### UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: SUN QUEST EXECUTIVE AIR CHARTER, INC. FAA Order No. 2011-13 Docket No. CP08WP0004 FDMS No. FAA-2008-0238 1 

### Served: November 22, 2011 DECISION AND ORDER2 I. 

### Introduction Complainant Federal Aviation Administration (FAA) has appealed the written initial decision ofAdministrative Law Judge (ALJ) Richard C. Goodwin.3 

### Among his findings, the ALJ held that the failure ofRespondent Sun Quest Executive Air Charter, Inc. (Sun Quest) to include in its flight and duty time records 50.4 hours offlights that

one ofits pilots made for the Los Angeles Police Department (LAPD) did not constitute a violation of 14 C.F.R. 

### § 135.63(a)(4)(vii)4

1Materials filed in the FAA Hearing Docket(except for materials filed in security cases) are also available for viewing at the following lntemet address: www.regulations.gov.
2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules ofpractice, and other infonnation, are available on the Internet at the following address: wwwfaa.govlaboutlojjice _org/headquarters_ojficeslagc!pol_adjudication!AGC400/ Civii_Penalry. In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRAN-FAA database). For additional information, see the Web site.
3 A copy ofthe ALJ's initial decision is attached.
4 Section l35.63(a)(4)(vii) provides as follows: (a) each certificate holder shall keep at its principal business office or at other places approved by the Administrator, and shall make available for inspection by the Administrator the following- 

## * * * (4) An individual record ofeach pilot used in operations under this part,Section 135.63(a)(4)(vii) ofthe Federal Aviation Regulations (FAR) requires certificate holders who operate under 14 C.P.R. Part 135 5 to "keep [a]n individual record ofeach pilot
... including
... the pilot's flight time in sufficient detail to determine compliance with the flight time limitations." The FARrequire certificate holders to count "other commercial flying" as flight time for the purpose ofthe flight time limitations. See, e.g., 14 C.P.R.§ 135.267(b) and (c)(2), which include "other commercial flying" in the amount offlight time that a Part 135 flight crewmember may not exceed.6 The FAA had argued that Sun Quest pilot Mark C. Smith's flight time for the LAPD was "other commercial flying," a record ofwhich Sun Quest needed to keep.7 The ALJ heldthatthe LAPD flights involved public aircraft and were therefore not subjectto FAA regulation. To support his determination that the LAPD helicopter was a including the following information: 

## * * If; (vii) The pilot's flight time in sufficient detail to determine compliance with the flight time limitations ofthis part.
5 Requirements for commuter and on demand operators are set forth in 14 C.F.R. Part 135.
6 Section 135.267(b) and (c)(2) provide: (b) Except as provided in paragraph (c) ofthis section, during any 24 consecutive hours the total flight time ofthe assigned flight when addedto any other commercial flying by that flight crewmember may not exceed

- (I) 8 hours for a flight crew consisting ofone pilot; or (2) I0 hours for a flight crew consisting oftwo pilots qualified under this part for the operation being conducted. (c) A flight crewmember's flight time may exceed the flight time limits of paragraph (b) ofthis section ifthe assigned flight time occurs during a regularly assigned duty period ofno more than 14 hours'and

- ... (2) Ifflight time is assigned during this period, that total flight time when added to any other commercial flying by the flight crewmember may not exceed- (i) 8 hours for a flight crew consisting ofone pilot; or (ii) 10 hours for a flight crew consisting oftwo pilots
.... (Emphasis added.)
7 The FAA did not allege that Sun Quest actually violated the flight time limitations-

. instead, it simply alleged that Sun Quest failed to recordthe pilot's flight time for the LAPD. 

### 2

### public aircraft, the ALJ wrote that the LAPD was a governmental unit and that it owned and operatedthe helicopter flown by the Sun Questpilot. Further, the ALJ wrote, there
was no evidence that the aircraft performed any activities other than police work. In addition, the ALJ held that:

• Sun Quest did not violate Section 135.63(a)(4)(vii) by nottracking in the flight and duty time records as other commercial flying the 1.3-hour check ride that Smith administered on January 24, 2005;
• Sun Quest violated Section 135.63(a)(4)(vii) by not tracking in the flight and duty time records as other commercial flying the 1.5-hour check ride that Smith gave to a company pilot onMarch 9, 2005;
• Sun Quest's records generally failed to satisfy Section 135.63(a)(4)(vii) regarding the flight time that it did track because while itrecorded the total amount oftime per flight, it did not record the time that each flight began and ended. TheFAA sought a $20,000 civil penalty in the amended complaint. The ALJ assessed a $5,000 civil penalty for the violations that hefound. The FAA only appealed from the ALJ's finding regarding the LAPD flights, and Sun Quest did not appeal. This decision affirms the ALJ's decision in Sun Quest's favor regarding the LAPD flights, but not for the reasons cited by the ALJ. Instead, this decision holds that the FAA failed to prove that the flights were "other 

