Safety Recommendation A-95-015

-From Michael P. Huerta, Administrator: General Comment. In recommendations A-95-15, A-08-19 and -20, and A-10-16, part 135 operators were included in the 1995 Notice of Proposed Rulemaking (NPRM), Flightcrew Member Duty Period Limitations, Flight Time Limitations and Rest Requirements. This NPRM was withdrawn because of the many significant issues raised during the comment period. On January 4, 2012, the FAA issued The Flightcrew Member Duty and Rest Requirements Final Rule. The rule amends the FAA's existing flight, duty, and rest regulations applicable to certificate holders and their flightcrew members operating under part 121 domestic, flag, and supplemental rules.

While the preamble to the 2012 final rule mentions that part 135 operators should anticipate a rule similar to the rule tor part 121 operators, the FAA has no immediate plans to initiate this rulemaking.

The FAA has addressed the general issue of fatigue and part 135 operators in letters of interpretation. One example is the September 27, 2010, letter to Mr. Tom Rogers (enclosed), from the Assistant Chief Counsel for Regulations. In this letter the FAA stated that, per § 91.13(a), "[n]o person may operate an aircraft in a careless or reckless manner, so as to endanger the life or property of another. Both the flightcrew member and certificate holder would be in a violation of the regulations if a crewmember flies when his lack of rest would endanger others." The regulatory provisions of§ 91.13(a) apply to part 135 operations.

The FAA finds that the existing letter of interpretation provides clear guidance for part 13 5 operators.

In 2003, when the final rules goveming the operation of fractional aircraft ownership programs (part 91 subpart K) were drafted, the FAA considered the existing issues and research surrounding flight, duty, and rest time requirements. Additionally, comments were solicited from on-demand charter operators, fractional ownership program managers, aircraft manufacturers, corporate flight departments, traditional aircraft management companies, aircraft financing and insurance companies, as well as industry trade associations. These comments were received and incorporated into the final rules for part 91 subpart K.

With the rule, the FAA established a regulatory safety standard within part 91 subpart K to meet a high level of safety. Section 91.1 057(h) states that "a flightcrew member may decline a flight assignment if, in the flightcrew member's determination, to do so would not be consistent with the standard of safe operation required under this subpart, this part, and applicable provisions of this title." Additionally, program managers and their flightcrew members are subject to the regulatory provisions of§ 91.13(a).

Both the program manager and flightcrew member would violate regulations if it is determined that a crewmember operated an aircraft when the crewmembers' lack of rest endangered others. Individual program managers are responsible for developing policies that allow flightcrew members to decline assignments or remove themselves from duty if they were impaired by a lack of sleep and include the administrative implications of fatigue calls. FAA principal operations inspectors work closely with program managers to ensure program operating manuals support regulatory compliance.

The FAA exercises oversight responsibility to ensure fractional ownership programs comply with the regulations and maintain a high level of safety. The FAA finds that § 91.13( a) and 91.105 7 provide sufficient regulatory structure to meet the intent of recommendations A-95-125, A-08-19 and -20, and A-10-16, without requiring additional rulemaking for 91 subpart K operators.

A REVIEW OF THE REVISED AC, NOW AC 91-69A, SHOWS THAT ALL OF THE INFORMATION REQUESTED BY THE SAFETY BOARD HAS BEEN INCLUDED. ON THE BASIS OF THIS REVIEW, A-95-15 IS CLASSIFIED "CLOSED--ACCEPTABLE ACTION."

Letter Mail Controlled 02/22/2000 3:52:24 PM MC# 2000290 THE FAA REVISED ADVISORY CIRCULAR (AC) 91-29A, SEAPLANE SAFETY FOR FAR PART 91 OPERATORS, TO REMOVE THE NOTE THAT STATES A SEAPLANE IS NOT A VESSEL, SO THAT THE INFORMATION CONTAINED IN THE AC IS NOW CONSISTENT WITH THE INFORMATION IN THE AERONAUTICAL INFORMATION MANUAL. THIS RECOMMENDATION IS CURRENTLY CLASSIFIED AS "OPEN--ACCEPTABLE" PENDING A COPY OF THE REVISED AC. I HAVE ENCLOSED A COPY OF THE AC FOR THE BOARD'S INFORMATION. I CONSIDER THE FAA'S ACTION TO BE COMPLETED ON THIS SAFETY RECOMMENDATION.

PENDING REVIEW OF THE REVISED AC, WHICH THE FAA REPORTS WILL BE ISSUED IN NOVEMBER 1999, A-95-15 REMAINS CLASSIFIED "OPEN--ACCEPTABLE RESPONSE."

Letter Mail Controlled 7/12/99 3:53:20 PM MC# 990737 THE FAA HAS REVIEWED ITS POSITION AND CONTINUES TO BELIEVE THAT THE INTENT OF THIS RECOMMENDATION IS ADDRESSED IN ADVISORY CIRCULAR (AC) 91-29, SEAPLANE SAFETY FOR FAR PART 91 OPERATORS. THE AC PROVIDES ADEQUATE INFORMATION CONCERNING THE OPERATIONAL HAZARDS AND RESPONSIBILITIES OF SEAPLANE OPERATORS WHEN NAVIGATING ON THE WATER. THE AERONAUTICAL INFORMATION MANUAL (AIM) ALSO STATES THAT A SEAPLANE IS CONSIDERED A VESSEL WHEN ON THE WATER FOR THE PURPOSE OF COLLISION AVOIDANCE RULES, AND THE FLIGHT TRAINING HANDBOOK, CHAPTER 15, SEAPLANE OPERATIONS, PROVIDES CLEAR GUIDANCE AND DEFINITION ON THIS ISSUE.

