```

[Federal Register Volume 78, Number 63 (Tuesday, April 2, 2013)]
[Proposed Rules]
[Pages 19630-19632]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07375]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2012-1239]

Interpretation of the Rest Requirements of Nonstop International 
Supplemental Operations

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Draft Interpretation.

-----------------------------------------------------------------------

SUMMARY: This action provides interested persons with the opportunity 
to comment on the FAA's draft interpretation regarding nonstop 
international supplemental operations scheduled for longer than 12 
hours. Additionally, this draft interpretation discusses the 
appropriate international flight time limitations that would apply to 
the operation. As discussed in the draft interpretation, the FAA finds 
that the operation of such flights would be precluded under the flight 
time limitations of the ``U.S. mainland rules'' found in the 
supplemental flight and duty rules. However, the operation could be 
conducted under the ``international rules'' provisions of our 
regulations.

DATES: Comments must be received on or before May 2, 2013.

ADDRESSES: You may send comments identified by docket number FAA-2012-
1239 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.
     Mail: Send Comments to Docket Operations, M-30; U.S. 
Department of Transportation, 1200 New Jersey Avenue SE., West Building 
Ground Floor, Room W12-140, West Building Ground Floor, Washington, DC 
20590-0001.
     Hand Delivery: Take 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: (202) 493-2251.

FOR FURTHER INFORMATION CONTACT: Dean E. Griffith, Attorney, 
International Law, Legislation and Regulations Division, Office of 
Chief Counsel, Federal Aviation Administration, 800 Independence Avenue 
SW., Washington, DC 20591; telephone: (202) 267-3073; email: 
dean.griffith@faa.gov.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to submit written comments, 
data, or views concerning this interpretation. The most helpful 
comments reference a specific portion of the draft interpretation, 
explain the reason for any recommended change, and include supporting 
data. To ensure the docket does not contain duplicate comments, please 
send only one copy of written comments, or if you are filing comments 
electronically, please submit your comments only one time.
    The FAA will file in the docket all comments received, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposal. Before acting on this proposal, the FAA will 
consider all comments received on or before the closing date for 
comments and any late-filed comments if it is possible to do so without 
incurring expense or delay.

Availability of This Draft Interpretation

    You can get an electronic copy using the Internet by--
    (1) Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the docket number or notice number of this proposal.

Background

    The FAA publishes draft legal interpretations when the matter in 
question is likely to be highly controversial or the likely answer has 
the potential to significantly and adversely affect long-standing 
practices that regulated parties have been engaged in, reasonably 
believing that these practices were consistent with FAA regulations. 
The intent is not to seek input on whether the FAA is correct--the FAA 
has the responsibility for interpreting its regulations. Rather, the 
reason for publishing the draft interpretation for comment is to see 
whether there may be unintended consequences for regulated parties that 
merit a further examination of how the agency's regulatory provisions 
should be applied in conjunction with agency policy and guidance 
material.
    We are issuing this draft interpretation because it has come to our 
attention that supplemental air carriers might be misinterpreting and 
misapplying the regulations governing flight time limitations for 
supplemental operations to operate international flight segments longer 
than 12 hours by reading Sec.  121.509 of title 14, Code of Federal 
Regulations in isolation, without also complying with Sec.  121.503(a) 
or, in the alternative, without adequate sleeping facilities for the 
flight crew as required under Sec.  121.523(b). As discussed below, 
such a reading fails to consider the full meaning of the FAA's 
regulations.

Discussion of the Proposal

I. Introduction

    The purpose of this notice of draft interpretation is to address 
whether a supplemental air carrier may conduct an international nonstop 
flight scheduled for more than 12 hours without crew rest facilities on 
board the aircraft. The answer is ``no.''
    For purposes of this interpretation we will use the hypothetical 
example of a supplemental air carrier that has scheduled four pilots to 
conduct a non-

[[Page 19631]]

stop flight lasting 12.5 hours that departs from a point outside of the 
contiguous United States and arrives at a point in the contiguous 
United States. The aircraft is type certificated for two-pilot 
operation.
