UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: SUN QUES T EXECUTIVE AIR CHARTER, INC. FAA Order No. 2011-1 Docket No. CP08WP0004 FDMS No. FAA-2008-0238 1 Served: January 5, 2011 ORDER REQUESTING FURTHER BRIEFING 2 For the reasons set forth below, this order gives the parties the opportunity to submit briefs on the issues described in this order. These briefs are limited to the specific issues set forth in this order. In its Complaint, the Federal Avia tion Administration (FAA) alleged, among other things, that Sun Quest Executive Air Char ter (Sun Quest) failed to record the flight time of Sun Quest Captain Mark Smith for th e Los Angeles Police Department (LAPD). In failing to record this flight time, the FAA alleged, Sun Quest violated 14 C.F.R. § 135.63(a)(4)(vii), which provides that each Part 135 certificate holder must keep an individual record of each pilot used in Pa rt 135 operations, including the pilot’s flight time in sufficient detail to determine compliance with the flight time limitations of Part 135. As the FAA has pointed out, 14 C.F.R. § 135.267 requires Part 135 certificate

1 Materials filed in the FAA Hearing Docket (ex cept for materials filed in security cases) are also available for viewing at the following Internet address: www.regulations.gov

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2 The Administrator’s civil penalty decisions, along with indexes of the decisions, the rules of practice, and other information, are availabl e on the Internet at the following address: www.faa.gov/about/office_org/headquarters_o ffices/agc/pol_adjudication/AGC400/ Civil_Penalty . 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.holders to track “other comm er cial flying.” The FAA allege s that Captain Smith’s flying for the LAPD was “other commercial flying.” Sun Quest’s defense was that the LAPD helicopter was a “public airc raft,” and as such, was beyond the FAA’s regulatory reach. Neither the statute nor the re gulations define the term “other commercial flying.” However, there are a number of legal interp retations issued by the Regulations Division of the Office of the FAA Chief Counsel, sta ting that “‘[o]ther commercial flying’ means any nonmilitary flying as a required crewmember , other than in air transportation, for which the crewmember is paid for his or he r services.” Letter from Assistant Chief Counsel for Regulations to Richard Martinelli (March 11, 2009), 2009 WL 737336; Letter from Assistant Chief Counsel for Re gulations to Ryan Koepp (March 6, 2008); Letter from Assistant Chief Counsel for Re gulations to Jeff J. Jacober (June 24, 1991); and Letter from Assistant Chief Counsel fo r Regulations to Manager, NE-FSDO-03 (October 31, 1990). These interpretations do not directly address the circumst ances of the instant case. It is also unclear whether the original interp retation setting forth the definition of “other commercial flying,” which is quite old and on which the other interpretations were based, still applies, given changes in the statute and regulations. In partic ular, the definition of “public aircraft” has changed over the years, and it is unclear whet her the definition of “other commercial flying” in the interpretations cited above takes into account changes in the definition of “public aircraft.” (The definition refers to “nonmilitary aircraft,” and military aircraft are a subset of public aircraft .) Further, the existing interpretation does not provide a rationale for exempting only m ilitary flying. For these reasons, briefs are requested on the issue of what should now be th e definition of “other commercial flying.”

23 Briefing Schedule The parties must file 3 their briefs on the above issu es no later than 30 days after the issuance of this order. Th e parties may file reply briefs no later than 20 days after service of the opening briefs. The parties mu st serve each other with the opening and any reply briefs. [Original signed by J. Randolph Babbitt]
J. RANDOLPH BABBITT ADMINISTRATOR Federal Aviation Administration

3 When filing their briefs, the parties should use the appropriate address for the Hearing Docket as set forth in 14 C.F.R. § 13.210(a).