Most Frequently Issued FAA Part 135 Violations

1. Most Frequently Issued FAA Part 135 Violations Paul A. Lange, Esq. Law Offices of Paul A. Lange, LLC Stratford, CT and New York, NY

2. Overview and Structure • What Joe Conte and I each do, and how it affects what we present to you • How each of our statistics are derived

3. Vast majority of reported Part 135 air carrier enforcementaction case law involves recordkeeping. • The underlying allegations arise in many areas, but often in operations and maintenance recordkeeping, drug and alcohol testing, and training • Increasing TSA enforcement, typically involving recordkeeping as well; HAZMAT cases continue

4. Recordkeeping’s slippery slope • When does a recordkeeping error become intentional falsification? • Falsification = Emergency Revocation • Usually against both the air carrier certificate and against the individual certificates held by the individuals involved

5. Quick primer on the elements of intentional falsification • A false representation • In reference to a material fact • Made with knowledge of its falsity

6. AIR CHARTER SUMMITNATA 2011 JOSEPH A. CONTE ENFORCEMENT DIVISION FAA OFFICE OF THE CHIEF COUNSEL

7. COMMON MISTAKES BY AIR CARRIERS • DRUG AND ALCOHOL TESTING • MAKING EXCUSES THAT MAKE IT WORSE • RECORDKEEPING: MAINTENANCE/OPS • READING SAFETY RULES OUT OF CONTEXT

8. DRUG AND ALCOHOL TESTING • PRE-HIRE/PRE-TRANSFER TESTING • PERMANENT BARS FOR INDIVIDUALS WHO TEST POSITIVE TWICE • REASONABLE SUSPICION v. SICK OUT • SAFETY SENSITIVE “DUTY”: SPOTTERS FOR PILOTS WEARING NVGs; WEIGHT AND BALANCE CALCULATORS; CHIEF PILOT • DUTY TO SEEK INFO FROM PREVIOUS EMPLOYERS, INCLUDING SELF.

9. MAKING EXCUSES THAT MAKE IT WORSE • HIRED MECHANIC BEFORE RECEIVING A VERIFIED-NEGATIVE DRUG TEST AND MECHANIC SIGNED OFF ON AIRCRAFT: DEFENSE WAS THAT THE MECHANIC DID NOT DO ANY MAINTENANCE ON THE AIRCRAFT, JUST SIGNED OFF FOR DIRECTOR OF MAINTENANCE: FALSIFICATION? IMPORTANCE OF RECORDKEEPING.

10. RECORDKEEPING • MAINTENANCE: Why ‘who’ signs off matters. • MAINTENANCE: SHOULD STORE AND ORGANIZE FILES ON AN AIRCRAFT BY AIRCRAFT BASIS WITH DESCRIPTIONS OF THE METHODS AND TECHNIQUES USED TO MAINTAIN THE AIRCRAFT.

11. READING SAFETY RULES OUT OF CONTEXT • FAILING A CHECK RIDE IN A TWIN-ENGINE AIRCRAFT. CAN THE PILOT CONTINUE TO OPERATE A SINGLE-ENGINE AIRCRAFT IN PART 135 OPERATIONS? Should 135.293(b) be read alone or should it or must it be read with 135.301(b)?

12. READING SAFETY RULES OUT OF CONTEXT • FLIGHT AND DUTY. AIR CARRIER HAD A PRACTICE OF HAVING ITS INSTRUCTOR PILOTS TEACH IN A SIMULATOR X DAYS PER WEEK AND FLY THE LINE THE REMAINING DAYS. THOSE PILOTS NEVER GOT A DAY OFF. FAA SAID THAT VIOLATED THE “24 IN 7” RULE. • CARRIER READ A FEW SENTENCES IN ONE INTERPRETATION OUT OF CONTEXT. IGNORED SCORES OF OTHER INTERPRETATIONS, INCLUDING INTERPRETATIONS THAT CITED THE INTERPRETATION-IN-QUESTION, FOR THE OPPOSITE RESULT. IGNORED • PURPOSE OF ONE DAY OFF IN SEVEN: FIGHT CUMULATIVE FATIGUE.