    Supplemental air carriers conducting overseas and international 
supplemental operations may elect, pursuant to Sec.  121.513, to comply 
with the flight time limitations of Sec. Sec.  121.515 and 121.521 
through 121.525 (commonly referred to as the ``international rules''), 
rather than the flight time limitations found in Sec. Sec.  121.503 
through 121.511 (commonly referred to as the ``U.S. mainland rules''). 
See 14 CFR 121.513. Because this hypothetical flight would operate from 
a point outside the contiguous United States, the carrier would be 
eligible to make the election. See 121.513(a) (stating that a flight 
between a ``place in the 48 contiguous states * * * and any place 
outside thereof'' qualifies for the election).
    We will first evaluate whether the operation could be conducted 
under the ``U.S. mainland rules'' and then discuss how the operation 
could be conducted under the ``international rules.''

II. Flight Time Limitations on Supplemental Operations Conducted Within 
the 48 Contiguous United States

    Section 121.503 sets out the basic flight time limitations and rest 
requirements for pilots during supplemental operations. Section 
121.503(a) establishes that a pilot may be scheduled to ``fly in an 
airplane for eight hours or less during any 24 consecutive hours 
without a rest period during those eight hours.'' \1\ The FAA has 
interpreted the eight-hour period of Sec.  121.503(a) to be a hard 
scheduling limit on block to block time for supplemental operations 
without an intervening rest prior to the eighth hour flown. See Legal 
Interpretation to G.L. Davison, from Edward P. Faberman, Deputy 
Assistant Chief Counsel, Regulations and Enforcement Division (July 17, 
1979) (stating that Sec.  121.503 ``contains an 8 hour limitation'').
---------------------------------------------------------------------------

    \1\ We note that the term ``fly in'' as used in the regulation 
refers to ``block to block time'' rather than flight deck duty time. 
See 14 CFR 42.48-1 (1956); Legal Interpretation to Timothy D. 
Miller, from Donald Byrne, Assistant Chief Counsel (Aug. 27, 1997).
---------------------------------------------------------------------------

    Section 121.503(f) provides an exception to the above 8-hour limit 
for transcontinental non-stop flights, allowing a crewmember to be 
scheduled for ``more than eight but less than 10 hours of continuous 
duty without an intervening rest period'' under certain conditions.
    This exception to the hard limit of 8 hours came about as a result 
of the improvements in aircraft capabilities and range, which led to 
the ability to conduct transcontinental non-stop flights. See footnote 
3. In other words, a flight conducted under the ``U.S. mainland rules'' 
cannot be scheduled to be aloft continuously for more than 8 hours 
unless operating under the exception found in Sec.  121.503(f).
    Section 121.509 establishes flight time limitations for four pilot 
crews in addition to those specified in Sec.  121.503(a). This section 
provides that, in a 24 hour period, a pilot may not be scheduled for 
more than 8 hours of flight deck duty, 16 hours of duty aloft, and 20 
hours of duty. 14 CFR 121.509(a)-(b). Read in the context of Sec.  
121.503(a), a pilot may be scheduled for a total of 16 hours of duty 
aloft, but that time aloft must not occur in legs scheduled for longer 
than 8 hours.\2\ To read Sec.  121.509(a)(2) as permitting up to16 
hours of continuous duty aloft would nullify the prohibition in Sec.  
121.503(a) on scheduled operations of longer than 8 hours without a 
rest period during those 8 hours. Such a reading would not be 
consistent with FAA legal interpretation and would conflict with a 
fundamental principle of statutory interpretation that specific 
provisions must be read in the context of the larger rule. See Legal 
Interpretation to Michael Daly, from James B. Minor, Associate General 
Counsel, Regulations and Codification Division (Jun. 29, 1966) (stating 
that Sec.  121.503(a)-(f) ``contain[s] general flight time limitation 
provisions that apply to all [part 121] supplemental air carrier or 
commercial operations under that Part, regardless of the size of the 
crew''); see, e.g., United States Sav. Ass'n v. Timbers of Inwood 
Forest Assocs., 484 U.S. 365, 371 (1988) (``A provision that may seem 
ambiguous in isolation is often clarified by the remainder of the 
statutory scheme * * * because only one of the permissible meanings 
produces a substantive effect that is compatible with the rest of the 
law.'' (citation omitted)); Weinberger v. Hynson, Westcott & Dunning, 
Inc., 412 U.S. 609, 631-32 (1973) (``It is well established that our 
task in interpreting separate provisions of a single Act is to give the 
Act `the most harmonious, comprehensive meaning possible' in light of 
the legislative policy and purpose.'').
