To anybody relying in this statement please refer to the Assistant Secretary of Defense's letter regarding this policy dated March 2007 which superseded the 2002 Assistant Secretary of Defenses letter establishing the 12301(d) exemption.

The current letter in place does allow for the 12301(d) USERRA 5 year exemption, but the order is specifically required to have the statement in support of contingency operations (I don't have the exact verbiage with me) but to give it some perspective of the 2000+ AGR sets of orders out there very few have the contingency statement. Also, the vast majority of the return to active duty orders are 12301(d) type orders but do not have the contingency statement. Any title 10 order generally has the 12301(d) but many lack the contingency statement. There is a new letter that will be out shortly that further limits the 5 year exemption.

Delta is well aware of all of these issues, if you have question contact the CPSC and ask for the military Liaison. He is a great dude and will not lead you wrong. Good luck, make sure you know the law. The simple statement 12301(d) definitely is not exempted from the 5 years if the order was cut after March 2007 or extended past March 2007.

This is verbatim from the 31 Mar 2008 Letter:

USERRA and DODI 1205.12 provide authority for the Secretary of the Air Force to designate certain other periods of service as exempt from the five-year limit. This memorandum will address designated exemptions given under my authority, acting on the behalf for the Secretary of the Air Force.

I categorically approve the following exemption from the five-year limit:

Periods of service performed by an ARC member ordered to or retained on active duty under 10U.S.C. §12301(d) on or after September 14,2001, for the purpose of providing direct or indirect support of missions and operations associated with the National Emergency by Reason of Certain Terrorist Attacks, declared by Presidential Proclamation 7463, dated September 14,2001.

There is more for other types of orders, but not sure how this doesn't exempt orders under 12301(d) unless you had nothing to do with the war fighting effort. Everyone is either directly or indirectly supporting the mission and ops unless they are really well hidden. Is there something I'm missing?

I wonder how well the crew rested on that flight? :D

IMHO, we dump gas and return to the airport way too often. With a single engine failure on a four engine aircrat, I would not cross an ocean, but I certainly think pressing on to NYC or someplace like that is fine.

Yeah, Air China actually had an engine problem on one of it's 747's so they just took a whole bunch of seat belt extensions and secured the fan blades. Then they took off full of pax from the Orient to Franfurt. The Germans grounded the aircraft and made then replace two engines before returning home. The first stage fan blades were just shredded.

Remember the regs on an engine out on a 3 or 4 vs. a 2 engine aircraft?

On a 3 or 4 engine out per the regs you have the option of continuing to destination if in the captain's opinion it is at least as safe as returning.

Did you mean HDG? Hydraulic driven generator? Is 767 even ETOPs-worthy to get on the tracks with center hyd sys failure?

Question from someone who only flies very limited international (Canada and occasionally Mexico), what type of penalty could the FAA levy on the crew who is most likely flying on a JAA license? Kind of curious as to what the FAA's jurisdiction would be in this instance.

Ball Breaker, I'm leaning towards agreeing with DalDude on this... my unit gave out approximately 600 sets of manday orders a year, and in order for several exemptions to apply, the order had to state "in support of contingency operations" on the back. If it was left off your order, you had to get an ammendment for it. However, from about 2008 and on, this sort of "manday" was almost non-existent from AETC at least, they were very limited in number. There was a limit of how many mandays you could work in one year, 132 or something? Which could go up to 178ish if it was contingency ops. And then they increased it to 1000 MD in any 4 year period (I think).
In any case, orders that satisfied the title 10 "in support of contingency ops" specifically had to state it on the back, and this was an item that was checked and double-checked and argued up the chain and back down, result being these days/orders grew increasingly fewer through last year. Having orders of this sort gave a tax benefit as well as allowing more days / year, I believe.

Of course we all hope that no one is lawyering up to argue about every order over a > 5 year period, and that all our bros make it back to the property safely... but the fact remains, if you DO go over 5 years on mil leave, there are complex rules in place that didn't just show up for no reason, and it's possible to not be in compliance---it behooves you to check it out carefully, not assume, and be cautious with your continued employment risk if you're in this category.

IMHO, ICAO would probably step in and put pressure on JAA. JAA and Canadians will fine the company if the airplane indeed was not ETOPs-worthy on the tracks.