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SAS Revisions: A Cautionary Tale

At the recent NBAA Business Aviation Convention & Exhibition, John Duncan, head of the FAA’s Flight Standards division, emphatically told attendees of an education session that Data Collection Tools (DCTs) – the checklists that make up the oversight backbone of the FAA’s Safety Assurance System (SAS) – are inspector assignments and not “operator homework”.

I believe Mr. Duncan means for that to be the case – inspectors completing the DCTs for their assigned operators – but my experience in the field is more of the operator homework variety. But it can be beneficial for operators to complete their own DCTs, rather than having the inspector do it. You get to tell the inspector the answer, rather than having the inspector poke around in your stuff to find the answer. Plus, going through the checklists yourself gives you an opportunity to improve or revise your manuals as necessary to meet the requirements of the DCTs.

(Quick note: DCTs are not regulatory in nature. Technically, you don’t HAVE to do them at all or change any manuals to meet the “requirements”, but the FAA will tell you each item in the DCTs is based on a regulatory requirement, therefore you must “comply”. I can debate a good number of the DCTs applied to Part 135 operators as being outside of Part 135 regulations but in most cases, it’s easier to go along to get along. Yes, that hurts my soul a bit.)

In working with the DCTs over the past couple of years, I’ve noted an important and slightly disturbing trend – the DCTs change. They change often, in fact. This means the FAA has a way of quickly and easily changing the requirements for operators without any sort of rulemaking process.

Rulemaking – real rulemaking, not rulemaking by publishing a new Advisory Circular or revising a DCT – must follow the Administrative Procedures Act (APA) and, in cases of “significant regulatory action”, Executive Order 12866 (EO 12866). The APA and EO 12866 require the federal agency considering a new rule or change to an existing rule to do things like:

  • Conduct an economic analysis of the rule,
  • Ensure it doesn’t conflict with other agencies’ regulations,
  • Submit a draft for public comment, and
  • Actually CONSIDER public comment and publish a disposition of those comments (i.e., address each comment or recommendation and state why it was or was not ultimately incorporated in the final rule).

Obviously, the formal process takes a fair bit of time – usually years. A DCT, however, can be changed very quickly. What this means for you, Part 135 operators, is a manual written or revised today to meet the requirements of the DCTs may be out of date tomorrow. And there’s no quick way – at least that I’ve discovered – to be advised of DCT changes. They’re posted on the Flight Standards Information Management System (www.FAA.fsims.gov) but you have to search FSIMS for your peer group or look for your peer group in the list of recently revised documents. It’s not a task you want to add to your daily list of things to do.

That said, do you want to chase ever-changing, not-required-but-kind-of-required standards anyway? Probably not.

So this serves as a cautionary tale – don’t assume that once you meet the DCTs, you’ll continue to be “in compliance” with them forever. Don’t be surprised if your inspector gives you a DCT in 6 months that you’ve already completed but this one looks different and has new requirements.

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Have You Been SAS’d? How to Deal with the FAA’s Safety Assurance System

The FAA’s latest oversight initiative, the Safety Assurance System (SAS), is a risk-based system used for certificate issuance, surveillance, and management for Part 121, 135, and 145 applicants and certificate holders.

How does SAS impact your organization? What do you need to know to “comply” with SAS?

SAS involves six Safety Attributes. They are, as described by the FAA:
• Responsibility: A clearly identifiable, qualified, and knowledgeable individual who is accountable for management of activities and their ultimate accomplishment.
• Authority: A clearly identifiable, qualified, and knowledgeable individual who can direct, control, or change procedures and make key decisions.
• Procedures: Documented methods to carry out activities that translate the “what” into the “how”.
• Controls: Parts of the system, including hardware, software, special procedures, checklists, and supervisory practices designed to keep processes on track to achieve attended results.
• Process Measurement: The certificate holder’s process to measure and assess its processes to identify and/or correct problems or potential problems.
• Interfaces: The certificate holder identifies, documents, and has a method to evaluate the impact of changes on related processes.

