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…

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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.)

Single Pilot Operations: Sometimes the FAA Screws Up (and Then Fixes It)

Do you remember a 2013 post on this blog about “safety pilots”, single pilot Part 135 operations, autopilot, and CVRs?

If you don’t operate single pilot, keep reading anyway. There’s a lesson here for all operators.

Here’s the scenario discussed in that 2013 blog post: a charter operator conducts Part 135 flights in a King Air 200, which is certificated for single pilot operations and is not typically equipped with a cockpit voice recorder (CVR). In 2014, the FAA issued a new interpretation addressing this exact scenario.

The interpretation discussed §135.151, which prohibits a person from “operating a multiengine, turbine-powered airplane or rotorcraft having a passenger seating configuration of six or more and for which two pilots are required by certification or operating rules unless it is equipped with an approved cockpit voice recorder (CVR)”. “By certification or operating rules” is a critical phrase because it means if the aircraft is not equipped with a CVR, the operator is limited by §135.151 to single pilot operations. However, § 135.101 requires two pilots for Part 135 operations in IFR conditions.

The 2014 interpretation said, “Section 135.105 allows for the use of an autopilot in lieu of a second in command. Accordingly, although you are required to have two pilots to operate in IFR conditions under § 135.101, you are able to operate using one pilot and an autopilot under the exception allowed in §135.105. When qualified under those circumstances, you ask whether a cockpit voice recorder is required under §135.151(a). Yes, a CVR is required for IFR operations. Section 135.151 includes in its applicability the phrase ‘and for which two pilots are required by certification or operating rules’ (emphasis added). As noted, §135.101, an operating rule, requires a second pilot when operating under IFR. This triggers the §135.151(a) requirement for a CVR when two pilots are required by an operating rule.”

This interpretation caused near panic among many Part 135 operators. The King Air 200 scenario discussed above is a pretty common one and has been accepted by FAA field inspectors for decades.

In April, the FAA issued a new interpretation, responding to an NBAA request for interpretation by NBAA’s VP of Regulatory and International Affairs Doug Carr. The “Carr Interpretation” reversed the 2014 interpretation, saying, “We now determine it is reasonable to read §135.105(a) as an operating rule that provides relief from the two-pilot requirement of 135.101, and find that a CVR is not required for operations under §135.105 when the required autopilot is used to comply and the certificate holder possesses the appropriate operations specifications in order to conduct single pilot operations under §135.105. However, when the required autopilot is not functional, the aircraft is restricted to either VFR operation with a single pilot, or to operation with two pilots under a valid SIC program with a CVR installed on the aircraft and used during the operation.”

If you’re a single pilot operator without CVR, you did a happy dance when the Carr interpretation came out and this isn’t news to you.

If you aren’t a single pilot operator, there is still a lesson to be learned here: The FAA can be wrong but can be persuaded to see the light (the interpretation actually uses the phrase “in light of these circumstances”) when presented with the right information.

Why was the 2014 interpretation so… bad? It’s possible the initial request for interpretation didn’t present enough information for the FAA attorneys to make a reasonable decision. It’s possible the FAA attorneys had a rough day. Anything is possible. But FAA interpretations are legally binding on the agency and they set precedent for future oversight and enforcement actions. A bad interpretation can have long-lasting effects.

Kudos to the FAA for acknowledging their error and publishing a clear, definitive interpretation that supports the long-held position of its field inspectors, and thanks to the folks who pushed for the original interpretation to be reversed.

Stay tuned for the next post for more insight into the power of FAA legal interpretations, how to request one, and when you (maybe) shouldn’t.

Clear as Mud – Duty Time Tracking for Managers

 

You know how sometimes the FAA publishes a legal interpretation meant to clarify a regulation and instead does the exact opposite – makes the issue even muddier? You know… not often… just sometimes…

In 2014, the FAA published a legal interpretation regarding Part 135 duty tracking, specifically in regards to “flight-qualified management.” The second paragraph of the interp contends that 135.63(a)(4)(vii) does not require a certificate holder to maintain a specific record of a pilot’s duty time.

Awesome! Now a flying manager can stop tracking all those pesky office hours and other non-flight related time, right?

WRONG! Without the context of the interp requester’s exact question, it’s hard to say whether this is a terribly worded paragraph in the legal interp or… Okay, it’s a terribly worded paragraph that – if taken at face value – can lead you to trouble. Technically, it’s an accurate statement – Part 135 does not specifically require a certificate holder to track duty time.

But wait – there’s more!

The next paragraph in the interp states that “each certificate holder operating under Part 135 is responsible for complying with all applicable flight, duty, and rest regulations of Part 135.” Right. So how do you prove a flying manager is legal for a flight without documenting the required rest period? And how do you document a rest period without documenting duty time?

You may recall from previous blog posts that to be a true rest period, the period must:

  1. Be continuous;
  2. Have a determined start and stop time; and
  3. Be a period in which the individual is free from responsibility to the certificate holder.

In “Managing Flying Managers“, I presented some challenges in having true rest periods for managers, particularly in small operations. Even with creative solutions, I know it can be difficult to have a flying manager truly “off.” I encourage you to consider scheduling options like trading “on-call” status of flying managers. Each Part 135 operation is different but with a little ingenuity it is possible to be safe and (reasonably) compliant.

Are You Compliant? Learn More about Regulatory Compliance at Upcoming Course (And Have Fun Too!)

NBAA will be hosting “Regulatory Compliance and Documentation” on September 14 in Washington, DC. The course will include an overview of various federal and state regulatory requirements facing aircraft owners and operators and discuss real-life methods for complying with those requirements.