ADDITIONALLY, THE FAA7-S--P--I-LOT PROFICIENCY AWARD PROGRAM HAS A UNIQUE SEGMENT FOR SEAPLANE PILOTS ENTITLED "SEAWINGS." THIS PROGRAM WAS DESIGNED IN COOPERATION WITH THE SEAPLANE PILOTS ASSOCIATION TO INCREASE SEAPLANE SAFETY THROUGH INCREASED SEAPLANE PILOT PROFICIENCY TRAINING. THE BOARD EXPRESSED CONCERN THAT THERE MAY BE INCONSISTENCIES IN THE AC AND THE AIM REGARDING THE CLASSIFICATION OF A SEAPLANE AS A VESSEL WHEN IT IS ON WATER. THE FAA AGREED TO REVISE THE AC TO CLARIFY THAT A SEAPLANE IS A VESSEL WHEN IT IS ON THE WATER.

THE FAA TOLD THE BOARD THAT IT WOULD REVISE AC 91-69 TO REMOVE THE NOTE THAT STATES A SEAPLANE IS NOT A VESSEL SO THAT THE INFORMATION CONTAINED IN THE AC IS CONSISTENT WITH THE INFORMATION IN THE AIM. THE FAA HAD ANTICIPATED ISSUING THE REVISION BY JANUARY 1998. HOWEVER, AS A RESULT OF OTHER HIGHER PRIORITIES THIS REVISION HAS BEEN DELAYED. IT IS NOW ANTICIPATED THAT THE REVISED AC WILL BE ISSUED BY NOVEMBER 1999. I WILL PROVIDE THE BOARD WITH A COPY OF THE REVISED AC AS SOON AS IT IS ISSUED.

THE BOARD DISAGREES WITH THIS ASSESSMENT & CONTINUES TO BELIEVE THAT THERE ARE INCONSISTENCIES IN THE AC & THE [AERONAUTICAL] INFO MANUAL THAT MAY CONFUSE PILOTS. FOR EXAMPLE, THE USCG CLASSIFES A SEAPLANE AS A VESSEL WHEN IT IS ON WATER; HOWEVER, THE AC SPECIFICALLY STATES THAT A SEAPLANE IS NOT A VESSEL WHEN IT IS ON WATER. WE BELIEVE THAT THIS DISPARITY SHOULD BE RESOLVED & PILOTS SHOULD BE REMINDED THAT THEY MUST FOLLOW RULES DESIGNED FOR VESSELS ON THE WATER. THEREFORE, THE BOARD ASKS THE FAA TO ONCE AGAIN REEVALUATE ITS POSITION. PENDING FURTHER RESPONSE, THE BOARD CLASSIFIES A-95-15 "OPEN--UNACCEPTABLE RESPONSE."

THE FAA REVIEWED THE AC 91-69 & DETERMINED THAT THERE IS ADEQUATE & RESPONSIBLIITEIS OF SEAPLANE OPERATORS WHEN NAVIGATING ON THE WATER. THE AC, AIM & FLIGHT TRAINING HANDBOOK PROVIDE CLEAR GUIDANCE & DEFINITION THIS ISSUE & I PLAN NO FURTHER ACTION.

IN RECOMMENDATION A-95-14, THE BOARD REQUESTED THAT THE FAA AMEND 14 CFR PART 91 TO CLARIFY THAT THE USCG CLASSIFIES A SEAPLANE OPERATING ON WATER AS A VESSEL. IN RECOMMENDATION A-95-15, THE BOARD REQUESTED THAT THE FAA REVISE ADVISORY CIRCULAR (AC) 91-69, SEAPLANE SAFETY FOR FAR PART 91 OPERATORS, TO PROVIDE COMPREHENSIVE INFO CONCERNING OPERATIONAL HAZARDS & THE RESPONSIBILITIES OF SEAPLANE OPERATORS WHEN NAVIGATING ON THE WATER, & TO INCLUDE IN AC 91-69 ALL APPLICABLE FAA & USCG REQUIREMENTS.

IN RECOMMENDATION A-95-16, THE BOARD REQUESTED THAT THE FAA DEVELOP & DISTRIBUTE, IN CONJUNCTION WITH THE SEAPLANE PILOTS ASSOCIATION & THE NATIONAL ASSOCIATION OF STATE BOATING LAW ADMINISTRATORS, MATERIALS TO EDUCATE SEAPLANE OPERATORS ABOUT REVISED FEDERAL AVIATION REGULATIONS, ADVISORY CIRCULARS, & VARIOUS STATE REQUIREMENTS REGARDING OPERATING AIRPLANES ON WATER. GIVEN THESE TIMELY & POSITIVE RESPONSES TO RECOMMENDATIONS A-95-15 & -16, THE BOARD AGREES THAT REGULATORY CHANGES TO PART 91 ARE NO LONGER REQUIRED TO CLARIFY THE STATUS OF SEAPLANES AS VESSELS WHEN THEY OPERATE ON THE WATER. CONSEQUENTLY, A-94-14 IS CLASSIFED "CLOSED--RECONSIDERED."

A-95-15 & -16 ARE CLASSIFIED "OPEN--ACCEPTABLE RESPONSE," PENDING RECEIPT BY THE BOARD OF REVISED AC 91-69 & PERTINENT EDUCATIONAL MATERIALS.

THE FAA AGREES...AND WILL REVISE AC 91-69 TO PROVIDE INFO CONCERNING THE OPERATIONAL HAZARDS & RESPONSIBILITIES OF SEAPLANE OPERATORS WHEN NAVIGATING ON THE WATER. THE FAA WILL ALSO CLARIFY IN THE AC THAT THE USCG CLASSIFIES A SEAPLANE AS A "VESSEL" WHEN ON THE WATER.