employing air carrier requires that individual to ride as a 
passenger to a location at which he or she will serve as a flightcrew 
member or from a location at which the individual was relieved from 
duty as a flightcrew member to return to his home station.\2\ See 14 
CFR 121.471(f); Legal Interpretation from Donald P. Byrne to James W. 
Johnson (May 9, 2003). In order to qualify as deadhead transportation, 
the transportation (1) Cannot be local in character, (2) must be 
required of the flightcrew member by the air carrier and, (3) must be 
arranged by the air carrier. See Legal Interpretation 1992-48. Assuming 
that all three of these qualifiers are met, an individual assigned by a 
certificate holder to a flight, without being assigned to any duties 
during that flight, will be considered to be in deadhead 
transportation. We caution, however, that deadhead transportation is 
not considered part of a flightcrew member's rest period under any of 
the regulations governing flight time limitations. See 14 CFR 
121.471(f), 121.491 and 121.519.
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    \2\ 14 CFR 121.471(f) (flight time limitations applicable to 
domestic operations) provides a description of deadhead 
transportation which is used in the same context throughout the part 
121 regulatory framework for domestic, flag and supplemental flight 
time limitations. Section 121.471(f) states, ``Time spent in 
transportation, not local in character, that a certificate holder 
requires of a flight crewmember and provides to transport the 
crewmember to an airport at which he is to serve on a flight as a 
crewmember, or from an airport at which he was relieved from duty to 
return to his home station, is not considered part of a rest 
period.''
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    Although time spent in deadhead transportation is not included as 
part of a flightcrew member's rest, it is also not included in 
calculations of flight time limitations for a flightcrew member engaged 
in flag operations. Flight time limitations for flightcrew members in 
flag operations are found in subpart R of part 121. Subpart R, places 
limits on the amount of time an individual may act or may be scheduled 
to act as a flightcrew member for an air carrier. For purposes of 
determining compliance with the flight time limitations in subpart R, 
flight time calculations are based on total block-to-block time. See 
Legal Interpretation 1997-20; Legal Interpretation 1990-27 (stating 
that the language in Sec.  121.483(a), ``no carrier may schedule a 
pilot to fly * * *,'' prescribes a block-to-block limitation); Legal 
Interpretation 1989-1 (distinguishing ``scheduled to fly'' from the 
term, ``flight deck duty'' (used in subpart S) which means work as a 
flightcrew member on the flight deck).
    These flight time limitations can only be violated when an 
individual acts or is scheduled to act as a flightcrew member for an 
air carrier. Thus, the time during which one is assigned to deadhead 
transportation does not count towards flight time limits because, in 
order to be assigned to deadhead transportation, one cannot also be 
assigned to a flight as a flightcrew member. However, we must caution 
that if a person in deadhead transportation performs duty during the 
course of the flight as a pilot, flight engineer, or flight navigator, 
that person becomes a flightcrew member. See 14 CFR Sec.  1.1 (defining 
a flightcrew member as ``[A] pilot, flight engineer, or flight 
navigator assigned to duty in an aircraft during flight time.''). As 
such, the total block-to-block time for the flight will accrue towards 
the flight time limitations found in subpart R.