SAS considers certificate holders of similar capabilities and authorizations as “Peer Groups”. For example, Part 135 operators will be Peer Group 135B, 135C, etc., depending on whether your certificate is a 9 or less or 10 or more.

Each Peer Group is given a Master List of Functions (MLF), which identifies the critical tasks, as determined by the FAA, for that type of organization.

The MLF for your Peer Group is basically your cheat sheet to successful SAS’ing. Take a look at the tasks identified on the MLF and consider the six Safety Attributes for each of those activities.

Some inspectors drop off a giant stack of DCTs for an operator and request the operator complete them. Give yourself plenty of time for this task. Other inspectors give the operator a few DCTs at a time.

There are a couple of ways to approach the DCTs. One is to do a complete re-write of your manuals, identifying the MLF tasks and addressing each of the six Safety Attributes. I only recommend this route if you are already planning a major overhaul of your manuals. Otherwise, you can probably identify many of the Safety Attributes for MLF tasks in your existing manuals – even if worded slightly differently – and provide references for those sections. If you have a mature, functioning SMS, the SMS likely covers some of the process measurement, control, and interface items.

SAS is not a passing fad within in the FAA. It is here to stay. The agency recently launched the SAS Portal, through which they intend for operators to post manuals for their inspectors, inspectors to conduct DCTs for operators, and both parties to complete other general SAS-related tasks.

If you haven’t been handed a bunch of DCTs yet, it’s only a matter of time. When the inspector drops an encyclopedia-sized batch of documents on your desk, don’t panic but be prepared for some work. You’ve just been SAS’d.

 

Happy Holidays from McFarren Aviation Consulting!

In lieu of holiday cards for clients and colleagues, MAC has made a donation to Washington, DC’s Food & Friends program, which provides men, women, and children living with HIV/AIDS, cancer, and other life-challenging illnesses with specialized meals and groceries in conjunction with nutritional counseling. MAC’s office assistant Heidi (a lovable Border Collie/Husky mix) once again requested a donation be made to the Dumb Friends League, a humane animal rescue in the Denver area that each year places thousands of dogs, cats, and horses in loving homes.

Whether you celebrate Christmas, Hanukkah, Kwanzaa, New Year’s Eve/Day, or another holiday I wish you a safe and fun holiday season with friends and family!

Happy holidays from McFarren Aviation Consulting! I look forward to working with you again in 2016.

Aviation’s Biggest Reunion – Time for NBAA’s Convention!

It’s that time of year, my friends – time for the annual pilgrimage to NBAA’s Business Aviation Convention & Exhibition! This year we all head to Las Vegas, which isn’t exactly my favorite city, but this show could be in any location and it would still be a productive (and fun) event.

Here are my top picks for great educational sessions. If you find the contents of this blog interesting, these sessions will be interesting to you too!

  • Tuesday, Nov. 17, 1 PM – 2 PM – Kent Jackson and Kali Hague of Jackson & Wade will present “Deals: When the Handshake Didn’t Take.”
  • Wednesday, Nov. 18, 1 PM – 2 PM – Paul Lange of The Law Offices of Paul Lange and Lisa Swafford-Brooks from the Department of Transportation will present “Crowdsourcing Aircraft Charter – Navigating Current Regulations.”
  • Wednesday, Nov. 18, 2 PM – 3 PM – Don Chupp of Fireside Partners, Inc., will lead a live emergency response simulation.

Of course NBAA has planned several days of excellent programming, but these three are “can’t miss” sessions for me. I hope to see you at one of these sessions or while walking the show floor!

If you’ll be in Vegas and want to say hello, send me an email (lindsey @ mcfarrenaviation dot com) or comment here (your comment won’t be public) and we’ll catch up.

Finding Houdini

I am not what you would call an “early adopter.” I don’t use a Mac. My car runs on gas. I’m loath to buy a new printer because that requires setting it up and figuring out how to use it. Microsoft once moved the print button the Word toolbar and I had to resort to “control+P” for months.

When Unmanned Aircraft Systems (UAS) showed up in the general aviation space, I didn’t think it was Armageddon but I was pretty sure their arrival wasn’t good – safety concerns, security issues, oh the humanity!

