Narrative:

I was scheduled to fly a scheduled part 135 flight from ack to mvy, then to hya and on to bos. The WX at ack was reported as 1/4 mi visibility and fog. The WX on mvy was reported as 100 ft sky obscured 1/8 mi visibility in fog and calm wind. The WX in hya was also 1/4 mi visibility with fog, and bos was above CAT 1 landing minimums. With this WX I was unable to depart for mvy as a part 135 flight, however I would be able to depart for bos. I called my dispatch to inform them of the situation, and ask what they would like me to do. We discussed the situation and they decided that, since we did not have any passenger or cargo booked on the first leg of the trip, that we could fly to mvy as a part 91 flight, fly the approach and land if the flight visibility was adequate. If we were unable to safely land on mvy we were to continue on to bos and continue our shift from there. As I understand it, this is a perfectly legal operation, and one that the company teaches us and asks us to perform regularly when the WX is down. When we called for our taxi clearance, the ack tower informed us that mvy was reporting 1/8 mi visibility and fog, and asked our intentions (the visibility required for the approach is 1/2 mi). I informed them that we were going to try the approach at mvy and that if we could not get in there we intended to continue on to bos. I do not remember if I informed them that we had no passenger on board and were operating as a part 91 flight, however I am not aware of any requirement to do so. I then asked if we should expect any delays in the event that we diverted from mvy to bos just to make sure we were carrying sufficient fuel. Ack tower informed us that there were no delays to bos at that time. We had a fuel load of 3500 pounds (about 4 hours) and the trip from ack to mvy and on to bos would take less than 1 hour, so we decided to depart for mvy. The flight from ack to mvy is extremely short, so cape approach began giving us vectors for the ILS runway 24 at mvy immediately after takeoff (I was the PF). Cape approach informed us once again that mvy was reporting 1/8 mi visibility and fog and asked our intentions. Having listened to the ATIS at mvy, we were aware of the WX and told cape we would like to continue for the approach. We were vectored on to the approach, and somewhere around the final approach fix (5 DME) we entered VMC with a layer above and fog below. The flight visibility at that time was very good, I would say better than 5 mi, and remained that way until we entered the fog layer around 100 ft AGL. I believe the fog was less than 100 ft thick because I remember seeing tree tops stick out above the top of the fog. Around 700 ft MSL we could see the approach lights, and shortly after (around 500 ft MSL) we could see the runway itself. Once we entered the fog the visibility did drop, however, it was still sufficient to safely land (about 1/2 to 3/4 mi). We landed without incident and taxied to the terminal. Upon arriving at the terminal the ground people asked me if we would be ready to depart right away, and I informed them that we had to wait until the visibility was reported as 1/4 mi or better by the tower (the minimum for us to depart under part 135). When I entered the building I was informed that the tower was on the phone and would like to talk to me. When I took the call a voice on the other end asked me how I was able to land under part 135 with the visibility reported as 1/8 mi. I informed the controller that we had no passenger and no cargo, and were operating the flight under part 91. The controller informed me that she believed that because we were using our assigned flight number that we were technically a part 135 operation. I told her (the controller) that I was unaware of any such rule, thanked her for bringing it to my attention and told her I would look into it. The controller then asked me if we would be departing for hya right away. I informed her that, since hya was still reporting 1/4 mi visibility and fog and we needed 1/2 mi to land there, that the plan was to go direct to bos, however we would have to wait until the visibility at mvy rose to 1/4 mi before we could depart. I then informed the controller that our flight plan was filed to hya and asked if it would be possible for her to amend it or if we would have to file a new one. She told me that normally we would have to do it ourselves, however, since it was so quiet she would be able to do it for us. I thanked her for her assistance and asked if she would please contact us by phone when the visibility rose to 1/4 mi. She said she would and we ended our conversation there. About 30-40 mins later we got a call from the tower telling us that the visibility was now 1/4 mi and that if we could be ready to go within 15 mins, bos could accept us immediately. I told the controller that we would be ready and thanked her for the call. We boarded up the passenger, received our clearance and taxied out to runway 24 for departure. During the taxi the controller confirmed that the visibility was still 1/4 mi and cleared us for takeoff. I was the PF once again, and taxied onto runway 24 for departure. I remember thinking to myself that the visibility was actually closer to 1 mi than 1/4 mi because I could see the entire length of the 5500 ft runway. We completed the flight and landed in bos without incident. I was later informed by my chief pilot that the FAA was informed by someone that we were operating as a part 135 flight with the WX being reported as 1/8 mi and that they would be investigating. I then told him the sequence of events that I have stated above and he agreed that we did not do anything wrong. As I understand it, the FAA feels that since we departed ack for the purpose of picking up passenger in mvy, we were technically a 135 flight regardless of what call sign we used whether or not we carried any passenger. The company disagrees and stands behind us.