### commercial flying" that Sun Quest was required to record under Section 135.63(a)( 4)(vii) because the FAA failed to prove that the LAPD paid Smith for the flights. As for the sanction, given that the FAA argues only thatthe sanction should be increased to $20,000 ifthis decision is in its favor (Appeal Briefat 27), which it is not, the civil penalty will remain as assessed bythe ALJ, at $5,000.

3

### II. Facts The facts relevantto this appeal are as follows.' During all relevant times, Sun Quest held an air carrier certificate and operatedunder 14 C.F.R. Part 135. (Stip.**~** 

### 2.) Smith was the President, ChiefPilot, Check Pilot, and Line Captain for Sun Quest. (Amended Complaint & 

### Amended**Answer~** 

### II, § 4.) Sun Quest used Smith as a pilot in operations under Part !35. 

### (Id.) There is no disagreement that Smith also served as a police officer for the LAPD. 

### (See Exhibit A to the FAA's "Trial BriefBased on Stipulated Statement ofFacts." Exhibit A is a letter dated May 5, 2005, from the LAPD ChiefofPolice, stating that he
was responding to the request ofSun Quest's Principal Operations Inspector (POI) for 

### "Officer" Smith's flight records for theLAPD. 

### See also Amended Complaint & 

### Amended**Answer~** 

### II, § 4, both stating that Smith was a police officer for the LAPD.) Smith's work for the LAPD involved piloting a police helicopter owned and operated by the LAPD. (Stip.**~** 

### 24.) During February 2005, Smith served as a police officer pilot for the LAPD on 17 dates, with a total flight time for the month of50.4 hours. (Stip.**~** 

### 24, which incorporates Amended**Complaint~** 

### II, § 12.) Sun Quest's Part !35 flight and duty time records for Smith did not reflect any ofthis pilot flight time for the LAPD. (Stip.**~** 

### 23.) The LAPD had operational control over the initiating, conducting, and terminating ofall flights in its helicopters. (Stip.**~** 

### 26.)

8 The parties agreed, with the ALJ's approval, to file ajoint stipulation and then to submit briefs in which they argued their respective positions. 4

### III. Arguments on Appeal A. The FAA's Arguments The FAA's arguments on appeal include the following. 1. The ALJ erred in finding that the FAA does.not have anyjurisdiction over public aircraft operations. (Appeal Briefat 6.) 2. The ALJ erred in finding that the LAPD aircraft were public aircraft, because there was no evidence that the LAPD flights were public aircraft operations. (!d. 

### at 7.) 3. Under the FAA's interpretation ofthe term "other commercial flying," flying in a public aircraft may be "other commercial flying" within the meaning of 14 C.P.R.§ 135.267 ifthepilot was paid for the flying. 

### (Id. at 23.) 4. Amendments to the statutory definition of"public aircraft" do notjustify changing the FAA's interpretation ofthe term "other commercial flying" to exclude all public flying (as opposed to excluding only military aircraft operations.) 5. Sun Quest's argument that it only had to track other commercial flying that it assigned fails because this argument is based onFAA legal interpretations invo,lving restrequirements rather than flight time limitations. B. 

### Sun Quest's Arguments Sun Quest's counterarguments include the following. 1. The LAPD flights involved public aircraft, and the Federal Aviation Act, as amended, gives the FAA the authority to regulate public aircraft regarding airspace, 

### but not to regulate public aircraft when airspace is not at issue, as inthe instant case. 2. Under FAA legal interpretations, the LAPD flying was not "other commercial flying" for purposes ofSun Quest's recordkeeping because Sun Quest 

### did not assign the flying: 3. The FAA's interpretation of"other commercial flying," which excludes only military flying, a subset ofpublic aircraft flying, is incorrect because the statute exempts all 

### public aircraft from FAA regulation, except for airspace regulation.

54. The FAA did not produce any evidence that Smithreceived any compensation for the LAPD flights. 

### IV. 

### Discussion The FAA is correctthat it hasjurisdiction over some public aircraft operations.' Regardless, the FAA's appeal must be denied because the FAA failed to prove that Smith's flying for the LAPD constituted "other commercial flying" within the meaning of 14 C.P.R.§ 135.267. Hence, the FAA did not prove that Sun Quest violated Section 135.63(a)(4)(vii), as alleged, by failing to record Smith's flight time for LAPD as "other commercial flying." The FAA's own longstanding interpretation, which there is no reason to disturb, 10 is that'"[ o]ther commercial flying' means any nonmilitary flying as a required

