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UNITED SI ATES DEPARTMENT OF TRANSPORTATT<||Ji^-|r'%£^^ 

FEDERAL AVIATION ADMINISTRATION ^ ^ * ^ W C I V jt 

Federal Aviation Administration, 

Complainant, 

V. 

Sun Quest Executive Air Charter, Inc. 

Respondent. 

HEmmo DOCK 

5 2611 

FAA Docket No CPO8WP0004 

(Civil Penalty Action) 

DMS No. FAA-2008-0238 

Complainant's Reply Brief in Response to Respondent's 

Memorandum, dated March 3, 2011 

Pursuant to the Order Requesting Further Briefing, served on January 5, 

2011, and the subsequent Order extending the due date for such briefing. 

Complainant submits this reply to Respondent's March 3,2011 Memorandum. 

Issues 

I. Whether Respondent's Memorandum is inconsistent with what it 

previously argued? 

II. Whether the Part 135 requirement to count "other commercial flying" 

only applies to the "other commercial flying" that the part 135 

operator assigns to the pilot or whether it applies to all other 

comumercial flying that the pilot accumulates, including other 

commercial flying the pilot accumulates for other employers'? 

III. Whether the purpose for counting "other commercial flying," 

including public aircraft flying done for the same employer or for 

different employers, toward flight time limitations imposed on Part 

135 operators like the Respondent, is in furtherance of the safety of 

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the "public aircraft" flights or in furtherance of the anti-fatigue goals 

of the part 135 flight time limitations applicable to part 135 flights? 

Argument 

I. Respondent has raised defenses that he failed to previously raise and 

that are outside the scope of the Order Requesting Further Briefing. 

The Order Requesting Further Briefing was focused on: whether the 

definition of "other commercial flying" should or should not including military 

flying; whether the definition of "other commercial flying" should now exclude 

some or all "public aircraft" flying; and whether there was anything in historical 

documents that would explain why the FAA excepted "military flying" from "other 

commercial flying." 

The Respondent argues, among other things, that the only "other commercial 

flying" that a part 135 operator is required to track is the other commercial flying 

that the part 135 operator itself has assigned. See Respondent's March 3, 2011 

Memorandum at pages 5-8,^ The Respondent argues that the Administrator ought 

to limit the applicability of the "flight time limitations" to only that flight time 

assigned by the part 135 operator. The Respondent urges the Administrator to treat 

the flight time limits the same way that the agency treats rest requirements, 

' In his March 3 Memorandum at 7-8, Respondent references somcihing published on Av Web. Perhaps it is tlie 

notice published in ihe Federal Register addressing public aircraft operations. See 76 Fed. Reg. 16349 (March 23, 

2011). Aside from the subject matter, Respondent has not articulated any reason tor its reference. Tn any event, it 

does not alter either party's argument. 
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It is true that the part 121 and part 135 "rest requirements" place limitations 

on the part 121/135 employer and do not require that employer to consider as 

"non-rest" any flying or any other activity that a pilot might be engaged in during a 

"rest period," But the rest requirement imposed on the air carrier employer is just 

part of a scheme, which includes the flight time limitations and the requirement to 

count "other coiTunercial flying," that is intended to protect those who pay air 

carriers from fatigued pilots. The rest rules protect against abuses by a part 121 or 

part 135 employer that has the leverage to interfere with a pilot's opportunity to 

plan for sleep during a rest period. 

Moreover, Respondent's theory that a pilot and an air carrier need not count 

as "other commercial flying" any flying the pilot does for other employers is 

inconsistent with Respondent's focus earlier in this case on his unsubstantiated 

claim that all of his LAPD flying was "public aircraft" flying; his assertion that the 

FAA does not have jurisdiction to regulate "public aircraft" flying; and his 

argument that all public aircraft flying does not count as "other commercial 

Hying." [f that had been his argument from the start, the focus of the briefs would 

have been on whether the FAA expects air carrier pilots to tell their air carrier 

