SERVED SEPTEMBER 24, 2013 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

W ASIITNGTON, D.C. 

IN THE MATTER OF 

TRANS NORTH AVIATION, LTD 

FAA DOCKET NO. (2012-GL-03-0012) 

FDMS NO. (FAA-2013-0046) 

(Civil Penalty Action) 

RECEIVED 

SEP 3 0 2013 

HEARING DOCKET 

TRANS NORTH AVIATION, LTD'S MOTION TO STRIKE 

AGENCY'S CLOSING BRIEF 

AND 

TRANS NORTH AVIATION'S LTD COURT DIRECTED SUBMISSION OF BRIEF ON 

APPLICABILITY OF LEGAL FAA INTERPRETATION LETTER 

TRANS NORTH AVIATION, LTD., by and through its counsel, BARNETT & BORTH, 

LLC, pursuant to 14 C.F.R § 13.49(e) moves to strike the Agency's Closing Brief as immaterial 

or in the alternative and pursuant to the court's direction, TRANS NORTH AVIATION, LTD, 

hereby files its brief as to the applicability of the FAA legal interpretation letter submitted to the 

court and utilized in cross examination on the day of hearing, July 23,2013. 

MOTION TO STRIKE AGENCY'S CLOSING BRIEF 

1. At the time of hearing on this matter, July 23, 2013, Respondent cross-examined the 

FAA's witness and presented the Court with an FAA legal interpretation letter dated 
November 13, 2102 (hereinafter referred to as the "Kidd Letter" and attached hereto) 

that the Court reasoned could go "to the crux of the case (Tr. at page 201). 

2. Agency counsel had produced no other contrary FAA legal interpretation letter at the 

time of the hearing but objected to the Kidd Letter being accepted into evidence 

stating that she did not "believe that is the most up to date information on that 

particular issue" (Tr. at page 200). 

3. The Court then instructed the parties to submit their respective letters along with an 

argument as to why each letter should be controlling. 

4. The Agency has submitted a "Closing Brief' that is immaterial to the Court's 

instruction to supply a FAA legal interpretation letter and the reasons it should be 

favored over Respondent's letter. 

5. The Court indicated at the time of the hearing that, should the Respondent's letter be 

found to be on point, then it would likely be dispositive of the matter. 

6. The Agency's brief engages the Court in a detour that is contrary from the Court's 

directions and covers such topics as: 

a) whether Respondent's President had adequate "proof' of his planning; 

b) whether the rest requirement "was being cut close"; 

c) a sunnnarization of the Aviation Safety Inspector's (ASI) testimony; 

d) a short review of the AS I' s resume; 

e) an assertion that Respondent's President "did not do any flight planning for the 

last leg of that flight"; 

f) excerpts from Respondent's Operations Specifications; 

g) and an assertion that the day was not "realistically" scheduled. 

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None of which are material to the Court's request to produce an alternative legal 

interpretation letter from the FAA that would support the Agency's position. 

7. The purpose of this Court's request was not to re-argue the facts of the case nor to 

raise appeal issues respecting what transpired at the hearing. Accordingly, 

Respondent respectfully requests that this Court strike the document captioned 

AGENCY'S CLOSING BRIEF and grant any other such relief as the Court deems 

appropriate. 

BRIEF ON APPLICABILITY OF LEGAL FAA INTERPRETATION LETTER 

1. At the July 23, 2013 hearing, Respondent introduced into evidence an FAA Legal 

Interpretation letter from Assistant Chief Counsel, Rebecca B. MacPherson to Jason 

M. Kidd, dated November 13, 2012 (hereinafter referred to as the "Kidd Letter" and 

attached hereto) during cross-examination of the Agency's witness, Aviation Safety 

Inspector Sandra Boerman (Tr. at Page 170). 