9 For example, the Federal aviation statute provides:· "[T]he FAA Administrator shall
... assign by regulation or orderthe use ofthe airspace necessary to ensure the safety ofaircraft ["aircraft" includes both civil andpublic aircraft]
...." 49 U.S.C. § 40103(b)(l). See also U.S. v. Christensen, 419 F.2d 1401, 1402 (9 1 h Cir. 1969), finding that FAA regulations requiring "aircraft"to comply with air traffic control instructions apply to "public aircraft." Further, 49 U.S.C. § 44701 provides that the FAA Administrator shall promote safe flight ofcivil aircraft in air commerce. Insofar as public aircraft operations may adversely affect the safety ofcivil aircraft, the FAA may regulate them under circumstances that will not be delineated here. Regardless, Sections 135.63(a)(4)(vii) and 135.267(b) and (c)(2), do not regulate public aircraft operations, but instead regulate civil aircraft operations. The FAA's case was against Sun Quest, a civil operator. Hence, the FAA was not seeking to regulate public aircraft or an operator ofpublic aircraft. Consequently, there is no need to address the issue whether Sun Quest proved that Smith's flights for the LAPD constituted public aircraft flights.
10 The Administrator permitted the parties to submit additional briefs (both initial and reply briefs) on whether the longstanding FAA interpretation ofthe term "other commercial flying" (as stated above, any nonmilitary flying, as a required crewmember, other than in air transportation, for which the crewmember is paid for his or her services) had changed or should be changed, given statutory changes in the definition of"public aircraft." Sun Quest, FAA Order No. 2011-1 at 2 (January 5, 2011). Specifically, the Administrator inquired whether the definition of"other commercial flying" should be changed to exclude anypublic aircraft flying, rather than excluding only military aircraft flying, which is a subsetofpublic aircraft flying. In its additional brief, the FAA asserts that no statutory changesjustifY a change in the definition of "other commercial flying." The FAA points outthatthe legislative history shows that in the past, Congress has treated military flying differently than non-military public aircraft for purposes of flight time limitations because military flying is essential to the national defense. Sun Quest does not point to any statutory changes thatjustifY a change in the definition of"other commercial flying."


### 6crewmember, otherthan in air transportation, for whichthe crewmember is paid for his or her services."'' Letter from Assistant ChiefCounsel for Regulations to Richard Martinelli, 2009 WL 737336 (March II, 2009); Letter from Assistant Chief Counsel for Regulations to Ryan Koepp, 2008 WL 3200870 (March 6, 2008); Letter from Assistant ChiefCounsel for Regulations to James W. Johnson, 2003 WL 25427850 (May 9, 2003); Letter from Assistant ChiefCounsel for Regulations to JeffJ. Jacober (June 24, 1991); and Letter from Assistant ChiefCounsel for Regulations to Manager, NE-FSD0-03 (October 31, 1990). The FAA failed to prove the element ofcompensation-specifically, thatthe LAPD paid Smith for his LAPD flying. Although the ALJ found that "Smith was a required crewmember andreceived payment" (Initial Decision at 6), there was no stipulation or admission that Smith was compensated for his work with the LAPD. As
11 Sun Quest argues for an additional element of"other commercial flying" -thatthe flying be assigned by the certificate holder. However, the numerous FAA interpretations defining "other commercial flying" do not include "flying for the same employer" as part ofthe definition. Also, as the FAA points out, FAA interpretations indicate that flying performed for other employers can in fact be "other commercial flying." For example, one interpretation states that the following types offlying, at least some ofwhich would be for other employers, would count as "other commercial flying"- executive pilot services, aer.ial application, sight-seeing flights, carriage ofparachutists, banner and glider towing, game survey, power and pipeline patrol. Letter from Chief, Air Carrier and General Operating Branch, AGC-22, to AFS-200 n.9, 1975 WL 342744 (August I, 1975). Sun Quest quotes from the following interpretation: The rule regarding "other commercial flying" is that it may not be conducted during required rest periods, 

### ifit is assignedby the certificate holder. Specifically, the prohibition against "other commercial flying" during the required rest period applies to situations where the certificate holder requires the flying. Letter from Acting Assistant ChiefCounsel, Regulations and Enforcement, to Manager, FAA Lincoln Flight Standards DistrictOffice, 1989 WL 1631930 (August 9, 1989). (Emphasis added by Sun Quest.) The cited portion ofthe interpretation is not on point- it deals only with whether "other commercial flying" may be performed during a rest period, which is not the issue here. Moreover, as this interpretation makes clear, "other commercial flying" that precedes Part 135 flying, regardless ofwhether it was assigned by another certificate holder, must be counted against the daily flight time limitations.