II. Admission to the Flight Deck

    IPA's request for interpretation raises two broad issues related to 
the application of Sec.  121.547(a) which identifies the individuals 
who may be admitted to the flight deck of an aircraft operating under 
part 121 and the conditions for such admission.\3\ The first issue we 
will address involves the identification of the appropriate provision 
within Sec.  121.547(a) by which crewmembers and individuals in 
deadhead transportation may be admitted to the aircraft flight deck. 
The second issue we will address involves the exercise of pilot in 
command (PIC) discretion regarding the admission of certain individuals 
to the flight deck.
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    \3\ Section 121.547(a) states:
    (a) No person may admit any person to the flight deck of an 
aircraft unless the person being admitted is--
    (1) A crewmember;
    (2) An FAA air carrier inspector, a DOD commercial air carrier 
evaluator, or an authorized representative of the National 
Transportation Safety Board, who is performing official duties;
    (3) Any person who--
    (i) Has permission of the pilot in command, an appropriate 
management official of the part 119 certificate holder, and the 
Administrator; and
    (ii) Is an employee of--
    (A) The United States; or
    (B) A part 119 certificate holder and whose duties are such that 
admission to the flightdeck is necessary or advantageous for safe 
operation; or
    (C) An aeronautical enterprise certificated by the Administrator 
and whose duties are such that admission to the flightdeck is 
necessary or advantageous for safe operation.
    (4) Any person who has the permission of the pilot in command, 
an appropriate management official of the part 119 certificate 
holder and the Administrator. Paragraph (a)(2) of this section does 
not limit the emergency authority of the pilot in command to exclude 
any person from the flight deck in the interests of safety.
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    Regarding the first issue raised by IPA, crewmembers may be 
admitted to the flight deck pursuant to Sec.  121.547(a)(1) and 
individuals in deadhead transportation may be admitted to the flight 
deck pursuant to Sec. Sec.  121.547(a)(3) or (a)(4). The regulation 
plainly states that only crewmembers may be admitted to the flight deck 
of an aircraft under the authority of Sec.  121.547(a)(1). As discussed 
earlier in this proposed legal interpretation, an individual assigned 
to a flight as a crewmember cannot, at the same time, be assigned to 
deadhead transportation.

[[Page 32443]]

