The FAA today published a Request For Public Comments regarding the flight time and rest period rules contained in FAR’s 135.263(d) and 135.267(b), (d) and (e) in response to several questions it has received for interpretation of these regulations. Although the FAA has previously issued interpretations on some, but no all, of the questions raised by these FAR’s, in its response to the present questions “the FAA intends to clarify two issues on which it has previously stated an opinion, namely: (1) Whether late arriving passengers or cargo may be considered an unforeseen circumstance or circumstance beyond the certificate holder’s or crewmember’s control under section 135.263(d); and (2) whether the rest period under section 135.267(d) must be timely received.” The FAA will also consider whether to recede from statements or suggestions in prior interpretations that late arriving passengers or cargo are an unforeseen circumstance.
The Request summarizes five scenarios and questions associated with each scenario based upon actual requests for interpretations received from on-demand charter operators. The FAA asks that in submitting comments to the scenarios/questions, that commenters address the following points: (1) What are your views on how the FAA should answer the requesters’ questions stated above? (2) What are your views on how the FAA intends to address the issues about late arriving passengers or cargo being an unforeseen circumstance under section 135.263(d) and the timely receipt of section 135.267(d) rest? (3) What industry operational practices support your views (also include documentation of such practices) (4) What is the safety policy that supports your views or practices? (5) What regulatory history supports your position? (6) In your opinion, are there any prior FAA interpretations that are controlling or that are at least instructive on the matter?
Comments to the Request must be received by the FAA on or before July 10, 2006. Comments may be sent to the docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001 or you may also electronically submit comments through the Internet to http://dms.dot.gov. You should submit two copies of your comments and you will need to identify the docket number FAA-2005-23438. If you would like further information you can contact Constance Subadan, Regulations Division, AGC-200, Office of the Chief Counsel, 800 Independence Avenue, SW., Washington, DC 20591; telephone 202-267-3073.
This will be a great opportunity for the FAA to hopefully reconcile prior statements/interpretations and to provide some meaningful guidance for analyzing flight time/rest period issues. The timing is also interesting given that the long awaited Part 135 rewrite is supposed to be released for comment this year. It will be interesting to see whether this Request results in a standalone policy statement from the FAA or whether the interpretation will simply be included in the upcoming revisions to Part 135. The latter would seem to make the most sense from a consistency standpoint. However, if a standalone policy statement is issued, I hope it is consistent with the Part 135 rewrite. Otherwise, the FAA may not accomplish its goal of clarifying these regulations. Stay tuned.