On Thursday October 15, a 29-year-old horse named Houdini mimicked the famous magician and escaped his ranch in Castle Rock, Colorado, about 40 minutes from Denver. Groups of volunteers gathered on horseback, on foot, and on ATVs to look for the horse with no luck. Poor old Houdini has some health issues and his human family was worried sick.

Enter “the drone.” Kerry Garrison and Josh Gilson own Multicopter Warehouse, a UAS store in Castle Rock. Early Sunday morning, four days after Houdini’s disappearance, their UAS, equipped with Forward Looking Infrared (FLIR), detected Houdini’s body heat in thick brush.

Today Houdini is recovering well from his four days of entrapment in the brush. Searchers previously passed near that location and saw no indication of the horse. Without the UAS, Houdini might never have been found.

I still have concerns about UAS operating near traditional manned aircraft. We’ve seen UAS interfere with firefighting efforts and crash into a stadium during a major sporting event. The FAA proposed rules for small UAS in February and has since stood up a new joint industry-government task force to develop a process for registering UAS. No doubt, we’ve got some work to do.

But putting aside the almost limitless commercial uses for UAS, the humanitarian (and equine?) uses became real to me when Houdini was happily reunited with his 11-year-old caretaker and rider.

Fire spotting (a critical task in my neck of the woods), search and rescue, medical supply delivery following natural disasters… UAS are here to stay and it’s exciting to think about future uses.

Far more exciting than a new printer.

FAA Legal Interpretations: Five Things You Need to Know

My last post talked about a (sort of) new FAA legal interpretation regarding Part 135 rest requirements. Many Part 135 operators are uncertain of the relevance of legal interpretations (also called Chief Counsel’s Opinions) to their operations. Here’s what you need to know:

  1. Legal interpretations apply to the regulation in question, not a particular operator or individual.

Don’t dismiss a legal interpretation as being irrelevant to your operation simply because another company from a different FSDO in another region requested the interpretation. If you are subject to §135.267, the recent FAA interpretation regarding Part 135 rest applies to you, and so it goes with all legal interpretations.

  1. Legal interpretations are binding.

Some people believe compliance with a legal interpretation is optional. “I only have to do X if the regulations say so and the regulations don’t say I have to do X, so forget it.” An FAA legal interpretation is the FAA’s way of telling you what THEY think the regulations say. Their opinion is legally binding and you must comply.  (The only way a legal interpretation is not binding is if the NTSB determines an interpretation is “arbitrary, capricious, or otherwise not according to law”. I am not aware of a single example of this type of determination relating to a legal interpretation. If you know of one, share with the class!)

  1. Legal interpretations establish precedent.

Because Chief Counsel’s Opinions are legally binding, they also establish precedent for how the FAA will (should) enforce regulations in the future.

  1. Anyone can request a legal interpretation by writing a letter to the FAA. But maybe you shouldn’t.

Please, think long and hard before you request a legal interpretation. A request for interpretation can be a very public, very official confession of your own sins. There’s a reason why so many legal interpretations are addressed to law firms, trade associations and other third parties. Consider asking your friendly aviation attorney or consultant to write the letter for you. Confession (at least in this manner) isn’t always good for the soul.

  1. A request for interpretation should include detailed information.

Specify the exact regulation or regulations about which you are requesting clarification. Include a detailed scenario as an example. From time to time a legal interpretation goes very wrong because the requestor is too vague in the request letter. Then we’ve got a legally binding (#2) precedent (#3) that applies to everyone (#1) and probably a very public confession (#4) based on bad information. Be specific.

But mostly, I refer you back to #4…

Visit or return to McFarren Aviation Consulting’s homepage. 

Part 135 Rest Rule Interpretation: AKA SSDD (Subtitled: It’s Not the End of the World as We Know It)

The FAA recently published a “new” interpretation of 14 CFR 135.267, “Flight time limitations and rest requirements: Unscheduled one- and two-pilot crews”. This should also be known as a “same [stuff], different day” interpretation.