2. As pointed out during cross examination of Ms. Boerman, the Kidd Letter was 

written by the FAA's legal department, a department that makes policy for the FAA 

and dictates how FAR's and CFR's are to be interpreted by FAA employees such as 

Ms. Boerman. These legal interpretation letters should be considered by this Court as 

admissions by a party-opponent which is defined as an out-of-court statement by a 

party that is against the party's interest and that is admissible against the party. Unlike 

judicial cases and rulings and orders from the NTSB that can be interpreted in various 

fashions and used to bolster or degrade legal arguments, these interpretation letters 

come from the highest level of the FAA legal department and are drafted to solidifY 

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the FAA's position on a variety of issues. The fact that the Kidd letter is on all fours 

with the present factual scenario should render any argument respecting further 

interpretation or practical application moot. 

3. In addition, the Kidd Letter serves the Court well as a current legal interpretation of 

14 C.F.R. § 135.267(d) as well as an appropriate review of applicable interpretation 

letters from the previous 21 years. 

4. The issue before the Court, and the issue for which the Kidd Letter is an integral part, 

is whether Trans North Aviation's pilot should have begun his third flight ofthe day 

if he knew that he would no longer have 10 hours of duty free time looking back over 

the last 24 hours after he completed his flight. The Kidd Letter answers this question 

unequivocally. The pertinent paragraphs of the Kidd Letter are as follows: 

"For your next question, you pose the following scenario. A part 135 certificate 

holder operates unscheduled cargo and passenger operations pursuant to 14 C.F .R. § 

135.267( d). That certificate holder schedules its flightcrew to be in rest from 2200z 

until 0800z. The flightcrew is then scheduled to start a duty assigmnent that is 

supposed to begin at 0800z and end at 2100z. The duty assigmnent consists of three 

flight segments, each of which is scheduled to be 3 hours long. 

The first flight segment is scheduled to depart at 0930z; the second segment is 

scheduled to depart at 1300z; and the fmal segment is scheduled to depart at 1800z. 

You then list a number of delays that could happen during the flightcrew's assigned 

duty day. The delays specified in your letter consist of: (1) late-arriving passengers or 

cargo;(2) en-route flight delays due to low visibility; (3) a diversion due to a 

mechanical failure; and ( 4) a delayed takeoff clearance from air traffic control. Each 

of these delays would result in the flightcrew finishing its duty day after 21 OOz. You 

ask whether these delays would result in the flightcrew violating the re requirement of 

§ 135.267(d) if that flightcrew finishes all three flight segments of its originallyscheduled duty day. 

Subsection 135.267(d) requires that an assignment "'must pro-vide for at least 10 

consecutive hours of rest during the 24-hour period that precedes the planned 

completion time of the assigmnent." In a previous interpretation, the FAA 

emphasized that "[t]he key to the applicability of§ 135.267(d) is in the fmal phrase 

'planned completion time of the assigmnent. '" In that interpretation, the FAA 

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concluded that if a crewmember is realistically scheduled to receive 10 hours of rest 

in a 24-hour period, then "if the original planning is upset for reasons beyond the 

control of the [certificate holder], the flight may nevertheless be conducted, even 

though crew duty time may extend beyond 14 hours "in a 24-hour period. 

The FAA has previously stated that delays due to air traffic control, mechanical 

problems, or adverse weather could constitute circumstances that are beyond the 

control of the certificate holder. In addition, the FAA has stated that delays due to 

late--arriving passengers or cargo could also constitute circumstances that are beyond 

the control of the certificate holder. Accordingly, the delays specified in your 

question (late-arriving passengers or cargo low visibility mechanical failure, and 

delayed takeoff clearance) could constitute circumstances that are beyond the control 

of the certificate holder that would permit the flightcrew to finish its duty day after 

the originally-planned 2100z completion time. However we emphasize that in order 

for the circumstances-beyond-the-control-of-the-certificate-holder doctrine to apply, 

the original 21 OOz completion time must have been realistically scheduled." 

Footnotes omitted. 

5. In the instant case, three legs were scheduled and the planned departure on the 

second leg was delayed due to the late arriving passenger who was a critically ill 

patient. 

6. By including "a diversion due to a mechanical failure", the Kidd Letter clearly 

contemplates delays earlier in the duty day that would require the third (last) leg of 

the day to be started knowing that the planned completion time would be exceeded. 