### 7

### Sun Quest points out, Smith's work for the LAPD mayhave been on a volunteer basis, like that ofvolunteer firefighters. 12 

### The FAA simply did not bear its burden ofproving compensation to the pilot, an element of"other commercial flying." In conclusion, the FAA failed to showthat Smith's LAPD flying met all the elements of"other commercial flying." Consequently, the FAA failed to show that Sun Quest violated 14 C.F.R. § 135.63(a)(4)(vii), as alleged, regarding Smith's flights for the LAPD. The FAA's appeal is denied." 

## • 

# #**~t;** ... 

# u**~** RANDOLPH BABBITT ADMINISTRATOR >



### Federal Aviation Administration

12 Judicial notice is taken ofthe LAPD Web site, which indicates that the LAPD does in fact use volunteer police officers: The Los Angeles Police Reserve Corps is comprised ofcommunity members who volunteertheir time to fulfill many ofthe roles handled by full-time sworn police officers. Reserve officers receive the same training as full-time officers and work alongside them in every aspect ofDepartment operations. http://www.lapdonline.org/join the team/content basic view/542
13 Underthe circumstances, there is no need to address any ofthe other issues raised by the parties on appeal.


### 8

# •.
SERVED JANUARY26, 2010
uNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

.WASHINGTON, D.C. ) FEDERAL AVIATION ADMINISTRATION, ) ) •• ,,**~"1**

Complainant, ) FAA DOCKET No. CP08WP0004 ) v. ) (Civil Penalty Action) ) SUN QUEST EXECUTIVE AIR CHARTER, INC. ) ) Respondent. ) DMS No. FAA-2008-0238

## --------------------~----) INITIAL DECISION ·oFADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN Found: 1) Respondent violated 14 CFR §135.63(a)(4)(vii) on two counts; and 2) Respondentis assessed a civil penalty of$5,000. 

### I. Background Flight and duty times for. pilots operatingunder Part 135 ofthe Federal Aviation RegUlations ("FARs") are circumscribed. Section 1S5.267{b), 14 C.F.R. 

### §)35.267(b), generally limits one-pilot flight crews during any 24 consecutive hours to 8
· hours oftotal flight time "when added to any other commercial flying by thatflight

crewmember"; for flight crews oftwo pilots, the regulation caps flight time at !0 hours oftotal flight time (including "othercommercial flying''). Respondent Sun Quest Executive Air Charter, Inc. ("Respondent" or "Sun Quest") is an. air carrier certificated under Part 135. Certificate holders are required to keep records ofpilots' flight time in sufficient detail to determine compliancewith the described limitations. The issue inthis case is whether Sun Quest did so. · This matter originated in a records inspection 'carried out by agency inspectors on March 18, 2005. The inspectors noted several discrepancies in Respondent's · records. The Complaint ofthe Federal Aviation Administration ("FAA," "Complainant," or "the agency") followed.

. The Complaint, as amended, asserts that Sun Quest violated 14 C.F.R. 

### §1.'!5.6S{a)(4)(vii). This FARrequires certificate holders to "make.available for t.**~) ~)**  ; . /_ .J2 inspection by the Administrator
... [t]hepilot's flight time in sufficient detail to determine compliance with the flight time limitations ofthis part." Complainant charges four violations ofthis FAR. The agency asks for a total civil penalty until49 U.S.C. §46Sill(a)(2) of$25,000. Charge one is thatRespondent's pilot records· themselves are not sufficiently "' detailed to determine compliance with relevantlimitations oil flight time. Charges two and three assert that Sun Quest President and chiefpilot Mark Smith failed to comply with flight and duty time limitations in providing (a) flight training on January 24, 2005 (charge two), and (b) a check ride on March 9, 2005 (charge three). The fourth charge alleges that Sun Quest records failed to reflect Captain Smith's flight time for the Los Angeles Police Department ("LAPD"). Because Smith's piloting for the LAPD constitutes "other commercial flying''.under §135.267(b) accordingto the Complaint, Sun Quest should have tracked it. Respondent denied the charges. Itcontends that no discrepancies were noted or in fact existed (Stip.**~** 11). The parties met for hearingon January**~6,** 2009. Since nearly all the facts ofthe case were undisputed (Tr. 4), the parties agreed, with the Court's approval, to file ajoint stipulation and then to submit briefs arguing their respective positions. The stipulations and briefs have now been filed and the case is ready for decision.' The agency has the burden ofproof.· Toprevail itmust prove its case by a preponderance ofthe reliable, probative, and substantial evidence (14 C.F.R. §13.223). 

