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.)

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.