7. Not only is the Kidd Letter the controlling law at the time of the accident in the 

instant case, it serves as a review as it references three other legal interpretations 

concerning 135.267( d)~ one dated March 18, 2009, one dated August 30, 1993 and 

one dated March 30, 1992. Whether the law changed since the date of the Kidd 

Letter is immaterial to this Court as those changes, if any, occurred after November 

26, 2011. 

8. The Agency's reliance on the Winslow letter is misplaced. The Winslow letter is in 

response to a question regarding a 14 C.P.R.§ 121 operation, not a§ 135 operation 

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that is at issue in the instant case. While there are some similarities, § 121 regulations 

cover major airline operations, such as United Airlines and Delta Airlines, while 

§ 135 regulations are directed toward on-demand charter operations. It is logical to 

suggest that a 121 operation should be at least as restrictive as a 135 operation, 

however, to assert the opposite is not logical. Airline work rules, duty rigs, schedules 

and a myriad of other operational differences do not lend themselves to interpretation 

under part 135. Simply put, an airline pilot is subject to an entirely different set of 

rules and regulations that would otherwise be subject to an on-demand charter pilot. 

The instant case provides a telling example as to why. An airline pilot would have 

not had the luxury to delay his flight awaiting a late arriving patient- an on-demand 

pilot could do exactly that. Airline pilots operate on a schedule - on-demand pilots 

operate on a plan. That is precisely why 14 C.F .R. § 135. 267( d) applies only to the 

plan, 1 not the actual duty day. 

9. None of the interpretation letters presented by the Agency which purportedly contain 

the "up to date" information concern 14 C.F.R. § 135. 267(d)- all are focused on 14 

C.F .R. § 121 -the regulation governing airline operations. Furthermore, it is not 

necessary to use § 121 regulations to attempt to "interpret" § 135 regulations in the 

instant case because the Court may rely upon the Kidd Letter which precisely 

addresses the § 135 regulation at issue. 

10. Lastly, Trans North Aviation presented evidence at the hearing that demonstrates it 

created a realistic plan that was consistent with the letter and spirit of the CFR. At 

this point, it is inappropriate for the Agency to argue in an appeal-like fashion that the 

I 14 C.F.R. reads in pertinent part [ .... ] (d) Each assignment under paragraph (b) of this section must provide for 

at least I 0 consecutive hours of rest during the 24-hour period that precedes the planned completion time of the 

assignment (emphasis supplied). 

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evidence in the record should be viewed in some other light. A realistic plan was in 

place that complied with 14 C.F.R. § 135. 267(d) ~no other discussion is necessary. 

WHEREFORE, Trans North Aviation, LTD respectfully requests this Court strike the 

Agency's Closing Brief and rely upon the Kidd Letter as presented at the hearing on July 23, 

2013. In the alternative and based upon the foregoing, Trans North Aviation, LTD respectfully 

requests this Court rely upon the Kidd Letter to determine whether there has been a violation of 

14 C.F.R. § 135. 267(d) or grant any other such relief as the Court deems appropriate. 

Dated: September 24, 2013 

Charles R. Barnett, 11I 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, 1L 60025 

(847) 809-9520 

(815) 356-7042 (FAX) 

Respectfully submitted, 

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CERTIFICATE OF SERVICE 

The undersigned certifies that the foregoing Motion and Brief was served via facsimile 

and U.S. Mail as follows: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl000 

FAX: 202-493-5142 

ONE COPY 

Jeanette Daubaras, Complainant's Counsel 

Great Lakes Region, AGL-7M 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

FAX: 847-294-7498 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room E12-320 

Washington, DC 20590 

FAX: 202-366-7536 

Dated this 24th day of September, 2013. 

8 

~~ Charles R. Barnett, III 

Attorney for Respondent 
U.S. Department 

of Transportation 

Federal Avialloq, 

Administration 11110 V 

Jason M . .Kidd 

7201 Northview Drive 

Brookfield, OH 44403 

Dear Mr. Kidd: 

Office of the Chief Counsel 800 Independence Ave., S.W. 

Washington, D.C. 20591 

This is in response to your July 12, 2012 letter posing a number of questions about 14 C.F .R. part 

135 operating rules. 

Flight, Duty, and Rest Questions 

Question 1: Phone Calls During a Rest Period 

For your first question, you ask whether a certificate holder can require a flight crewmember to 

answer a phone call from the certificate holder during a rest period. 