### II. Discussion A. The Nature ofRespondent's Pilot LogsViolates the Regulation Sun Questrecords its flight time and duty time records for its pilots in a document itcalls "Duty and FlightTimeLog Sheet" ("Log Sheet"). 

### See, 

### e.g., Compl. Br., Exh B. The document has column entries for duty beginning time (called "Time On Duty"), duty end time ("Time OffDuty"), total duty time, and total flight time ("Flight Time").
. Flight time limitations are calculated on a rolling 24-hour basis (14 C.F.R. 

### §135.'267). The FAA determines compliance bycountingback 24 hours from the scheduled end ofa shift. So, for example, ifa pilot's shift is scheduled to end at 9:00 p.m. on September 2, and the pilot is limited under FAR§l.'l5.267(b) to 8 hours offlight time, that pilot.may not accumulate more than 8 hours offlight time between 9:00p.m.
1Complainant's briefs, entitled Complainant's Trial BriefBased on Stipulated StatementofFacts, Complainant's Reply to Respondent's Trial Brief, and Complainant's Supplemental Brief, wiJI be referred to as "Compl. Br.," "Compl. Reply," and "Compl. Suppl.," respectively; Respondent's briefs, entitled Respondent's Brief, Respondent's Reply Brief, and Respondent's.Supplemental Brief, will be referred to as "Resp. Br.," "Resp.**Reply,~'** and "Resp. Suppl." respectively. (The supplementalbriefs were filed atthe behest ofthe Court byOrder served September I, 2009). Citations to**Stipulate<~** Facts will be noted as "Stip." followed by the p!!fagraph number. ·



# -···,

### .. 3 September 1 (counting back 24 hours from the scheduled end ofthe shift) and 9:00p.m. September 2 (the scheduled end ofthe shift). Sun Quest's Log Sheet does not record when flight time (as opposed to duty time) begins and ends. Itis COmplainant's contention that because ofthis omission, Respondent's records are insufficient to determine compliance with flight time**-~** limitations, thus making out the alleged violation of§136.63(a)(4)(vii). I find the violation. Complainant has shown that Sun Quest's records for its pilots do not provide the information necessary to determine compliance with the FAR's limitations on flight time. · In failing to record the time a flightbegins and ends, the LogSheet does not enable a determination ofwhether regulatory standards have been met. Ifa pilot operates for six consecutive hours on two consecutive days, for

### exampi~. til'e. data Sun Questenters permit a conclusion thatthe pilot gained sufficient rest, thereby complying withtheregulations- butthe data, orlack ofit, also permit the oppositeconclusion. Sun Quest's failure to record the times thatthe flights begin and end make itimpossible to know which. ·

days. The following example illustrates why: Scenario One: September 1 12-hour shift, 10:00 a.m.-10:00 p.m.

. 6-hour flight, 10:30 a.m.-4:30 p.m. September 2·

Scenario Two: 12-hour shift, 10:00 a.m.-10:00 p.m. 6-hour flight, 3:30 p.m.-9:30p.m. September 1 12-hour shift, 10:00 a.m.-10:00 p.m.

6-hour flight, IJ:SO p.m.-9:80p.m September 2 12-hour shift, 10:00 a.m.-10:00p.m.

6-hour flight, 10:80 a.m.-4:80p.m. The scenarios span identical duty times, 10:00 a.m. to 10:00 p.m. on consecutive
. Scenario One is legal -thepilot has flown the aircraft within limits, 6 hours in a ·4**24~hour** 

### period. 2 

### But Scenario Two is not. In Scenario Two, the pilot has flown 11 hours
· in a 24-hourperiod.' That situation constitutes a violation of§135.267. The pointis that Sun Quest'srecords do not enable arecords examiner to detennine which scenario has occurred. Respondent's failure to document when a**pilo(~** 

### flight time begins and ends.is inadequate to the task. The expresspurpose of §

### 135.63(a)(4)(vii)- to set outthe pilot's flight time "in sufficientdetail to detennine compliance with the flight time limitations ofthis part" -isnot fulfilled. Sun Quest's · pilotrecords thus fall shortofcompliance. Respondentcounters that itsLog Sheet "doesnotstandalone." The FAA inspector shouldhave compared itwith Sun Quest's flight manifest, the carrier states (Resp. Suppl. Br., p. 2). This argument is rejected. A fonn entitled "Duty and Flight Time Log Sheet" is self-evidently intended to address duty and flight time. "An FAA representative, therefore, should look to such a document to 

### ascertain ifflight-time limitations have beenrespected-- and need lookno further. The document's title plainly indicates its intended function. It

### points to only one souree for duty and flight time dataitself. An inspector is under no duty in such circumstances to search elsewhere. Moreover, the regulations contemplate that inspectors be able to draw conclusions "readily."

