PER CURIAM.
On July 18, 1973, the United States, plaintiff-appellant, commenced a civil action against Ozark Air Lines, Inc., defendant-appellee, alleging violations of the Federal Aviation Act and the Federal Aviation Regulations, and sought to collect some $15,000 in penalties. On cross motions for summary judgment based upon a stipulation of facts, the District Court, Harper, J., granted appellee's motion for summary judgment.
The statute and regulations involved are: Section 601(a) (5) of the Federal Aviation Act, 49 U.S.C. § 1421 (a)(5):
(a) The Administrator is empowered and it shall be his duty to promote safety of flight of civil aircraft in air commerce by prescribing and revising from time to time:
We affirm.
The single issue on appeal is whether the District Court erred in adopting the construction of Section 121.471(d) (see fn. 1) of the Federal Aviation Regulations proffered by appellee, that "backup reserve status" is not included within the definition of "duty" as it is used in that regulation.
"Back-up reserve status" is a work status established by Ozark Air Lines for its flight crewmembers. A crewmember on back-up reserve status is free from immediate duty but is required to be available to be contracted within a two-hour period and to report for duty within two hours after being contacted.
Appellant contends that by scheduling flight crewmembers for back-up reserve during the 24-hour rest periods prescribed by Section 121.471(d), Ozark has failed to provide relief to those crewmembers "from all further duty." This contention by appellant is based on an interpretation of "duty" which includes any work status by crewmembers which could conceivably result in flight duty, as well as actual duty aloft.
Section 121.471(d) has remained essentially unchanged since it was first promulgated in 1926. Agency interpretations of the regulations since that time have variously held that back-up reserve status did or did not count as "duty" within the meaning of the regulation.
In a soundly reasoned and carefully documented opinion published as United States v. Ozark Airlines, Inc., 374 F. Supp. 234 (E.D.Mo. 1974), Judge Harper concluded that "duty" in Section 121.471(d) does not include a crewmember on back-up reserve status. Instead, a crewmember may properly be available for duty during a period of rest so long as he is not actually called to duty.
We are in accord with Judge Harper's opinion and on the basis thereof we affirm.