The requestor presented the FAA’s legal folks a “hypothetical” scenario in which a pilot finishes assigned duties on a Wednesday at 2200 Eastern Standard Time, at which the pilot’s rest period starts and continues until 0800 EST on Thursday. After this 10-hour rest period, the pilot isn’t called to report for duty until he/she receives a “2 hour callout” on Friday morning at 0200 EST for an 0400 EST flight. The requestor called this a “rolling rest” policy and asked if it was compliant with 135.267.

The FAA answer: This policy would not meet the requirements of 135.267. Why? For a rest period to be valid, it must be three requirements. It must:

  1. Be continuous*
  2. Be free of responsibility to the air carrier
  3. Be prospective (that is, the start and stop time are known to the pilot in advance)

*Note: There is a one-call exception, in which the air carrier may attempt to contact the pilot and the call does not invalidate the rest period.

The rolling rest concept described above violates #3 – the pilot does not know when the rest period ends

Here’s the inconvenient truth: This isn’t a new interpretation of rest. The FAA has been interpreting rest this way for years. If you haven’t heard the three requirements above, you’re a little late to the party.

What’s different and interesting (read: terrifying – to some operators, anyway) about this rest interpretation compared to previous ones is who wrote the request for interpretation and some ancillary questions included in that request.

A pilot – presumably one who flies for a Part 135 operator – requested the interpretation and the pilot asked why FAA inspectors routinely allow companies to violate this rule.

Some Part 135 operators I’ve talked with are concerned their pilots would write a request for interpretation like this one and inadvertently (or purposely) expose potential noncompliance within the operator’s policies and procedures. Other operators have already received notice from their inspectors to get their house in order because this interpretation points to some inspectors’ tacit approval of noncompliance in this area. Now inspectors might be afraid their oversight of Part 135 operators will come under scrutiny.

The initial panicked reaction of the industry seems to be, “Oh my goodness! Now I need two full crews for every aircraft we operate! It’s the end of the world as we know it!”

Calm down. No, no you don’t need two crews. You do need to consider some creative and practical solutions.

Think about the scenario above and put yourself in the pilot’s shoes. If you went to bed at 2200 or 2300 on Thursday, probably an average adult bedtime, how prepared are you to wake up at 0200 and be ready to fly at 0400 on Friday morning? Okay, so you think pilots have it really good and just whine too much. Do you want your spouse, children, or parents flying with a pilot who had 3 hours of sleep? I don’t want my dog on that airplane. Yet for some Part 135 operators, this rolling rest concept is the norm.

That said, many Part 135 operators do NOT operate this way. Their policies and procedures might not meet the exact requirements of the regulations but they are practical enough not to ask a pilot to fly on 3 hours of sleep as a standard practice.  A lot of Part 135 operators are probably closer to compliance than they think and just need to tighten up and more clearly document their flight and rest procedures.

So if your policies and procedures aren’t quite in compliance, what do you do? There are a number of ways to ensure compliance. One is to establish a standard rest period for all crewmembers. Set this time to coincide with your lowest flight activity, say 2000-0600 every day. That’s the “standard” rest period – not guaranteed to be the same every day; of course, there will be times the operator needs to adjust that rest period to accommodate flight requests. The appropriate means of compliance will depend on the operator’s flight profiles, existing policies and even company culture.

Any time you revise a policy a significant as this one, be sure to:

  1. Document the change in appropriate manuals (GOM, flight control/dispatch/scheduling, etc.)
  2. Train appropriate staff (pilots, flight controllers/dispatchers/schedulers, CUSTOMER SERVICE/SALES!)
  3. Consider advising your clients, particularly aircraft owners who frequently fly Part 91 on their own aircraft but offer it for charter sales as well

Assume your inspector has read this interpretation too and be prepared to explain how your organization meets the requirements.

Work with a consultant or aviation attorney who specializes in Part 135 regulations to develop policies and procedures appropriate to your operation.

Click here to read the interpretation.

(This week’s post was supposed to be about how and when to request a legal interpretation from the FAA. This rest interpretation is too important to put off another week so I’ll get to legal interpretations in general in the next post.)