---------------------------------------------------------------------------

    \2\ As an example, the following schedule for a four pilot crew 
in an aircraft type certificated for two pilots would comply with 
Sec. Sec.  121.503(a) and 121.509. A pilot is scheduled to report at 
0000 for preflight duty. His first flight is scheduled to depart 
``A'' at 0100 and arrive at ``B'' at 0900 (8 hours of flight time). 
Assuming that the four pilots evenly divide time at the controls, on 
that flight he will be on flight deck duty for 4 hours. After the 
first flight lands he will perform 1 hour of post-flight duty (0900-
1000), then rest from 1000 to 1400. From 1400-1600 the pilot will 
perform preflight duty for his second scheduled flight which is 
scheduled to depart ``B'' at 1600 and arrive at ``A'' at 2359 (7:59 
of flight time). Again, assuming that the four pilot crew evenly 
divides time at the controls, on that flight he will be on flight 
deck duty for 4 hours. Accordingly, the pilot will have accrued 8 
hours of flight deck duty, 16 hours aloft, and performed 20 hours of 
duty during the 24 hour period in compliance with Sec. Sec.  
121.503(a) and 121.509.
---------------------------------------------------------------------------

    Accordingly, unless the hypothetical operation is scheduled in 
segments of eight hours or less it cannot be conducted under the flight 
time limitations contained in Sec. Sec.  121.503-.511.\3\ In other 
words, a supplemental

[[Page 19632]]

carrier would not be able to conduct this operation as a non-stop 
flight under these sections of the rules.
---------------------------------------------------------------------------

    \3\ We note that operations using the flight time limitations of 
Sec. Sec.  121.503 through 121.511 may exceed the 8 hour flight 
segment time limit under two circumstances. First, transcontinental 
operations may be scheduled for a continuous flight time of up to 10 
hours under an exception to Sec.  121.503(a). See Sec.  121.503(f). 
This exception permits certificate holders to schedule a flight 
crewmember for a transcontinental non-stop flight consisting of 
``more than eight but not more than 10 hours of continuous duty 
aloft without an intervening rest period'' if certain conditions are 
met. In 1954 the Civil Aeronautics Board (CAB) adopted an exception 
(similar to current Sec.  121.503(f)) applicable to domestic 
scheduled operations that were then subject to an 8 hour limitation 
on duty aloft without an intervening rest period. See 14 CFR 
40.320(b) (1954) (flight time limitations for domestic air 
carriers); 19 FR 3759 (June 19, 1954) (adopting SR-405). The CAB 
stated that the then current, 8 hour rule ``prohibits domestic 
nonstop flight operations of more than eight hours' duration.'' See 
19 FR 3760. The change was effected to permit non-stop 
transcontinental flights between the east coast and the west coast 
which, unlike flights in the opposite direction, could not be 
completed in the 8 hour period. Id. The CAB noted that ``if west-
bound nonstop service is to be continued to be made available to the 
public, some modification of the eight-hour rule will be 
necessary.'' Id.
    In 1955, the CAB established SR-410 which extended the 8-hour 
rule for supplemental air carriers to 10 hours for transcontinental 
nonstop flights on ``substantially the same basis as they are 
currently applied to scheduled air carriers.'' See 20 FR 2675 (Apr. 
22, 1955) (establishing SR-410). Therefore, based on the language of 
Sec.  121.503(f), which is derived from SR-410, it is clear that the 
maximum time aloft for a nonstop flight would be 10 hours, and only 
if it meets the requirements contained in the rule. All other 
flights conducted pursuant to the 121.503-.511 rules would be 
limited to a maximum 8 hours continuously aloft.