### SouthAero, FAA OrderNo. 96-4 (February 13, 1996), pp. 8, 10. Butplacing a duty on inspectors to rummage for other documents, as Respondent apparently would, does notin any sense suggest "readily." It wouldplace on the agency aburden not warranted by the sense oftheregulations. · Theagency wasjustified inbasing its detennination that the pertinent regulation had been violated on Sun Quest's Duty and FlightTime Log Sheet. 

### B. OtherFlying · 1. FlightTrainingand CheckRide 

### On January 24, 2005, Mark Smith ofSun Questprovided 1.3 hours offlight tr;rining to a company pilot. On March 9, 2005, Captain Smith gave a oompany pilot a check ride lasting 1.5 hours. Theseactions were included in Smith's duty time records but notinhis flight time records (Stips. mJ12, 13, 17, 22). Complainantcontends that Sun Quest should have recorded these flights as flight time under the category of"other commercial flying." Respondent demurs.

2

- • .

For instance, between 10:00 a.m. on September I and 10:00 a.m. on September2, a 24-hourperiod, the pilot has flown 6hours (10:30 a.m. September 1to 4:30p.m. September 1); orbetween 10:00 p.m. · September I and I0:00 p.m. September2, likewise a24-hourperiod, the pilot also has flown 6hours {3:30 p.m. September 2to 9:30p.m. September2). · .

Between 3:30p.m. on September 1and 3:30p.m. on September2, a24-hourperiod, the pilothas flown from 3:30 p;m. to 9:30p.m. on September I (6 hours) plus between 10:30 a.m. and 3:30p.m. on September 2 (5 hours). See also Compl. Br., pp. 6-7, for anotherillustration oftwo scenarios which span identical duty times, but result in flight times on either side

## ofthe law. ·5 

### In supportofitsposition,the FAAarguesthat the January 24 training flight lists Captain Smith as the check airman. He also was acting as the pilot-in-command ("PIC"). ·Regarding the check ride ofMarch 9, Complainant argues that Respondentrecords show Smith as the assigned captain. Additionally, during at leastpartofthe checkride, Smith · would have been the sole pilot observing traffic because the trainee would have been**~** 

### "underthe hood" (that is, using avision-restricting device). As 

### such, Smith would have been arequired crewmember. Finally, Complainant notes that Captain Smith was paid for these tasks. In sum, because Smith was apaid, andrequired, crewmember, Complainant states, these flights mustbe considered "othercommercial flying" ooder FAR §

### 135.267. Both the training flight ofJanuary 24 and the checkride ofMarch 9 should have been added to Smith's assigned flight time in calculating his flight time limitations. Because Sun Quest did not do so, the company stands in violation ofthe regulation (Compl. Br., pp. 8-9; Compl. Reply, pp. 1-2). Respondent counters that the January 24 flight was ln

### an aircraft certified for single-pilot operation. Captain Smith could not 

### be the pilot-in-command ofa single pilot flight, nor could he record the flight as such, Sun Questcontends. The trainee could have logged the flight as PIC. Nor could Smithhave loggedthe flight as a second-incommand

-- not on a flight with one pilot. He was a check airman. Sun Questconcludes, contrary to Complainant, that Smith was not arequired crewmember under Part91 (under whichthe training tookplace). As to the March 9checkride, the aircraftused also was certificated for single pilot flight. As in the January 24 flight, Smith could nothave logged his service as second-in-command in a onecperson crew. He was a check airman onthis flight too, Sun Questcontends. The cheqk airman's function is to oversee the operation ofthe pilot; he is notamember ofthecrew (Resp. Br.,pp. 2-3; Resp. Reply,**~~·** . . 

