Tag Archives: FAA compliance

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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PINC – Not the Tattooed Rocker Girl

After the recent post on ensuring regulatory compliance as a New Year’s Resolution, I think it’s the perfect time to talk about PINC – not the girl rocker – she’s “P upside-down-exclamation-point NK”. I’m talking about PINC – procedural intentional non-compliance. I haven’t heard the term PINC in a few years. Maybe it was just a buzz word (acronym) and its time has passed, but I can tell you – the concept is alive and well. So what is it?

Procedural: There are a number of definitions for “procedural”, oddly enough none of them especially appropriate here. “Of or relating to a procedure” is the most relevant but shame on Merriam-Webster for defining a word with the word. So let’s go one step down: procedure – “an established or official way of doing something”.

Intentional: “deliberate”.

Non-compliance: “failure or refusal to comply”. Oh here we go again. Let’s cut to the chase: non-compliant = illegal.

So PINC is an established way of doing things that a company or individual deliberately chooses that happens to be… illegal.

Of course we (intentionally ambiguous royal “we”) would never purposely break the rules. We all strive to be good aircraft operators, air carriers, repair stations, and so on. Unfortunately PINC is still hanging around.

One of the most prevalent examples of PINC I encounter involves Part 135 flight and duty regulations. The FAA is fairly clear that rest must be prescriptive (known in advance), continuous, and free of obligation or responsibility. That doesn’t stop air carriers from implementing covert (or worse – blatant) “standby” schedules in which pilots are never really on “rest” and are always obligated to respond to the air carrier. Some operators are just unaware of the FAA’s relevant interpretations (large rock? I’m not sure how this argument is sold) but others are well aware of the FAA’s thoughts on flight and duty and continue to operate in violation of those policies. PINC is almost always justifiable in some way – that’s what makes it so hard to kill. In the case of flight and duty, the justification is usually, “Well, the FAA isn’t actively enforcing its interpretations so I’ll just keep doing what I do.”

Another common example is the safety pilot concept (see blog post “Safety Pilot” – a Dangerous Proposition). In this case a second pilot is assigned to a single-pilot aircraft that is not equipped with a CVR as a matter of company policy or customer request. The second pilot is called a “safety pilot” but is – in most cases – actually an example of non-compliance. The justification for this example of PINC is in the name. “The flight is safer when conducted with two current and qualified pilots. A CVR is a reactive tool to investigate accidents. We assign two pilots to the flight as a proactive measure to mitigate risk and increase safety.” While this logic is technically true, it is inconsistent with the Federal Aviation Regulation that governs this scenario.

Shirt pocket maintenance write ups are another example. The justification for this PINC example is usually something like this, “It was a very small problem and we fixed it right away. We’re very busy and maintenance paperwork is cumbersome. What would you like us to spend time doing – actually fixing aircraft or filling out paperwork?”

If you practice your justifications in front of the mirror long enough you can probably repeat them with a straight face. You might even whole-heartedly believe your justifications. But it’s hard to say whether the FAA, NTSB, or worse – a jury – would buy your rationalizations in the event of an investigation or accident.

There are other examples of PINC in the industry but I want to keep some of our secrets (intention use of ambiguous first-person plural personal pronoun again).

Take a look at your operation. What are you doing that you shouldn’t be? Is your justification good enough to let you sleep at night or should you consider a new policy or procedure?

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Compliance: A New Year’s Resolution

I know you are likely in the flurry of holiday festivities but let’s take a moment to look ahead to 2014. Over 40% of Americans make New Year’s resolutions – to lose weight, keep to a budget, spend more time with family, whatever it is. Do you make New Year’s resolutions for your company? You probably do, but you likely call them “goals”, “metrics”, or “performance indicators”.

I have a suggestion for one of your 2014 company goals: verify the regulatory compliance of your organization.

An individual seeking a Part 135 air carrier certificate must complete a letter or statement of compliance to prove their compliance to the FAA. The statement of compliance is essentially a table that lists each regulation applicable to the air carrier and also the manual or document location in which the operator demonstrates compliance. Many companies believe this statement of compliance is a one-time deal – once the air carrier obtains certification, the company never needs to look at the statement of compliance again. However, the FAA has indicated the letter of compliance should be a “living document” which should be updated when the operator makes changes to manuals and other documents. (And even if the FAA doesn’t require a new statement of compliance with every manual revision, wouldn’t it be great to say, “Here’s my new manual revision, Mr./Ms. POI. You’ll see the revisions are compliant with the regulations by referring to the handy dandy statement of compliance I’ve provided.” Then smile and offer the inspector a cookie. More on cookies in a future post.)

Many operators think their annual audit by XYZ Auditing Firm or their IS-BAO registration ensures their Part 135 regulatory compliance. That is a false and potentially costly assumption. The Air Charter Safety Foundation Industry Audit Standard is the most complete compliance audit currently available but for various reasons, only a handful of operators have completed that audit. Don’t assume you are compliant with Federal Aviation Regulations just because you have a fancy audit certificate in your lobby. Also don’t assume you are compliant just because your FAA-assigned inspectors have approved or accepted your manuals. (See the “My Inspector Said” post.)

I often see companies in business for many years that are on revision 30 or higher for operations and maintenance manuals but seldom have they updated their statement of compliance since certification. It’s not difficult for manuals to fall out of compliance. Occasionally companies that have experienced significant management or ownership changes or have had numerous manual revisions inadvertently drop manual language that is required by regulation. Federal Aviation Regulations change frequently and it can be difficult for operators to keep up. Many operators forget to make appropriate changes to Department of Transportation (DOT) regulations (hazardous materials, anyone?) and National Transportation Safety Board (NTSB) regulations. (Go look at your operations manual or whatever document outlines the NTSB accident reporting requirements. If the revision date of that section is older than June 22, 2010, your manual is out of date and you risk failing to submit a required report if you use your manual as a reference. Forgot about that one? You’re in good company. Most operators do. Don’t get me started on hazmat. The DOT seems to change 10 words every few years. Identifying those 10 words and revising your manual and training program is kind of like a riddle – but a riddle that could cost you big bucks if you mess up.)

Your New Year’s resolution for 2014 should be to assess your manuals and documents by completing a new statement of compliance. Then identify any omissions or inconsistencies and make appropriate corrections to ensure your company is in compliance. It is best for YOU to identify these gaps before another party (*cough cough* the FAA) does.

“But Lindsey, why do I need to be concerned about regulatory compliance if the FAA has approved or accepted my manuals?” I refer you once again to the “My Inspector Said” post, not to mention the fact inspectors are human too and mistakes happen. Plus there are some situations that prompt “special” FAA surveillance. The sale of a company that holds a Part 135 air carrier certificate, significant management or business model changes, financial hardship/bankruptcy of an air carrier, and a number of other scenarios can trigger in-depth FAA inspections, including detailed manual reviews. Certainly a significant accident can prompt an investigation of your compliance by the FAA, NTSB, and even plaintiffs’ attorneys. Aside from the desire to keep the FAA happily at bay, you should consider completing a new statement of compliance or revising your current statement of compliance if you’ve been in operation for a long period of time (say 10 or more years) or you are considering selling your company.

Are you sure your company is in compliance with all applicable FAA, DOT, and NTSB regulations? Pretty sure? Maybe? Have I mentioned OSHA compliance? Now there’s the holiday spirit!

Give me a call (703-445-2450) or send me an email if you have compliance questions or want to start off the new year with a clean statement of compliance. Then if you don’t lose weight, stick to your budget, or spend more time with the kids in 2014, at least one resolution was successful!

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