During a rest period, a crewmember must be free from all restraint by the certificate holder. 1 If a 

crewmember is required to answer the phone by the certificate holder, then that crewmember is 

not free from all restraint. Thus, that flight crewmember is not on a valid rest period. 

Accordingly, a certificate holder cannot require a flight crewmember to answer a phone call 

during a rest period. 

We note, however, that the FAA has a "one phone call" policy that "generally allows a certificate 

holder to initiate one phone call during [a] crewmember' s rest period."2 lfthe crewmember 

voluntarily chooses to answer this phone call, then the FAA does not view the call as disruptive 

and breaking the rest period. 3 However, we emphasize that in order for the "one phone call" 

policy to apply, the crewmember cannot be required to answer the certificate holder's phone call, 

but must instead answer the phone on his own volition. 

Question 2: Effect of Delays 

For your next question, you pose the following scenario. A part 135 certificate holder operates 

unscheduled cargo and passenger operations pursuant to 14 C.F.R. § 135.267(d). That certificate 

holder schedules its flightcrew to be in rest from 2200z until 0800z. The flightcrew is then 

scheduled to start a duty assignment that is supposed to begin at 0800z and end at 21 OOz. The 

duty assignment consists of three flight segments, each of which is scheduled to be 3 hours long. 

1 Letter to Glenn Jimenez from Rebecca MacPherson, Assistant Chief Counsel for Regulations (June 9, 20 II). 

z Id. 

'Id. 

1 
The first flight segment is scheduled to depart at 0930z; the second segment is scheduled to 

depart at 1300z; and the final segment is scheduled to depart at 1800z. 

You then list a number of delays that could happen during the flightcrew' s assigned duty day. 

The delays specified in your letter consist of: (I) late-arriving passengers or cargo; (2) en-route 

flight delays due to low visibility; (3) a diversion due to a mechanical failure; and ( 4) a delayed 

takeoff clearance from air traffic controL Each of these delays would result in the flightcrew 

fmishing its duty day after 2100z. You ask whether these delays would result in the flightcrew 

violating the rest requirement of§ 135.267(d) if that flightcrew finishes all three flight segments 

of its originally-scheduled duty day. 

Subsection 135.267(d) requires that an assignment "must provide for at least 10 consecutive 

hours of rest during the 24-hour period that precedes the planned completion time of the 

assignment." In a previous interpretation, the FAA emphasized that "[t]he key to the 

applicability of§ 135.267(d) is in the final phrase 'planned completion time of the 

assignment."'4 In that interpretation, the FAA concluded that if a crewmember is realistically 

scheduled to receive 10 hours of rest in a 24-hour period, then "if the original planning is upset 

for reasons beyond the control of the [certificate holder], the flight may nevertheless be 

conducted, even though crew duty time may extend beyond 14 hours" in a 24-hour period. 5 

The FAA has previously stated that delays due to air traffic control, mechanical problems, or 

adverse weather could constitute circumstances that are beyond the control of the certificate 

holder. 6 In addition, the FAA has stated that delays due to late-arriving passengers or cargo 

could also constitute circumstances that are beyond the control of the certificate holder.7 

Accordingly, the delays specified in your question (late-arriving passengers or cargo, low 

visibility, mechanical failure, and delayed takeoff clearance) could constitute circumstances that 

are beyond the control of the certificate holder that would permit the flightcrew to finish its duty 

day after the originally-planned 2100z completion time. However, we emphasize that in order 

for the circumstances-beyond-the-control-of-the-certificate-holder doctrine to apply, the original 

2100z completion time must have been realistically scheduled.8 

Navigation and Chart Databases 

Questions 3 and 4: Pilot-Performed Updates on Avionic Devices 

Two questions you pose concern pilot performed updates to aeronautical information avionic 

devices. First you ask whether the pilot of an aircraft operated under part 135 may update a GPS 

and/or FMS navigation database (such as the Collins FMS-3000, GNSSOO series or Gl 000). 