Thus an individual assigned to deadhead transportation may not be 
admitted to the flight deck under Sec.  121.547(a)(1).
    An individual in deadhead transportation may, however, be admitted 
to the flight deck under 14 CFR 121.547(a)(3) or (a)(4). Section 
121.547(a)(3) allows flight deck access for employees of certain 
entities, including employees of part 119 certificate holders, whose 
presence on the flight deck is necessary or advantageous for safe 
operation. Thus, this provision could be used to allow persons in 
deadhead transportation access to the flight deck. Section 
121.547(a)(4) is more general than Sec.  121.547(a)(3) in that it 
applies to ``any person.''
    The second broad issue raised by IPA involves the PIC's exercise of 
discretion regarding flight deck admission under Sec.  121.547(a). This 
issue has been discussed in prior legal interpretations examining the 
PIC's overall safety responsibility, as well as the implication of the 
PIC prior permission requirements that appear in Sec. Sec.  
121.547(a)(3) and (a)(4) but not in (a)(1) or (a)(2).
    Individuals who may be admitted to the flight deck under Sec. Sec.  
121.547(a)(1) and (a)(2) (i.e., crewmembers, FAA inspectors, Department 
of Defense Commercial air carrier evaluators and certain National 
Transportation Safety Board representatives) serve a presumed safety 
role and as such, are not subject to the same prerequisites for 
admission as those individuals identified in Sec. Sec.  121.547(a)(3) 
and (a)(4). In contrast with Sec. Sec.  121.547(a)(1) and (a)(2), 
admission to the flight deck under either Sec. Sec.  121.547(a)(3) or 
(a)(4) requires prior permission from the PIC, the FAA Administrator 
and an appropriate management official of the certificate holder. In 
promulgating Sec. Sec.  121.547(a)(3) and (a)(4), the FAA has 
recognized a legitimate need to allow individuals who do not fall 
within Sec. Sec.  121.547(a)(1) and (a)(2) onto the flight deck. The 
FAA has also recognized that this need for flight deck access does not 
arise out of a presumed safety need. Accordingly, the PIC has greater 
latitude to deny an individual access to the flight deck under 
Sec. Sec.  121.547 (a)(3) and (a)(4).
    In prior legal interpretations, we stated that the PIC permission 
provision provides the PIC unfettered discretion whether to admit 
certain individuals to the flight deck under a Sec. Sec.  121.547(a)(3) 
or (a)(4) situation. See Legal Interpretation from Joseph A. Conte to 
Brigitte Lakah (December 16, 2002); Legal Interpretation 2001-7. But 
see Legal Interpretation 2003-1 (distinguishing a ``pure'' Sec. Sec.  
121.547(a)(3) or (a)(4) situation as the only time the PIC has 
unfettered discretion and stating that a ``pure'' Sec. Sec.  
121.547(a)(3) or (a)(4) situation does not exist when an individual's 
presence on the flight deck is required by another rule (e.g., Sec.  
121.550 regarding secret service agents)). We based these 
interpretations on the rationale that a PIC's safety authority would be 
undermined if his or her decision to deny permission for certain people 
to enter the flight deck in a Sec. Sec.  121.547 (a)(3) or (a)(4) 
situation was challenged by his or her employer. See Legal 
Interpretation 2003-1 (indicating that post flight disciplinary 
proceedings taken by an air carrier in a pure Sec. Sec.  121.547(a)(3) 
or (a)(4) situation interferes with the duties and responsibilities 
required of a PIC by regulation); Legal Interpretation from Joseph A. 
Conte to Brigitte Lakah (December 16, 2002) (stating that second-
guessing a PIC's decision to deny permission for certain people to 
enter the flight deck would undermine ``[T]he safety underpinning for 
having a `PIC-permission-provision' in the regulations.''); Legal 
Interpretation 2001-7.
    The PIC bears the responsibility for the safety of the passengers, 
crew, cargo and aircraft during flight. See 14 CFR 91.3 and 121.535(e)-
(f). To that end, it continues to be the PIC's decision as to whether 
there is a safety-related reason for excluding from the flight deck an 
individual eligible for admission under Sec. Sec.  121.547(a)(3) or 
(a)(4). See e.g. Legal Interpretation 2001-7 (identifying numerous 
potential reasons for denying admission to the flight deck in a 
Sec. Sec.  121.547(a)(3) or (a)(4) situation such as rough weather, 
distraction to flightcrew, a complex operation requiring heightened 
attention by the flightcrew, all of which are safety-related).
    However, to the extent that prior legal interpretations state or 
simply imply that air carriers have no ability to question a PIC in 
their employ regarding his or her decision to deny flight deck access 
to an individual for a reason that is not based on a safety concern, we 
believe the agency overstated its position. Accordingly, we propose to 
rescind the relevant portions of those prior legal interpretations. The 
FAA believes that at an appropriate time and venue, air carriers must 
be able to question why a PIC decided to exclude certain individuals 
from the flight deck when there was no apparent safety issue.
    While, as we have stated above, the PIC is responsible for the 
safety of the passengers, crew, cargo and aircraft during flight, we 
also hold air carriers responsible for the safe conduct of all aspects 
of their operations. See generally 14 CFR part 121. But, limiting air 
carriers' ability to manage their workforce, when there is no apparent 
risk to aviation safety, is outside the scope of the agency's safety 
oversight responsibilities.
    The FAA's interest is in promoting safety and as such, we would be 
concerned with any action by the carrier that could reasonably impact 
the ability of the PIC to exercise his or her authority to make a 
determination that access to the flight deck needs to be denied for the 
safety of the operation. To that end, the agency presumption in any 
investigation will be that the PIC acted appropriately. The FAA 
expects, however, that the PIC will be able to articulate a safety-
related reason for denying access to the flight deck in situations 
subject to Sec. Sec.  121.547(a)(3) and (a)(4).