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Original NASA ASRS Text

Title: WX RPTS RECEIVED BY A COMMUTER FLC WERE BELOW THEIR OPERATING MINIMUMS SO THE FLC OPERATED AS PART 91 TO RELOCATE THE ACFT TO A STATION WHERE THEY COULD CONTINUE NORMAL OP. THE FLT NUMBER WAS STILL USED FOR THE PART 91 FERRY FLT, WHICH CAUSED THE FLC'S OPERATING PRACTICE TO BE QUESTIONED.

Narrative: I WAS SCHEDULED TO FLY A SCHEDULED PART 135 FLT FROM ACK TO MVY, THEN TO HYA AND ON TO BOS. THE WX AT ACK WAS RPTED AS 1/4 MI VISIBILITY AND FOG. THE WX ON MVY WAS RPTED AS 100 FT SKY OBSCURED 1/8 MI VISIBILITY IN FOG AND CALM WIND. THE WX IN HYA WAS ALSO 1/4 MI VISIBILITY WITH FOG, AND BOS WAS ABOVE CAT 1 LNDG MINIMUMS. WITH THIS WX I WAS UNABLE TO DEPART FOR MVY AS A PART 135 FLT, HOWEVER I WOULD BE ABLE TO DEPART FOR BOS. I CALLED MY DISPATCH TO INFORM THEM OF THE SIT, AND ASK WHAT THEY WOULD LIKE ME TO DO. WE DISCUSSED THE SIT AND THEY DECIDED THAT, SINCE WE DID NOT HAVE ANY PAX OR CARGO BOOKED ON THE FIRST LEG OF THE TRIP, THAT WE COULD FLY TO MVY AS A PART 91 FLT, FLY THE APCH AND LAND IF THE FLT VISIBILITY WAS ADEQUATE. IF WE WERE UNABLE TO SAFELY LAND ON MVY WE WERE TO CONTINUE ON TO BOS AND CONTINUE OUR SHIFT FROM THERE. AS I UNDERSTAND IT, THIS IS A PERFECTLY LEGAL OP, AND ONE THAT THE COMPANY TEACHES US AND ASKS US TO PERFORM REGULARLY WHEN THE WX IS DOWN. WHEN WE CALLED FOR OUR TAXI CLRNC, THE ACK TWR INFORMED US THAT MVY WAS RPTING 1/8 MI VISIBILITY AND FOG, AND ASKED OUR INTENTIONS (THE VISIBILITY REQUIRED FOR THE APCH IS 1/2 MI). I INFORMED THEM THAT WE WERE GOING TO TRY THE APCH AT MVY AND THAT IF WE COULD NOT GET IN THERE WE INTENDED TO CONTINUE ON TO BOS. I DO NOT REMEMBER IF I INFORMED THEM THAT WE HAD NO PAX ON BOARD AND WERE OPERATING AS A PART 91 FLT, HOWEVER I AM NOT AWARE OF ANY REQUIREMENT TO DO SO. I THEN ASKED IF WE SHOULD EXPECT ANY DELAYS IN THE EVENT THAT WE DIVERTED FROM MVY TO BOS JUST TO MAKE SURE WE WERE CARRYING SUFFICIENT FUEL. ACK TWR INFORMED US THAT THERE WERE NO DELAYS TO BOS AT THAT TIME. WE HAD A FUEL LOAD OF 3500 LBS (ABOUT 4 HRS) AND THE TRIP FROM ACK TO MVY AND ON TO BOS WOULD TAKE LESS THAN 1 HR, SO WE DECIDED TO DEPART FOR MVY. THE FLT FROM ACK TO MVY IS EXTREMELY SHORT, SO CAPE APCH BEGAN GIVING US VECTORS FOR THE ILS RWY 24 AT MVY IMMEDIATELY AFTER TKOF (I WAS THE PF). CAPE APCH INFORMED US ONCE AGAIN THAT MVY WAS RPTING 1/8 MI VISIBILITY AND FOG AND ASKED OUR INTENTIONS. HAVING LISTENED TO THE ATIS AT MVY, WE WERE AWARE OF THE WX AND TOLD CAPE WE WOULD LIKE TO CONTINUE FOR THE APCH. WE WERE VECTORED ON TO THE APCH, AND SOMEWHERE AROUND THE FINAL APCH FIX (5 DME) WE ENTERED VMC WITH A LAYER ABOVE AND FOG BELOW. THE FLT VISIBILITY AT THAT TIME WAS VERY GOOD, I WOULD SAY BETTER THAN 5 MI, AND REMAINED THAT WAY UNTIL WE ENTERED THE FOG LAYER AROUND 100 FT AGL. I BELIEVE THE FOG WAS LESS THAN 100 FT THICK BECAUSE I REMEMBER SEEING TREE TOPS STICK OUT ABOVE THE TOP OF THE FOG. AROUND 700 FT MSL WE COULD SEE THE APCH LIGHTS, AND SHORTLY AFTER (AROUND 500 FT MSL) WE COULD SEE THE RWY ITSELF. ONCE WE ENTERED THE FOG THE VISIBILITY DID DROP, HOWEVER, IT WAS STILL SUFFICIENT TO SAFELY