If there is one phrase I would ban from the Part 135 lexicon, it would be “My inspector said it was okay.” I have (hypothetically) seen Part 135 operators conducting all sorts of activities ranging from “in the grey area” to “clearly non-compliant” and if I had a quarter for every time an operator says, “My inspector said it was okay”, I’d be rich.
First, a quick caveat: This post is not meant to be a slam against the FAA or the individuals who represent the agency. There are some really intelligent, well-meaning people working at the FAA. This post is meant to serve as a wake-up call to operators about the ramifications an operator could face because of misunderstandings and inconsistencies within the agency and the ignorance (no offense – requirements change so frequently it can be hard to keep up) of the operator. Unfortunately the agency seems to be allowed misunderstandings and inconsistencies while the operator is not permitted to be ignorant.
Second caveat: There are big legal words and concepts ahead; however, I am still not an attorney.
Here’s how the conversation goes with the operator who says, “My inspector said it was okay.”
“Just because your inspector says you can do it [whatever ‘it’ is – log duty time a certain way, skip certain training requirements, use creative solutions for augmented crews, whatever] doesn’t mean it’s okay. You can even have your inspector’s signature approving or accepting an activity or an entire manual and if a different department, FSDO, or even individual within the FAA thinks your activities aren’t compliant with regulations, you could find yourself in a bit of a pickle.”
Usually at this point in the discussion the operator is looking at me like I’m Chicken Little. “The sky is falling! The sky is falling!”
Here are a couple of precedents that should give you a clear understanding of how the FAA feels about inspector “misunderstandings” or errors by any other name.
One operator was recently the subject of FAA enforcement action. (The operator’s wounds are probably still fresh so I’m not listing the name here. Enforcement actions are public information and Google is your friend if you’re that interested. Some of these things could happen to any one of us. And yes, if you are the subject of this type of action and I blog about it shortly after your enforcement, I’ll withhold your name too. You’re welcome.) An FAA certificate holder who is the subject of an order of suspension, revocation, or a civil penalty may appeal the FAA’s decision to an administrative law judge (ALJ) of the National Transportation Safety Board (NTSB). This operator used this mechanism to appeal the FAA’s motion for civil penalty. The operator’s main defense was their POI was aware of the activity in question and even approved it. The ALJ took a dim view of the operator’s argument that their POI had approved their activities. The ALJ based his decision on a legal concept known as “estoppel”. “Estoppel” is defined as: “A bar preventing one from making an allegation or a denial that contradicts what one has previously stated as the truth.” For purposes of this discussion, estoppel would prevent the FAA from alleging a certificate holder violated regulations while conducting activities the certificate holder believed were acceptable based on statements made by an FAA representative. Estoppel can be thought of as a “good faith” concept – an operator can reasonably rely on an inspector’s word. Unfortunately it’s not that simple.
Essentially, existing precedents hold the only way an inspector’s approval of a certificate holder’s activities could alleviate the certificate holder of legal liability to comply with regulations is if the inspector deliberately lied. The ALJ upheld these precedents, dismissing the operator’s defense that the operator shouldn’t face enforcement because the POI had approved the activities in question. The NTSB has also consistently held this position on estoppel.
Darby Aviation was the subject of FAA enforcement action following the Challenger accident at Teterboro Airport in 2005. In this case, Darby Aviation was issued an emergency order of suspension of their air carrier certificate. The FAA claimed, “Darby Aviation has failed to produce an acceptable Operations Manual or an approvable training program despite repeated FAA efforts to inform the company of the required changes in those documents. As a result, the company has no accepted Operations Manual or approved training program.”
Darby’s main defense was its positive relationship with its POI and FSDO staff, as well as written acceptance or approval of company manuals, policies, and procedures. Darby published a written statement in rebuttal:
“This suspension action revolves around a manual that the FAA has claimed is insufficient, however it is the same manual that has been approved since 1992 and incorporates all changes required and approved by six (6) prior FAA inspectors. In fact, the present Front Line Manager of the Alabama, North Florida Flight Standards District Office (the ‘Birmingham FSDO’) and Darby Aviation’s present FAA Principal Operations Inspector (‘POI’) each approved this manual before wrongfully revoking the same document.”