13. READING SAFETY RULES OUT OF CONTEXT • 15 HOUR 50 MINUTE NONSTOP FLIGHT. 4- PILOT CREW. • ADEQUATE SLEEPING QUARTERS: WHERE? MIDDLE COACH SEAT BETWEEN TWO PAXs? IS THAT EVEN AN ADEQUATE REST FACILITY? • NEW ARGUMENT: THE SAFETY RULES SPECIFICALLY DIRECTED TO 4-PILOT CREWS ARE EXCLUSIVE OF RULES THAT APPLY TO ALL PILOTS REGARDLESS OF THE NUMBER OF PILOTS IN A CREW.

14. How do you avoid these problems altogether, and fix those that you do have? • Avoidance Strategies • Voluntary Disclosure Reporting Program (VDRP)

15. Avoidance Strategies • Attention to detail - be persnickety • Always question whether there's anything else that you should be doing with respect to your recordkeeping - are you sure it's "bullet proof"? • Audit/test your own recordkeeping systems periodically

16. Avoidance Strategies • Ensure that all recordkeeping is compliant with FAR requirements. • Random drug/alcohol testing pool hypothetical: • Two separate corporate entities with two separate Part 135 Certificates; some overlap in ownership. • Pilot employed by both entities (and actively flying for both entities) is inadvertently included in the random testing pool for only one of the 135 Certificates. • Technical violation of FARs, even if actually tested with negative test results. Solution: Employ good recordkeeping practices to ensure no lapse of pilot enrollment/inclusion in random testing pools.

17. Avoidance Strategies • What if operations cannot be conducted in a manner compliant with FAR Part 135? • DO NOT reclassify operations under Part 91 (unless actually within confines of Part 91)! • Administrator v. Jetsmart, Inc. and Howe, NTSB Order No. EA-5572 (Feb. 2011). • Involved, in part, transportation for compensation/hire from Rochester, NY to Bridgeport, CT • BDR runway of insufficient length for Part 135 operations in particular aircraft • Jetsmart employee testified that flights were classified in records as Part 91 to avoid runway length restrictions

18. Avoidance Strategies • Jetsmart’s defense under Hart with respect to issues of “knowledge” failed • ALJ determined that “Howe’s testimony that he did not intend to include references to part 91 on the flights logs and flight duty records was not credible.” • Also telling that Jetsmart still assessed and collected excise taxes for operations, despite position that flights were operated under Part 91. • Falsification resulted in revocation!

19. Voluntary Disclosure Reporting Program (VDRP) • Advisory Circular 00-58B • Attention to detail in following the requirements • Risk versus reward analysis

20. VDRP and Prosecutorial Immunity? • Recent NTSB case law has considered whether ALJ must consider affirmative defense of immunity under VDRP. • Administrator v. Moshea: • NTSB Order No. EA-5328 (Oct. 19, 2007): • Affirmed ALJ’s refusal to consider affirmative defense. • U.S. Court of Appeals for DC Circuit, 570 F.3d 349 (2009): • Vacated NTSB decision and remanded. • NTSB Order No. EA-5523 (June 10, 2010). • Remanded to ALJ for consideration of affirmative defense and reconsideration of sanction. • Current status: defense of immunity is not absolute and disclosure must strictly adhere to requirements of AC 00-58; appears that ALJ must at least consider.

21. Conclusion • Attention to detail • Periodically test/ audit your own systems • Quickly fix problems found while they’re small • Follow VDRP AC even if it doesn’t apply or if you ultimately choose not to disclose- it provides a solid framework/ checklist to use in avoiding recurrences as well as new problems • Also helps in your defense should the FAA come knocking