# . I find and conclude thatthe January 24training flight cannot be considered "other commercial flying" under §135.267. The March 9 checkride, on the otherhand, mustbe considered "other commercial flying" and should have been countedtoward flight time. On the January 24 flight, Sun Quest's flight training record shows that Captain Smith served as check airman (Compl. Br., Ex.h. C). He did not fly the aircraft. Since the trainee-pilot did notwear

## aview-limiting device, Smith was never required to assume any responsibilities ofa sole pilot. As such, he was notarequired crewmember. While the flight training record lists the trainee as "SIC" (second-in-command), Smith did not thereby assume the tole ofPIC. In sum, Captain Smith did not act as a crewmember with responsibility for the safe operation ofthe aircraft. The critical concerns underlying the ideathat flight time must be recorded

- promotion ofsafety in airtransportation by reducing pilot fatigue (SouthAero, 

### FAA OrderNo. 96-4 (February 13, 1996), p. 7)

-- . were notinthis instance directly or substantially implicated. I conclude for these reasons6 

### that Smith's actions in giving a company pilot flight training on January 24, 2009 counts as duty time but !JOt as flight time.4 · 

### The circumstances ofthe March 9 checkride lead to the opposite i:onclusion. A key difference is that Captain Stnith onthis flight was arequired crewmember. He was..,. the assigned captain (Compl. Br., Exh. D). Anothercritical factor is that check rides

.require the trainee pilotto have vision-restricting devices in place. Smith would have had to observe traffic while the trainee was ''underthe hood." Smith thus attained.the status ofa required crewrnember (Compl. Br., pp. 8-9). Captain Smith was compensated for serving as a crewmember. The checkride should have been logged as flighttime. 2. L.A.P.D. Flyitig 

### During February of2005, Captain Smith served as apilotfor the Los·Angeles PoliceDepartment. He piloted ahelicopter owned and operated by the LAPD on 14 occasions for atotal flight time of50.4 hours (Compl. Br., Exh. A; Stip.,**~24).** 

### Srnith's duty and flight time records for SunQuestdid notreflectanyofthis activity (Stip.,**~23).** 

### Complainant argues that Captain Smith's LAPD flying constituted "other
· commercial flying" which should have been recorded by Sun Quest for the purpose of

calculatinghis flight time limitations. Smith was arequired crewrnember and received payrnent. ·Since Respondent did not record Smith's LAPD operations, its records were "deficient,'' the agency contends. This omission constitutes another violation of §135.63(a)(4)(vii) (Compl. Br., p. 9; Compl. Reply, p. 2). Respondent counters that Smith's flying was performed ail 

### apolice.officer. The LAPD-owned and-operated helicopter was properly considered a "public aircraft" exempt from the agency's reach.' I conclude that Complainanthas failed to prove a violation. I fi11!l that the helicopter was a statutory "public aircraft," and, as such, is not subjectto FAAjurisdiction. The governing statute defines a ''public aircraft" as an · aircraftused exclusively for the service ofany government which is not carrying persons orproperty for commercial puqioses. 49 U.S.C. §40102 (a)(4l)(D). The helicopter pilotedby Captain Smith was owned arid operatedby the LAPD, a governmental unit. There is no evidence that itperformed any activities otherthan policework. The plain words ofthe statute compel me to conclude thatunder.these circumstances the helicopter mustbe considered a "public aircraft." The agency does nothavejurisdiction over public aircraft. 49 U.S.C. §40102; 

### U.S. 

### v. Aero Spacelines, Inc. 361 F.2d 916,921 (91 h 

### Cir. 1966). Respondent mustprevail on this issue. 6

·4That Smith was compensated is not determinative. He was not compensated for serving as a crewmember. See.genera/(y FAA Legal Interpretation 1990·21 (August 9, 1990), 1990 WL 10519417. 5 Resp. Br., pp. 7-8. Respondent's Brief, ]l. 4, states that "[i]t has been stipulated thatthe helicopterwhich Mark Smith flew for the L.A.P.D. was a 'public aircraft."' This is not correct. Stipulation**~25** reads "Legal determination will have to be made as to whetherthe helicopterin question was a "public ai;craft" within the meaning of[the statute]." · . 6 Complainant contends that a finding for Respondent, by allowing pilots to add flight hours within a . defined period, would undermine the safety concerns undergirding the regulatory limitations on flight time 

# ..



# .

# .. 7



### All arguments have been considered. Those not explicitly addressed in this Initial Decision are denied as without merit. Further, Respondent's request for oral argument (Resp. Suppl. Br., p. 1) is denied. III. Penalty 

### I will assess against Respondent acivil penalty of$5,000. An 

### appropriate civil penalty must reflectthe totality ofthe circumstances surrounding

### theviolations. 

### EasternAir 

### Center, Inc., FAA OrderNo.2008-3 (January 28, 2008)). The penalty should provide sufficientincentive to deterthe respondent and similarly-situated entities from future violations. 