III. United Parcel Service Flight Operations Manual

    The United Parcel Service Flight Operations Manual (UPS FOM) 
provides for the UPS implementation of Sec.  121.547(a). See UPS FOM, 
Administration, Jumpseat Policies and Procedures, 02-04, Priority 
Descriptions (Rev No: 40, Rev Date: 08/31/10). The UPS FOM includes a 
list that describes numerous categories of potential jumpseat occupants 
and provides a priority order for their carriage. See id. The 
categories of potential jumpseat occupants include potential 
crewmembers and individuals in deadhead transportation. See id. The UPS 
FOM identifies as ``Priority 3A'' jumpseat occupants, ``UPS crewmembers 
who have been provided a commercial ticket for a deadhead, but elect to 
travel via the Company jumpseats instead * * *'' See id. The UPS FOM 
identifies, ``U.S. Government couriers (U.S. Government employees 
only), Loadmasters, UPS Maintenance and Flight Operations personnel * * 
* (Note)'' as priority 3 jumpseat occupants. The ``Note'' referred to 
in the priority 3 description further explains the priority 3 jumpseat 
occupants as follows:

    Note:  Priority 3 UPS crewmember flight deck occupants are 
important to UPS flight operations. These priority 3 flight deck 
occupants are UPS-assigned other crewmembers and these on-duty 
crewmembers will assist the operating crew at the direction of the 
Captain during normal and emergency operations. These duties enhance 
the security and safety of the flight operation; thus, these 
crewmembers gain

[[Page 32444]]

admission to the flight deck under FAR 121.547 (a)(1). As a result, 
the Captain's discretion, regarding these other crewmembers, is not 
unfettered. The exclusion of these crewmembers from the flight deck 
requires that the Captain has a compelling explanation, which is 
valid only if an emergency situation exists whereby the presence of 
these crewmembers is not in the interests of aviation safety.

    See id. Based on the note associated with the description of 
individuals identified for priority 3 status by the UPS FOM, it appears 
that UPS intends for loadmasters and UPS maintenance and flight 
operations personnel to be assigned to perform duties during flight and 
therefore meet the definition of crewmembers. It is possible that these 
individuals meet the definition of ``crewmember'' if they are 
``assigned to perform duty in an aircraft during flight time.'' See 14 
CFR 1.1. See e.g. Legal Interpretation 1986-12 (stating that if a 
mechanic employee of an air carrier is assigned duty during flight 
time, then the mechanic is a ``crewmember'' and may ride in the 
jumpseat pursuant to Sec.  121.547(a)(1)). It is also possible that 
some individuals could meet the definition of flightcrew member 
depending on their airman qualifications and the type of duty assigned, 
thus triggering the flight time limitations in Subpart R.\4\ For 
purposes of evaluating compliance with Sec.  121.547(a), the priority 
descriptions in the UPS FOM are not determinative. A determination as 
to whether a jumpseat occupant meets the definition of crewmember or 
flightcrew member for a particular operation would have to be made on a 
case-by-case basis because the language in the UPS FOM does not provide 
sufficient detail to make a blanket determination. If a particular 
jumpseat occupant meets the definition of flightcrew member or 
crewmember then this individual would gain admission to the flight deck 
under Sec.  121.547(a)(1). If it is determined that a particular 
individual seeking admission to the flight deck has been assigned to 
the flight for purposes of deadhead transportation, with the intent 
that he or she travel primarily as a passenger, then this individual 
may gain access to the flight deck with the approvals described in 
Sec. Sec.  121.547(a)(3) or (a)(4).
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    \4\ 14 CFR 121.385(a) provides the regulatory framework for 
required crewmembers. It states, ``No certificate holder may operate 
an airplane with less than the minimum flight crew in the 
airworthiness certificate or the Airplane Flight Manual (AFM) 
approved for that type airplane and required by this part for the 
kind of operation being conducted.'' To the extent that a 
certificate holder assigns a deadheading individual, flightcrew 
member or crewmember to a particular operation and that individual 
is not required for the operation by the aircraft type certificate, 
operating regulations or AFM, the FAA would not view that individual 
as a ``required crewmember'' for purposes of compliance with 14 CFR 
121.385(a).

    Issued in Washington, DC, on May 24, 2012.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations, AGC-200.
[FR Doc. 2012-13290 Filed 5-31-12; 8:45 am]
BILLING CODE 4910-13-P
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