Second, you ask whether the same pilot may update the charts displayed electronically on a 

Multifunction Display, such as the Jeppesen approach charts on the Collins Proline 21. Because 

4 Letter to Kevin Wilson from Donald P. Byrne, Assistant Chief Counsel ofRegulations and Enforcement Division 

(Mar. 30, 1992) (quoting and emphasizing a portion of the regulatory text from§ 135.267(d)). 5 Id See also Letter to Mr. Ross from Donald P. Byrne (Aug. 30, 1993). 6 See Letter to William E. Banks, Jr. from Rebecca MacPherson (Mar. 18, 2009) (citing previous legal 

interpretations). 

7 See Letter to Kevin Wilson and Letter to Mr. Ross. 8 See Letter to Kevin Wilson. 

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both of these questions deal with a rule that the FAA is currently finalizing, we cannot answer 

these questions at this time. Instead, we will answer these questions in a separate letter once the 

pertinent rulemaking has concluded. 

Weight and Balance Computations 

Question 5: Load Manifest Duplicate 

For your next question, you state that 14 C.F.R. § 135.63(c) requires you to prepare a load 

manifest before each takeoff. You ask whether a copy of this load manifest must be left with the 

certificate holder and/or departure airport personnel or whether it is sufficient to keep the only 

copy of the load manifest on board the aircraft. 

Subsection 135.63(c) requires the certificate holder of a multiengine aircraft to prepare a load 

manifest in duplicate containing information concerning the loading of the aircraft. Pursuant to 

§ 135.63(d), the pilot-in-command must carry the load manifest in the aircraft to its destination, 

and the certificate holder must then keep the load manifest for at least 30 days at its principal 

operations base, or at another location used by the certificate holder and approved by the FAA. 

When § 135.63 was originally proposed it included a requirement that the pilot-in-command 

arrange at the takeoff airport for a copy of the load manifest to be retained in a suitable place at 

that airport.9 However, this part of the proposed rule was withdrawn in response to comments.10 

As such, § 135.63 does not specify what must be done with the duplicate of the load manifest. 

While § 135.63( d) does not specify how the duplicate copy of the load manifest should be 

handled, the FAA advises certificate holders to incorporate procedures in their operations' 

manuals for the disposition of the duplicate copy.

11 The certificate holder should work with its 

principal operations inspector to develop such procedures. This is because the duplicate copy of 

the load manifest could provide valuable information to investigators regarding passengers, 

crewmembers, and aircraft weight and balance ifthere is an accident and the load manifest 

carried on-board the aircraft is destroyed. 12 

Enforcement Action 

Question 6: Manual that Violates FAA Regulations 

For your next question, you pose a scenario in which an operator has submitted a required 

manual containing procedures that violate FAA regulations. You ask whether in that scenario the 

FAA would hold responsible: (1) the certificate holder for submitting and enforcing improper 

procedures; and (2) the crewmember for complying with company procedures that violate FAA 

regulations. 

9 See42 FR43490, 43515 (Aug. 29, 1977). 10 See 43 Fed. Reg. 46742,46764 (Oct. 10, 1978); Letter to Stanley L. Bernstein from Rebecca MacPherson (Nov. 

13, 2009); Letter to Nettie Dickerson, from EdwardP. Fabennan, Acting Assistant ChiefCounse1 (Nov. 5, 1980). 11 See Letter to Stane1y Bernstein. · 12 !d. 

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Anyone who violates FAA regulations could be subject to an enforcement action. In order to 

actually determine who would be held responsible by the FAA in your scenario, we would need 

additional details concerning the company procedures that violate FAA regulations. 

Operation Specifications COSS and A097 

You also ask a number of questions about operation specifications (OpSpecs) COSS and A097. 

Your questions about these OpSpecs are policy questions, and as such, we have referred them to 

the AFS-200 program office. 

We appreciate your patience and trust that the above responds to your concerns. If you need 

further assistance, please contact my staff at (202) 267-3073. This response was prepared by 

Viola Pando and Alex Zektser, Attorneys, Regulations Division of the Office of the Chief 

Counsel, and coordinated with the Air Transportation Division of Flight Standards Service. 

Sincerely, 

Rebecca 

~r~ B. MacPherson 

Assistant Chief Counsel for Regulations, AGC-200 

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