Lucy
I have run your question by our Air Law expert. Here is his answer. Enjoy!
ANSWERS TO QUESTIONS BY LUCY IN EMAIL OF 25 MAY 2020
General
1. Definitions matter and when interpreting the FRMS (the Instrument), it is the definitions at paragraph 6 that matter. Failure to pay attention to these is a major reason for failure in CPL Law exams. Understand also that the Instrument assumes aircraft operations occur around the clock. You will find an example of that assumption if you look the Instrument’s definition for “day”. It is different from that which we use in everyday speech.
Definitions and relevant principles
2. Understand the Instrument’s meanings for duty period, flight duty period (FDP), off duty period, flight time, flight crew member (FCM), cumulative flight time and recreational private operations (FRMS para. 6).
3. A FDP is time limited but a duty period is limited only by the requirements related to off-duty periods.
4. It is a general condition of a flight crew licence that any FCM engaged in a private operation must comply with the general personal health conditions of paragraph 16. Paragraph 16 requires that, no matter the operation, commercial or private, a flight crew member has a general and personal responsibility to be mentally and physically prepared to conduct any flight operation (FRMS para. 9.2 and para 16).
5. Except as set out in paragraphs 12.3 and 12.4, the Instrument does not apply to an AOC holder conducting private operations. Except as set out in paragraphs 12.3, 12.4 and 16, the Instrument does not apply to a FCM conducting private operations. This is important to understand (FRMS para. 12 and para 16).
6. Any private operation conducted before any commercial operation must be considered part of the FCM’s FDP (FRMS para. 12.4(a)).
7. Any private operation conducted between any commercial operation must be considered part of the FCM’s FDP (FRMS para. 12.4(b)).
8. Any private operation conducted after a last commercial operation associated with a FDP is considered part of the FCM’s duty period, and not part of the earlier FDP and not part of any subsequent off-duty period (FRMS para. 12.4 (c) and (d)).
Answers to Questions
(I have taken the liberty of rewording Lucy’s questions so that they standardise upon the Instrument’s vocabulary)
A. If a private operation is conducted outside of any commercial operation, no commercial operations on that day, then neither the FDP nor the duty period count for FDP and duty period times?
Correct. Paragraph 12 states that, except when paragraph 12.3 applies, the Instrument does not apply to a private operation. The question provides no situation in which paragraph 12.3 applies, so the Instrument does not apply to the question. As the definitions for flight time, FCM, FDP and duty period are definitions peculiar to the Instrument and the Instrument does not apply, then there is no applicable flight time, FCM, FDP, duty period pursuant to the Instrument. It follows, then, that no flight time can be logged pursuant to the Instrument. Rather any flight time in a private operation would be logged pursuant to the definition of flight time found at regulation 61.080 of the Civil Aviation Safety Regulations 1988.
B. If the private operation is undertaken prior to, during or after the FDP, do both the hours within the FDP and the duty period count, or just those within the duty period?
It depends upon the situation, as set out in paragraph 12.4. If the private operation is conducted before a commercial operation, then the private operation is considered part of the FDP in which the commercial operation is undertaken. Duty period is irrelevant.
If the private operation is conducted between commercial operations, then the private operation is considered part of the FDP in which the commercial operation is undertaken. Duty period is irrelevant.
But, if the private operation is conducted after all commercial operations are undertaken, then the subsequent private operation is not part of the FDP, but is a duty period, particularly for determining the length of a subsequent off-duty period.
Example: if you drive to your residence at the end of your FDP, then the drive is part of the off-duty period that commences at the end of your FDP. If you fly to your residence in a private operation after your FDP ends, then the flight time associated with the private operation is a duty period for the purpose of the Instrument, and any off-duty period commences only when your aircraft comes to a complete stop at your home airport. If you subsequently drive to your residence from your home airport, then the drive is part of the off-duty period that commences following the end of your duty period.
C. Can a commercial pilot conduct private flying to their hearts content on an off-duty day that is entirely exclusive to the working day? And if you conducted any private flying on a work day, would this be included as duty time?
It depends on the situation. Subject to the personal fatigue limitation stated in paragraph 16, a commercial pilot can conduct private operations to their hearts content so long as the conditions stated in paragraphs 12.3 and 12.4 of the Instrument do not apply. This is because the Instrument itself does not apply to the conduct of private operations. But if paragraphs 12.3 and 12.4 do apply, then the Instrument applies, and the limitations stated in both paragraphs must be considered in accordance with the prevailing circumstances.
Interestingly, any amount of flight time associated with private operations appears subject only to the general fatigue requirements of paragraph 16, and, by definition, the flight time associated with private operations undertaken by an FCM is not counted towards the cumulative limits on flight times found in the Instrument’s appendices. You can see why when you consider the Instrument’s definitions of ‘’cumulative flight time” and “recreational private operations”. Cumulative flight time is defined in the Instrument as: “for an FCM the progressive total of flight time accrued by the FCM when acting as a crew member on board any aircraft, but excluding the flight time accrued during recreational private operations”. And recreational private operations are defined as: “flying conducted by an FCM in a personal capacity, and at and for the FCM’s leisure”.
It follows, then, that a FCM is in compliance with Appendix 1 paragraph 8, for example, if they happen to fly 150 hours in a 28 day period, provided that 50 of those hours are in private operations. That appears the legal situation, but practically, would you like to be a passenger in this person’s aircraft at hour 150? I checked around and found that this situation is often dealt with by an AOC holder limiting in their organisation’s approved FRMS the amount of private operations that an FCM may undertake.