### Folsom'sAirService, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 12. · · · The rules limiting the hours pilots may operate aircraft serve critical safety purposes. They ensure thatpilots gain sufficient rest andminimizethe risk ofpilot fatigue. The safety implications ofinadequate rest are well-known. Pilotfatigue can have catastrophic results. 

### See SouthAero, FAA 6rderNo. 96-4 (February 13, 1996), p, 

### 7. The FAA's mandate to insure safety would ring hollow without a concomitant ability to monitor limitations Compliance through examination of:flight and duty time records. 

### PremierJets, Inc., FAA OrderNo. 99-7 (August 31, 1999); p. 5. The FARs requirethat flight and duty time records be sufficiently detailed to enablea 

### determination ofcompliance. Sun Quest'spilotrecords fell short ofthat standard The agency's mandate to insure safety in the air was thereby compromised. The risk thatpilots would operate aircraft without sufficientrest was unacceptably increased as a result. Respondent's failure to count a checkride toward restrictions on pilottime also was 

### in derogation orthe agency's duty to promote safety. Sun Quest's practices merit a significant assessment. Yet it also mustbe recognized that Respondent's forms for logging pilot flight time were accepted for years by FAA inspectors assigned to supervise the carrier's practices. They were incorporated into Sun Quest's.Operations Manual (Stip., '1[8). This circumstance does not allow Respondent to 

### escape liability;7

### butitmustbe considered as '
. . (Compl. Br., p. I0; Compl. Reply, p. 3). This is essentially apolicy argument. Itcannottrump the Clear meaning ofthe statute. Moreover, an air carrier which permits, or apilot who undertakes, any flying under conditions which may endangerothers risks a violation of14 C.F.R. §91.13. Thatprovision warns that aircraftmay not operate**'~n** .a careless orreckless manner so as to endangerthe life or properly ofanother." See FAA Legal Interpretation 1989-23, 1989 WL 1631930 (August9, 1989). · 7This argument amounts to aclaim ofan equitable estoppel. Estoppel against a government will not lie, at least absent a showing ofaffirmative misconduct by a government representative. See, e.g., Siu de Puerto Rii:o, Car/beYLatinoAmerica v. Virgin IslandPortAuthortty, 42 F.Jd 801, 803 (3"' Cir. 1994). No showing ofsuch conduct was made here.

It should be noted that our sisteragency the National Transportation Safety Board whose decisions are persuasive, has statedthat estoppel will never lie where the public interest and**safe~** in air commerce and transportation are implicated. RonaldG. Fisher, EA-2986, 6NTSB 1292, 1294 (1989), ajf'dsub. nom.8

a mitigating factor-in the determination ofpenalty. The fact that Respondent's recordkeepingpractices passed muster several times understandably couldhave suggested to itthatthese practices were acceptable and consistent with applicable FARs. Againstthis background, Sun Questhad no evident reason to changethemto conformto whatthe agencydeems acceptabletoday. · .• I conclude that a civil penalty of$5,000 is appropriate. Itis commensurate with the nature and contextofthe·violations while appropriately promotingthe agency's policies ofcompliance and deterrence. It suitably accounts for the totalityofthe · circUmstances ofth\s case. · SunQuestExecutiveAirCharter, Inc. ishereby assessed a civilpenalty of$5,000 for two violations ofFAR 

### § 14 C.F.R. 

### §l35.63(a)( 4)(vii), as discussed herein.' ·

Attachment

- service list

# -~

# ;~~~ • Administrative Law Judge

Fisherv. Department of Transportation; 917 F;2d 27 (9 Cir. 1990); ErikMilton Poole, EA-4425, 1996 NTSB Lexis II (February 7, 1996). · . · 'Thisdecision may be appealedto the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.21l(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeal I) be filed not later than I0 days (plus an additional' five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written brieformemorandum not laterthan 50 days (plus an additional five, if mailed) from the service date ofthis decision. The notice ofappeal and brieformemorandum must either be a) mailed to the Federal Aviation**Admini~tion,** 800 Independence Avenue, S.W., Washington, DC 20591, Attn: Headhg Docket Clerk, AGC-430, Wilbur Wrigbt Building-Suite 2WIOOO, orb) delivered personally or via expedited courier service to the Federal Aviation Administration, 600 Independence Avenue; S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, D.C. 20591, Attn: Hearing Docket .Clerk, AGC-430. Acopy ofthe notice ofappeal and brieformemorandum also mustbe sent to agency counsel. Service upon the presidingjudge is optional. 1,