Tag Archives: regulatory compliance

regulatory 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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Training – Are You $150,000 Confident You’re Compliant?

The FAA just dropped a little “Happy Friday”-gram on one of our colleagues, proposing a $150,000 civil penalty against a Part 135 air carrier for allegedly violating Federal Aviation Regulations by allowing four pilots to fly without proper training or examinations.

The FAA alleges three of the pilots did not undergo recurrent training or receive competency flight checks within the required periods of time. The agency alleges the fourth pilot’s initial training was conducted by an unqualified person. As a result, none of the pilots were qualified to fly the charter carrier’s Hawker 4000 aircraft.

The FAA alleges that collectively, the pilots flew at least 64 times between October 23, 2011 and July 9, 2012 while they were unqualified to serve as on-demand flight crew members.

The operator has 30 days from the receipt of the FAA’s enforcement letter to respond to the agency.

I’m not particularly familiar with this air carrier so I can’t/won’t weigh in on the likelihood the FAA’s allegations are true, nor do I know how the operator will respond. It’s common for operators to appeal enforcement actions like this one. Sometimes the allegations are true, sometimes they aren’t exactly as the original enforcement letter portrays (although the FAA doesn’t typically issue enforcement letters without a detailed investigation). Sometimes there are mitigating circumstances that can eliminate or reduce fines. Sometimes the operator just signs the check. The problem with civil penalties related to training is the fines add up exponentially. They aren’t typically a one-time training penalty. The operator also gets fined for each and every non-compliant flight conducted after the inadequate or non-compliant training event.

In any case, I think it’s important for other operators to watch FAA enforcement actions. Enforcement actions on other air carriers give the rest of us an idea of the agency’s current focus and sometimes the agency’s motivations. We shouldn’t be surprised the FAA is looking for instances of training non-compliance, given the multi-year saga of Part 135/142 training issues we as an industry have been working through. But this does serve as a reminder to take a good, hard look at your own training compliance.

I conduct pilot training record reviews as part of various safety and operations audits and sometimes as a separate initiative requested by the air carrier. It’s possible (hypothetically, allegedly…) that I’ve never come out of a pilot training record review without findings. In some cases it’s as simple as missing records that are eventually produced from the training center or found in someone else’s file. In other cases the findings are more much serious and after some advice from the air carrier’s attorney, the operator files a voluntary disclosure with the FAA and we work out a plan to ensure no future violations. If the FAA comes digging through your records, you might not like their findings. 

Are you SURE – absolutely sure – you’re compliant? And not just because your POI said you’re good or your long-term Director of Operations or Chief Pilot said you’re compliant? (I’m sure they’re both competent, wonderful people but mistakes happen.) Training compliance isn’t a “close enough” game – we’re not talking horseshoes or hand grenades. You are either compliant or you’re paying the piper. 

Would you bet $150,000 on it?

 

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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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