" As the Complainant pointed out in its Supplemental Brief, some part 121/135 private sector operators sometimes 

engage, by contract, in public aircraA. flying for a Governmental entity and sometimes some Governmental cnlitics 

engage in both public aircraft flying and part 121/135 flying. As Complainant pointed out in its Supplemental Brief 

some may well argue that should the Decisionmaker in this litigation or as a result oFAPA notice-and-comment 

rulemaking make more or all "public aircraft flying" not count as "other commercial flying," then some employers 

might engage in the dangerous pnietiee of having its pilots conduct "'public aircraft" contract operation.s in the 

morning and then assigning those same pilots to air carrier flights in the afternoon, without counting any of the 

"public aircraft" flight time as "other commercial flying." 
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employers that they are moonlighting — as pilots — for other employers, 

including other air carriers, or corporate flight departments, or any other employer 

that uses the paid services of a pilot, In fact, had that been Respondent's argument 

from the beginning, then presumably he would have conceded that any paid flying 

for an air carrier by a pilot, even if some of that paid flying was for the air carrier 

when it conducts — by contract to a Governmental entity — public aircraft flying, 

would count as other commercial flying. 

II. The part 135 requirement to count "other commercial flying" applies 

to both the "other conmicrcial flying" that the part 135 operator 

assigns to the pilot aiid all other commercial flying that the pilot 

accumulates, including other commercial flying the pilot accumulates 

for other employers (other than military flying). 

Respondent's new argument that "other commercial flying" applies only to 

flying for the same air carrier is belied by longstanding agency interpretations. 

Respondent's citation of interpretations that deal with "other commercial flying" in 

the context of the same employer do not support his claim that "other commercial 

flying" is so limited and that Complainant's position in this case is an "attempt 'for 

the camel to put its nose in the tent'." Respondent's Memorandum at 2. 

The FAA has interpreted "other commercial flying" to include flights that 

the pilot conducts for other employers and for which the pilot received 

remuneration. See, e.g., Interpretation 1975-42 wherein 11 kinds of compensation-
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or-hire flights are enumerated (none of which are governed by parts 121 or 135). 

For example, that Interpretation lists executive pilot services, aircrafl. flight 

demonstrations, game survey, pipeline patrol, and photography flights as the kinds 

of flights that will be considered "other commercial flying." 

Another FAA interpretation also makes it clear that "other commercial 

flying" includes flying that a pilot does for a corporate flight department and that 

"other commercial flying" is not just limited to the part 91 flying that a pilot does 

for his or her air carrier employer. In Interpretation 2003-8 (footnote 9), FAA 

Assistant Chief Counsel Donald P, Byrne, stated: 

"So for example, when an individual is paid ... for flying corporate officers 

on a corporate jet in Part 91 service or when an airman provides flight 

training for compensation to another, such Part 91 flying is "other 

commercial flying" for the corporate jet pilot and for the flight instructor. 

Also, to the extent that the pilot operates an aircraft, for example, under 

Parts 125, 133 or 137 and receives remuneration for his pilot services, such 

flight time is "other commercial flying." Additionally, to the extent that a 

pilot receives remuneration from the certificate holder [i.e., the part 119 

certificate holder] for part 91 ferry flights or test flights, such flight time is 

"other commercial flying." 

Interpretation 2003 also quoted from the October 31,1990 interpretation 

(Interpretation 1990-32) ("other commercial flying means any nomnilitary flying 

as a required crewmcmber, other than in air transportation, for which the 

crewmember is paid for his or her services.") 
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In sum, the 1975, 1990, and 2003 interpretations cited above put to rest the 

Respondent's claim about the state of the FAA's interpretation of "other 

commercial flying" as applying only to flying done for the same employer. 

III. The part 135 requirement to count "other commercial flying" applies 

to the "other commercial flying" that the part 135 operator assigns to 

the pilot and it applies to all other commercial flying that the pilot 

accumulates, including other commercial flying the pilot accumulates 

for other employers, other than military flying. The purpose of the 

requirement is to promote the safety of part 121 and part 135 

operations. 

