This post is the second in a series about common errors or concerns I see while conducting safety and operational audits. The first post, “Internal Evaluation Programs: Headache or Helpful Tool”, can be found here.
Most 135 operators have flying managers; that is, the Director of Operations, Chief Pilot, and other pilots who are assigned to office duties also fly the line. In some larger operations, the DO and Chief Pilot might only fly to maintain currency but in most operations, it’s necessary for the DO and Chief Pilot to fly in order to maintain a profitable business model. (I’ll wait for you to stop laughing at “profitable business model”.)
As a consultant and auditor, I get that and I try to be realistic in my expectations. It’s often unrealistic to expect managers to be in the office from 9 to 5 Monday through Friday with no other responsibilities. How does your company handle office time for flying managers? Some third party audit standards specifically address office time as duty time while others are more implicit. When conducting an audit and asking the operator how office time is tracked, most 135 operators understand the regulatory requirement to log office time as duty time but there seems to be a disconnect between understanding the requirement and abiding by the requirement.
I often ask to see the duty logs for any managers who fly the line. It’s not entirely uncommon to see only flight-related duty time on those logs. When asked, the answer is almost always, “Well we just assume the DO works from 8-5, Monday through Friday.” Keep in mind it’s probably 6 PM on a Tuesday when I ask this question on an audit and the DO is standing in the office with me. Unless the managers work the exact same hours EVERY SINGLE week of the year – no holidays, no vacations, no sick days – this is an incomplete solution to logging duty time and you’re asking for trouble.
Some operators pre-fill the flying managers’ duty times at the beginning of each month, but this causes the same issues as just assuming the managers work those times without logging anything in the duty log.
These two issues seem like mere paperwork exercises but let me show you why tracking office time properly is important. (Incidentally, I’m not talking about passing an audit here. I’m talking about avoiding enforcement action from the FAA should you ever have an opportunity to “demonstrate” your compliance with flight and duty requirements.)
Your Chief Pilot arrives at the office at 8 AM to put in a normal office day. You get a call for a trip that night at 8 PM. The flight will take 3 hours. Can your Chief Pilot do this trip?
(cue game show music)
No. This would make a 15 hour duty day. No finagling of this scenario will prove 10 hours of rest prior to the flight. If you’re a member of the “Say yes and find a way later” club (I dislike this club – it often leads people right through the grey areas of the regulations into noncompliance, but I digress), you might be thinking, “See Lindsey? And that’s why I don’t log my flying managers’ office time. Because if I just say the pilot arrived to the office at 9 AM, I’m totally good. This flight is a go and I make money.” And you’d likely be operating illegally, which could come back to bite both you AND the Chief Pilot. (Remember, the flight and duty time regulations read, “No certificate holder may assign any flight crewmember, and no flight crewmember may accept an assignment”. It’s a joint responsibility – and liability.)
Okay, so maybe you’ve got this part down. Your Chief Pilot, DO, and other pilots with office responsibilities diligently log their office time as duty time on a daily basis. In fact, you have a rule that any pilot completing more than 6 hours of office time in a day will not be assigned a flight in the same day. That’s fantastic. Until your overnight scheduler/flight coordinator gets a call at 2 AM and needs some guidance or an operational control decision that’s outside their authority, so they pick up the phone and call the Chief Pilot – who has a flight at 9 AM the next day. Guess what? You might have violated his mandatory rest period.
One of the fundamental concepts of “rest” is that the individual must be free from duty or responsibility to the air carrier. If the Chief pilot must answer a call at 2 AM to address an operational control issue, is he truly “free” from duty or responsibility to you?
Sometimes operators try various creative responses to this question. For example, the FAA talks in various legal interpretations about the “one call exception”, “duty to be available” status, and “duty to report” status, but I don’t even think those arguments apply here. The “one call exception” is typically thought of as a way of bringing a pilot out of a rest period or advising the pilot of a change to an imminent flight assignment. I think it’s possible the FAA could look at this scenario, where the Chief Pilot or DO could receive a call at literally any moment, as a “duty to report” situation. In Aviators for Safe and Fairer Regulation, Inc. v. Federal Aviation Administration, the FAA refers to “duty to report” as “a continuing burden … even when no call occurs.” Although the FAA is talking in this case about assigning a pilot to a flight, certainly the possibility of a call from your dispatch office at any time of the day or night is a similar “continuing burden”. And it is most definitely a duty or responsibility to the air carrier. For these reasons, the FAA could make a case that the Chief Pilot did not have adequate rest prior to the 9 AM flight.
Some operators resolve this issue with a “manager on duty”. The manager on duty handles all overnight and weekend calls for a fixed period of time – say one week and this responsibility rotates through all designated managers with operational control authority. During the manager on duty’s assigned week, that individual is not available to take flights. Some operators limit this to 135 flights, allowing the manager on duty to still take part 91 flights. I say fooey. Your body doesn’t know it shouldn’t be tired after you spent all night trying to resolve a maintenance issue or weather deviation just because it’s a 91 flight. Be smart.
I’m often told, “Well we don’t push them too hard. It was a quick 5 minute call and he said he fell right back to sleep”. Now let’s say the Chief Pilot goes along on the flight at 9 AM as scheduled. The flight is uneventful… until a tire blows on landing and the airplane takes a little “excursion” in the mud off the end of the runway. Guess what the NTSB investigator asks as the crane is lifting the plane back to solid ground? “Hey Chief Pilot, tell me what you were doing for the 24 hours prior to the flight.” And your Chief Pilot – because you never, ever want to lie to a federal official – EVER – ask Martha Stewart – says, “I had breakfast, showered, before that took a call about such-and-such flight….” Do you see where I’m going?
Incidentally, the same concepts apply to the quarterly and annual rest requirements. If your Chief Pilot, DO, and other flying managers are tethered to a cell phone even on required days off, it could be argued those were not truly “rest” days, because the individual had a duty or responsibility to the certificate holder.
When you’re dealing with the FAA, you aren’t innocent until proven guilty. If the FAA is conducting an investigation in which your certificate is the subject, the FAA already assumes you’re doing something wrong and it’s up to you to prove you are abiding by the rules. “Assuming” your flying managers work Monday through Friday, 8 to 5, probably won’t cut it. Interrupting a flying manager’s mandatory rest period for a middle of the night operational control call won’t be looked kindly upon either.
The AMI Jet Charter revocation order of 2007 indicates the FAA is alert to these issues. One of the findings of that investigation involved AMI’s alleged “failure to record training and other non-flight related duty” in crew logs. FAA legal interpretations are consistent in their declaration that a time period does not count as “rest” if the individual is not free from all work obligations.
There several options to make the “flying manager” model work. In our industry, it’s an almost unavoidable scenario to have individuals assigned to office duties but also flying aircraft. But don’t give the FAA fodder in an investigation. Log all office time as duty time and find a workable plan for managing after hours and weekend calls.
In the next blog post, I’ll discuss common training record errors. Stay tuned!