    Additionally, when scheduled realistically, flights may exceed 
the 8 hour continuous flying time limit due to circumstances beyond 
the control of the certificate holder. In such circumstances, Sec.  
121.503(b) requires the pilot to have 16 hours of rest prior to 
being assigned any duty with the certificate holder. See Legal 
Interpretation to Randall C. Kania, from Rebecca MacPherson, 
Assistant Chief Counsel, Regulations Division (Apr. 29, 2004) 
(stating that a pilot who has already flown more than 8 hours in a 
24-hour period may not take off until he has received the rest 
required by 121.503(b)); Legal Interpretation to John R. Griffith, 
from George L. Thompson, Associate Regional Counsel, ANE-7, (Feb. 5, 
1975) (stating that the purpose of Sec.  121.503(b) ``is to assure 
an adequate rest period when such deviations do occur'').
---------------------------------------------------------------------------

III. Overseas and International Supplemental Operation Flight Time 
Limitations

    The next question is whether the flight could be conducted under 
the ``international rules'' found in Sec.  121.515 and Sec. Sec.  
121.521 through 121.525 if the certificate holder makes that election 
under Sec.  121.513. In connection with that question is the issue of 
when and under what circumstances ``adequate sleeping quarters'' are 
required.
    First, Sec.  121.521 states that an airman may not be scheduled to 
be ``aloft as a member of the flight crew in an airplane that has a 
crew of two pilots and at least one additional flight crewmember for 
more than 12 hours during any 24 consecutive hours.'' Because the 
hypothetical flight in question is scheduled to be aloft for 12.5 
hours, it could not be conducted with only two pilots and one 
additional flight crewmember because a certificate holder may only 
schedule this crew complement for 12 total hours aloft or less.
    Next, Sec.  121.523 establishes the flight time limitations for a 
crew of three or more pilots and additional airmen as required. Unlike 
Sec.  151.521, this section allows flights lasting longer than 12 
hours. In consideration of the longer flights, Sec.  121.523 requires a 
crew of at least three pilots and additional airmen as required, 
provides additional rest provisions, limits flight deck duty time for 
flight engineers and navigators, and requires the certificate holder to 
``provide adequate sleeping quarters on the airplane whenever an airman 
is scheduled to be aloft as a flight crewmember for more than 12 hours 
during any 24 consecutive hours.'' Sec.  121.523(b). Because the 
operation in question is scheduled with a four-pilot complement, it 
would meet the crew requirements under this section. However, in order 
to operate under this provision, the certificate holder would need to 
comply with all of the provisions of Sec.  121.523, including the need 
to provide adequate sleeping quarters on the airplane.\4\
---------------------------------------------------------------------------

    \4\ The FAA has consistently interpreted ``adequate sleeping 
quarters on the airplane'' to mean a bunk or a berth, but that it is 
a matter of safety policy to consider each air carrier's means of 
compliance on its individual merits. See Legal Interpretation to 
Daniel J. Wells, from Donald P. Byrne, Assistant Chief Counsel for 
Regulations (Sept. 22, 2003); Legal Interpretation to William W. 
Edmunds, Jr., from John Cassady, Assistant Chief Counsel, 
Regulations and Enforcement Division (Apr. 22, 1986). A passenger 
seat, even if it reclines, is not considered to be adequate sleeping 
quarters. Id.
---------------------------------------------------------------------------

IV. Conclusion

    Therefore, the hypothetical supplemental air carrier operation in 
which four pilots are scheduled to conduct a non-stop flight lasting 
12.5 hours, between a point outside the contiguous United States and a 
point in the contiguous United States, or other locations permitting 
the Sec.  121.513 election, could only be operated under the flight 
time limitations of Sec.  121.523 (including the required crew rest 
facilities on board the aircraft). It could not be conducted as 
proposed under the provisions of Sec. Sec.  121.503, 121.509 or 
121.521.

    Issued in Washington, DC, on March 25, 2013.
Mark W. Bury,
Acting Assistant Chief Counsel for International, Law, Legislation and 
Regulations, AGC-200.
[FR Doc. 2013-07375 Filed 4-1-13; 8:45 am]
BILLING CODE 4910-13-P
```