Respondent reiterates his general contention that the FAA lacks authority to 

regulate public aircraft. Memorandum at 3. The requirement to count "other 

commercial flying" is not regulation of public aircraft operations. The requirement 

to count "other commercial flying," including public aircraft except military flying 

is not to protect public aircraft operations; it is to protect the part 121 and 135 

operations for which the operator is compensated, 

It is not a novel idea for the Government to require air carriers to look at 

what a pilot experienced at other current or former employers before making 

important decisions regarding the use of an individual as a pilot in air carrier 

operations. At issue in this case is the long-standing FAA "other commercial 

flying" rule, which has been interpreted and applied to require air carriers to count 

— toward the part 135 flight time limitations — those fatigue-inducing work 

activities of "other commercial flying" experienced by a pilot at nonair carrier 
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employers (other than military flying), at other air carrier employers and part 91 

flying for the air carrier employer itself. 

In another area of the law (i.e., the process that air carriers must follow when 

they consider using an individual as a pilot in air carrier operations), Federal statue 

requires an air carrier to seek records from the pilot's other employers. See 49 

U.S.C.A. §Section 44703(h) (commonly referred to as the Pilot Records 

Improvement Act, as amended). Air carriers that are considering the use of an 

individual's services as an air carrier pilot must first seek specified safety records 

of the pilot's other air carrier employers and "other persons (except a branch of the 

Armed Forces, the National Guard, or a reserve component of the Armed Forces)" 

49 U.S.C.A. § 44703(h)(1)(B). Notably, Congress specifically provided that a 

potential employer (air carrier) must seek records fi-om the pilot's other air carrier 

employers and "other person[s]" that employed tlie pilot as a pilot 

"... of a civil or public aircraft operation at any time during the 5-year 

preceding the date of the employment application of the f pilot]..." 

49 U.S.C-A. § 44703(h)(1)(B) (Emphasis added). 

That statutory provision, which requires an air carrier to obtain records of a 

current or former employer of a pilot, including records related to "public aircraft" 

operations, is not designed to protect or advance the safety of current or past public 

aircraft operations by the current or former employers. Instead, it is designed to 
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get important safety information about an individual's history as a pilot, including 

as a pilot in "public aircraft" operations, into the hands of the air carrier "before 

allowing [the] individual to begin service as a pilot.,." in the air carrier's part 121 

or 135 operations. Congress's intent was to improve the knowledge base of the air 

carrier potential-employer in order to protect or advance the safety of air carrier 

operations. That statutory provision, just like the FAA's interpretation of "other 

commercial flying," focuses the carrier on the pilot's activities with other 

employers but excludes the pilot's activities for the U.S. military. 

Likev/ise, the FAA's safety goal in requiring pilots to report other 

commercial flying (including public aircraft flying other than military flying) to an 

air carrier employer and requiring that the air carrier employer count that flight 

time toward the part 121 or part 135 flight time limitations is not to make public 

aircraft flying safer. Instead, it is to make the passengers and cargo flying in part 

121 or part 135 operations less likely to be exposed to dangerous levels of pilot 

fatigue, including fatigue that can arise fi'om other commercial flying. 

J^eph A. Conte 

'/Attorney for Complainant 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 
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800 Independence Avenue, SW 

Washington, DC 20591 

202 267 7381 
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10 

Certificate of Service 

T hereby certify that on this date I placed in the United States Mail, postage 

prepaid, the original of the attached document (Complainant's Reply Brief in 

Response to Respondent's Memorandum, dated March 3, 2011) and 2 copies, 

addressed to: 

Federal Aviation Administration, 

800 Independence Avenue, SW 

Washington DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building — Suite 2W1000 

And a copy sent by fax and by United States Mail, postage prepaid, a true copy 

addressed to 

Arthur Wasserman, Esq, 

Wasserman & Miller 

16380 Roscoc Blvd., Suite 120 

Van Nuys, CA 91406-1221 

Fax: 808 895 0675 

Dated: April 4, 2011 
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11 

Certificate of Service 

I hereby certify that on this date I placed in the United States Mail, postage 

prepaid, the original of the attached document (Complainant's Reply Brief in 

Response to Respondent's Memorandum, dated March 3, 2011) and 2 copies, 

addressed to: 

Federal Aviation Administration, 

800 Independence Avenue, SW 

Washington DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building — Suite 2W1000 

And a copy sent by United States Mail, postage prepaid, a true copy addressed to 

Arthur Wassemnan, Esq, 

Wasserman & Miller 

16380 Roscoe Blvd., Suite 120 

Van Nuys, CA 91406-1221 

Dated: April 4, 2011 

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