Kent Jackson and Kali Hague, both of law firm Jackson & Wade, LLC, will be presenting. I will be attending as well, mostly to heckle assist the speakers.

Kent and Kali will share how to stay current with changing regulatory requirements; discuss documentation requirements in the digital age; present pros and cons of compliance with best practices, including Safety Management Systems; and more.

The course promises not to be just educational, but also engaging and entertaining. If you are familiar with these presenters’ expertise and speaking style, you know you will walk away with practical advice for your flight department or business and also have a fun day. A fun day while learning valuable information from very knowledgeable presenters? Sounds great to me!

Click here for more information or to register. https://www.nbaa.org/events/pdp/regulatory-compliance-and-documentation/20150914/

The course is part of NBAA’s Professional Development Program (PDP) but is open to all business aviation professionals.

84,700 Reasons to Continuously Audit Your Pilot Records

Occasionally, someone tells me I’m too picky about the accuracy of pilot records or I am unreasonable because I expect perfection in training and checking compliance. Do you know who else expects perfection? The FAA. Do you know what an error or oversight can cost you? Tens of thousands of dollars.

(The FAA and I both have allowances for human error. See the section about the Voluntary Disclosure Reporting Program below. The FAA isn’t totally heartless. Neither am I.)

The FAA recently proposed an $84,700 civil penalty against an Illinois-based Part 135 air carrier operating two aircraft. The FAA alleges the air carrier allowed one of its pilots to fly at least 16 revenue flights between June and September 2014 when he had not passed a required FAA competency check within the past 12 months for the category, class and type of aircraft he was operating.

With civil penalties related to training or checking violations, the dollars don’t just add up – they multiply. Typically there’s a penalty for the training or checking violation itself PLUS an additional penalty for each Part 135 revenue flight conducted by that pilot until the training or checking event is successfully completed. You can see how a minor oversight or error can turn into big bucks, even over a fairly short period of time!

The FAA publishes these proposed penalties in the form of very short press releases, leaving a lot of questions for those reading the release until the enforcement case is finally closed (usually settled for an amount less than that proposed) but there are some lessons to be learned even from the little information presented in the press release.

  • Your company isn’t “too small” be noticed. This air carrier operates two airplanes.
  • An error or oversight you make now can cost you a fair chunk of change – even if it takes the FAA almost a year to make a decision on civil penalties.
  • Frequent auditing of your pilot records can save you a bundle.
  • If you catch an error or oversight in your pilot records, the FAA’s voluntary disclosure reporting program (VDRP) might be your best friend – assuming you have a log-in for the website so you can submit a report within 24 hours of your discovery.

You DO have a log-in for the website, right? If not, go get one! It is not uncommon for me to discover training or checking violations in formal audits, gap assessments, or routine consulting projects. The client who already has a log-in for the VDRP’s website can avoid an awkward phone call with their FSDO.

(Please note this organization has the right to respond to the FAA and appeal the allegations. It’s my unofficial policy not to name an organization against which the FAA has alleged violations unless and until the case is settled.)

I’ve talked about training and checking violations, crewmember records, records retention, and internal auditing procedures before. Read up on suggestions and guidance in previous posts by clicking the links.

Every Dog Has Its Day – the Importance of Complying with Pet Importation and Quarantine Requirements

“Lucky dog gets a big ol’ bed, stray dog gets the porch. Every dog has its day dog, but today dog just ain’t yours.” So goes a country song by Toby Keith that probably holds a whole new meaning for two Yorkshire terriers. For Pistol and Boo, actor Johnny Depp’s dogs, a recent day in May wasn’t their day when the actor allegedly smuggled the pups into Australia without following that country’s quarantine laws.

An investigation is underway to determine whether prosecution of Depp and/or the pilot is appropriate. It’s possible Depp can simply pay a fine and move on but the fate of Pistol and Boo could have been much more severe. The Australian Agricultural Minister threatened to euthanize Pistol and Boo. Depp’s pilot might still face prosecution and jail time.

The pups escaped execution in Australia but their arduous journey wasn’t over even after being flown back to the U.S. The U.S. does not recognize Australia as a rabies-free country so their return to the U.S. was not met with Lady Liberty’s open arms. Instead the dogs were subject to “investigation” and “temporary confinement.”

There are a few lessons to be learned from this experience:

  1. Know the customs and immigration requirements of any country you’ll be flying to. Don’t just focus on human visa requirements and throwing out catering at the appropriate time. If you’re transporting pets, be sure to know what your destination country requires in order to bring animals into the country.
  2. Once you know the rules, FOLLOW THEM.
  3. Business aviation is no doubt a service-focused industry. Don’t let a concern about inconveniencing a passenger or owner prevent you from following the rules. This concept – compliance over service – should be your motto whether the issue is a short runway during a rainstorm, extra baggage that pushes the aircraft’s loading limits, or yes – even whether to sneak two tiny dogs into another country. In fact, non-compliance is actually a disservice to your passenger. I assume Depp wasn’t happy about the possible demise of his pets.
  4. When in doubt, refer to numbers 1 and 2 above.

(Note: I’m not saying the pilots intentionally tried to circumvent the rules because of pressure from Depp or anyone else. I wasn’t there. I don’t know. I’m just saying if you’re ever tempted to bend the rules in order to make a client happy – DON’T. Your passenger can probably afford the fine. You might not want to spend a couple of years in jail. And Pistol and Boo? I’m certain they didn’t want to go “Down Under” in quite that manner.)

“Every dog has his day dog, when the big dog throws him a bone. One moment in the sunshine when your ducks lined up in a row…”

Make sure your international trip planning considers your four-legged passengers.

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