LAND (ABOUT 1/2 TO 3/4 MI). WE LANDED WITHOUT INCIDENT AND TAXIED TO THE TERMINAL. UPON ARRIVING AT THE TERMINAL THE GND PEOPLE ASKED ME IF WE WOULD BE READY TO DEPART RIGHT AWAY, AND I INFORMED THEM THAT WE HAD TO WAIT UNTIL THE VISIBILITY WAS RPTED AS 1/4 MI OR BETTER BY THE TWR (THE MINIMUM FOR US TO DEPART UNDER PART 135). WHEN I ENTERED THE BUILDING I WAS INFORMED THAT THE TWR WAS ON THE PHONE AND WOULD LIKE TO TALK TO ME. WHEN I TOOK THE CALL A VOICE ON THE OTHER END ASKED ME HOW I WAS ABLE TO LAND UNDER PART 135 WITH THE VISIBILITY RPTED AS 1/8 MI. I INFORMED THE CTLR THAT WE HAD NO PAX AND NO CARGO, AND WERE OPERATING THE FLT UNDER PART 91. THE CTLR INFORMED ME THAT SHE BELIEVED THAT BECAUSE WE WERE USING OUR ASSIGNED FLT NUMBER THAT WE WERE TECHNICALLY A PART 135 OP. I TOLD HER (THE CTLR) THAT I WAS UNAWARE OF ANY SUCH RULE, THANKED HER FOR BRINGING IT TO MY ATTN AND TOLD HER I WOULD LOOK INTO IT. THE CTLR THEN ASKED ME IF WE WOULD BE DEPARTING FOR HYA RIGHT AWAY. I INFORMED HER THAT, SINCE HYA WAS STILL RPTING 1/4 MI VISIBILITY AND FOG AND WE NEEDED 1/2 MI TO LAND THERE, THAT THE PLAN WAS TO GO DIRECT TO BOS, HOWEVER WE WOULD HAVE TO WAIT UNTIL THE VISIBILITY AT MVY ROSE TO 1/4 MI BEFORE WE COULD DEPART. I THEN INFORMED THE CTLR THAT OUR FLT PLAN WAS FILED TO HYA AND ASKED IF IT WOULD BE POSSIBLE FOR HER TO AMEND IT OR IF WE WOULD HAVE TO FILE A NEW ONE. SHE TOLD ME THAT NORMALLY WE WOULD HAVE TO DO IT OURSELVES, HOWEVER, SINCE IT WAS SO QUIET SHE WOULD BE ABLE TO DO IT FOR US. I THANKED HER FOR HER ASSISTANCE AND ASKED IF SHE WOULD PLEASE CONTACT US BY PHONE WHEN THE VISIBILITY ROSE TO 1/4 MI. SHE SAID SHE WOULD AND WE ENDED OUR CONVERSATION THERE. ABOUT 30-40 MINS LATER WE GOT A CALL FROM THE TWR TELLING US THAT THE VISIBILITY WAS NOW 1/4 MI AND THAT IF WE COULD BE READY TO GO WITHIN 15 MINS, BOS COULD ACCEPT US IMMEDIATELY. I TOLD THE CTLR THAT WE WOULD BE READY AND THANKED HER FOR THE CALL. WE BOARDED UP THE PAX, RECEIVED OUR CLRNC AND TAXIED OUT TO RWY 24 FOR DEP. DURING THE TAXI THE CTLR CONFIRMED THAT THE VISIBILITY WAS STILL 1/4 MI AND CLRED US FOR TKOF. I WAS THE PF ONCE AGAIN, AND TAXIED ONTO RWY 24 FOR DEP. I REMEMBER THINKING TO MYSELF THAT THE VISIBILITY WAS ACTUALLY CLOSER TO 1 MI THAN 1/4 MI BECAUSE I COULD SEE THE ENTIRE LENGTH OF THE 5500 FT RWY. WE COMPLETED THE FLT AND LANDED IN BOS WITHOUT INCIDENT. I WAS LATER INFORMED BY MY CHIEF PLT THAT THE FAA WAS INFORMED BY SOMEONE THAT WE WERE OPERATING AS A PART 135 FLT WITH THE WX BEING RPTED AS 1/8 MI AND THAT THEY WOULD BE INVESTIGATING. I THEN TOLD HIM THE SEQUENCE OF EVENTS THAT I HAVE STATED ABOVE AND HE AGREED THAT WE DID NOT DO ANYTHING WRONG. AS I UNDERSTAND IT, THE FAA FEELS THAT SINCE WE DEPARTED ACK FOR THE PURPOSE OF PICKING UP PAX IN MVY, WE WERE TECHNICALLY A 135 FLT REGARDLESS OF WHAT CALL SIGN WE USED WHETHER OR NOT WE CARRIED ANY PAX. THE COMPANY DISAGREES AND STANDS BEHIND US.

Data retrieved from NASA's ASRS site as of July 2007 and automatically converted to unabbreviated mixed upper/lowercase text. This report is for informational purposes with no guarantee of accuracy. See NASA's ASRS site for official report.