Darby won an appeal to an ALJ but the FAA immediately appealed to the full Board of the NTSB. The Board upheld the FAA’s emergency order of suspension. Of particular interest to this discussion is the following:
“The Birmingham FSDO’s knowledge and approval of the charter management agreement does not preclude the Administrator from taking a different position. In a large organization such as the FAA there will inevitably be differing views. We disagree with Darby’s assertion that the Birmingham FSDO’s view should prevail in this case. The Administrator can, and indeed should, overrule a FSDO’s position if she believes it is incorrect or may be inconsistent with safety.”
Unfortunately for Darby, the Department of Transportation also issued violations against the air carrier, finding Darby in violation of a prohibition from engaging in unfair and deceptive practices. An excerpt from the DOT Consent Order makes that agency’s position very clear:
“In mitigation, Darby has assured the Enforcement Office that it has always enjoyed an excellent reputation for regulatory compliance, particularly in reference to the Birmingham FAA Flight Standards District Office (FSDO), which monitored Darby’s day-to-day activities. Darby asserts that it did not enter into its initial arrangement with Platinum with the intent of facilitating unlawful conduct on the part of Platinum and it states that the addition of the Platinum aircraft to its operations specifications was approved by its FSDO. Furthermore, Darby states that, based on contacts with its FSDO, it believed that it had taken the necessary and reasonable steps to ensure that Platinum would not be considered to be engaged in unauthorized operations.”
The DOT was not persuaded by this argument and found Darby had engaged in unfair and deceptive practices and an unfair method of competition. The company was ordered to cease and desist from further similar violations and to pay a compromise civil penalty of $60,000.
Unrelated to Darby Aviation’s many legal concerns, the NTSB found four contributing factors to the accident. Two of the four involved the FAA, including: “the failure of the Birmingham, Alabama, FAA Flight Standards District Office to provide adequate surveillance and oversight of operations conducted under Darby’s Part 135 certificate; and … the FAA’s tacit approval of arrangements such as that between Darby and PJM [Platinum Jet Management].”
The NTSB’s findings regarding the accident had no mitigation value for Darby Aviation in its interactions with the FAA or the DOT. In fact, two Board Members who reversed the ALJ’s decision and affirmed the FAA Administrator’s emergency order of suspension, then Acting Chairman Rosenker and Member Hersman, were still on the Board when these contributing factors were adopted as part of the accident final report. In other words, two of the same individuals who agreed the FAA had reason to issue an emergency order of suspension later found the FAA’s activities to be a factor to the Teterboro accident. However, the concept of “estoppel” and the government’s consistent view that safety cannot be compromised because of an inspector or office’s misunderstanding or inconsistency with Federal Aviation Requirements, FAA guidance, and so on, mean the FAA can be a contributing factor to an accident but not accountable for the operator’s regulatory noncompliance.
The “my inspector approved it” argument does not seem to hold water with the FAA, DOT, NTSB ALJs, or the NTSB. It’s a conundrum for operators and inspectors alike. An inspector’s judgment can be questioned by the agency at any time and operators have no real reason to be 100% confident in their inspectors’ decisions. So as a Part 135 operator, what do you do?
First, make sure someone in your company who understands Federal Aviation Regulations is responsible for keeping up with possible regulatory changes. The FAA posts new guidance documents and regulations on its website. Check at them at least weekly. Watch other sources for DOT changes, like hazmat requirements or limitations.
Second, get or stay involved with a trade association like NATA or NBAA. Then your dues are paying those folks to watch for regulatory changes that could affect your company. (Keep in mind, you might be subject to a relatively obscure or uncommon requirement that the majority of a trade association’s membership are not subject to, so don’t simply rely on the trade association. It’s YOUR business. Be proactive.)
Third, if you have an auditor, consultant, or other objective third party point out a possible inconsistency with requirements, LISTEN UP! Don’t dismiss the concern with a quick, “My inspector said I could” and move on. Ask the individual for references that back up his/her position and give the references serious consideration. There’s no doubt some regulatory issues exist in a grey area. Maybe the FAA hasn’t issued clear guidance or there hasn’t been an interpretation on the issue yet. But if there is inspector guidance, a policy notice, a regulation, a legal interpretation, heck, even a quote from FAA senior management that indicates the activity in question is fishy, don’t hang your hat on your inspector’s (or FSDO’s) opinion. Do your own research.
The bottom line: The FAA can and has violated air carriers for activities approved by FAA inspectors. Trust but verify.