SERVED SEPTEMBER 24, 2013 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASIITNGTON, D.C.

IN THE MATTER OF TRANS NORTH AVIATION, LTD FAA DOCKETNO. (2012-GL-03-0012) FDMS NO. (FAA-2013-0046) (Civil Penalty Action) 

# RECEIVED SEP 30 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 INTERPRETATIONLETTER

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 Briefas immaterial

or in the alternative and pursuant to the court's direction, TRANS NORTH AVIATION, LTD, hereby files its briefas to the applicability ofthe FAA legal interpretation letter submitted to the court and utilized in cross examination onthe day ofhearing, July 23,2013.

MOTION TO STRIKE AGENCY'S CLOSING BRIEF 1. At the time ofhearing 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 ofthe 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 ofthe hearing that, should the Respondent's letter be found to be onpoint, then it would likely be dispositive ofthe 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 Presidenthad adequate "proof' ofhis planning; b) whether the rest requirement "was being cut close"; c) a sunnnarization ofthe Aviation Safety Inspector's (ASI) testimony; d) a short review ofthe ASI'

### s resume; e) an assertion that Respondent's President "did not do any flight planning for the last leg ofthat flight"; f) 

### excerpts from Respondent's Operations Specifications; g) and an assertion thatthe 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 FAAthat would support the Agency's position. 7. The purpose ofthis Court's request was not to re-argue the facts ofthe 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 FAAINTERPRETATION LETTER



### 1. At the July 23, 2013 hearing, Respondent introduced into evidence anFAA Legal Interpretation letter from Assistant ChiefCounsel, Rebecca B. MacPherson to Jason M. Kidd, dated November 13, 2012 (hereinafter referred to as the "Kidd Letter" and attached hereto) during cross-examination ofthe Agency's witness, Aviation Safety Inspector Sandra Boerman (Tr. at Page 170). 2. As pointed out during cross examination ofMs. 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 partythat 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 interpretationletters

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

3the FAA'sposition on a variety ofissues. The fact thatthe Kidd letter is on all fours withthe present factual scenario should render any argument respecting further interpretation orpractical 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 ofapplicable interpretation letters from the previous 21 years. 4. The issue before the Court, and the issue for whichthe Kidd Letter is an integral part, is whether Trans North Aviation's pilot should have begunhis third flight ofthe day ifhe knewthat he would no longer have 10 hours ofduty free time looking back over the last 24 hours after he completed his flight. The Kidd Letter answers this question unequivocally. The pertinent paragraphs ofthe 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 inrest from 2200z until 0800z. The flightcrew is then scheduled to start a duty assigmnentthat is supposed to begin at 0800z and end at 2100z. The duty assigmnent consists ofthree flight segments, each ofwhich is scheduledto be 3 hours long. The first flight segment is scheduledto depart at 0930z; the second segment is scheduled to depart at 1300z; and the fmal segment is scheduledto depart at 1800z. You then list a number ofdelays 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 lowvisibility; (3) a diversion due to a mechanical failure; and (4) a delayed takeoffclearance from airtraffic control. Each ofthese delays would result in the flightcrew finishing its duty day after 21OOz. You ask whether these delays would result in the flightcrew violating the re requirement of § 135.267(d) ifthat flightcrew finishes all three flight segments ofits originallyscheduled duty day. Subsection 135.267(d) requires that an assignment "'mustpro-vide for at least 10 consecutive hours ofrest during the 24-hour period that precedes the planned completion time ofthe assigmnent." In a previous interpretation, the FAA emphasizedthat "[t]he key to the applicability of§ 135.267(d) is inthe fmal phrase 

### 'planned completiontime ofthe assigmnent.'" Inthat interpretation, the FAA

4concluded that ifa crewmember is realistically scheduledto receive 10 hours ofrest in a 24-hourperiod, then "ifthe original planning is upset for reasons beyond the control ofthe [certificate holder], the flight may nevertheless be conducted, even though crew duty time may extend beyond 14 hours "in a 24-hour period. The FAAhas previously stated that delays due to air traffic control, mechanical problems, or adverse weather could constitute circumstances that are beyondthe control ofthe certificate holder. In addition, the FAAhas stated that delays due to late--arriving passengers or cargo could also constitute circumstances that are beyond the control ofthe certificate holder. Accordingly, the delays specified in your question (late-arriving passengers or cargo low visibility mechanical failure, and delayed takeoffclearance) could constitute circumstances that are beyondthe control ofthe certificate holder that would permit the flightcrew to finish its duty day after the originally-planned 2100z completiontime. 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 musthave beenrealistically scheduled." 

### Footnotes omitted. 5. Inthe 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 completiontime would be exceeded. 7. Not only is the Kidd Letter the controlling law at the time ofthe accident inthe 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 ofthe Kidd Letter is immaterial to this Court as those changes, ifany, occurred after November 26, 2011. 8. The Agency's reliance onthe 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

5that is at issue inthe instant case. While there are some similarities, 

### § 121 regulations

cover major airline operations, such as United Airlines and DeltaAirlines, while § 135 regulations are directedtoward on-demand charter operations. Itis 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 ofother operational differences do not lendthemselves to interpretation under part 135. Simply put, an airline pilot is subject to an entirely different set of rules andregulations that would otherwise be subjectto an on-demand charterpilot. The instant case provides a telling example as to why. An airline pilot would have not had the luxuryto delay his flight awaiting a late arriving patient- an on-demand pilot could do exactly that. Airline pilots operate on a schedule

- on-demandpilots operate on a

### plan. That is precisely why 14 C.F.R. § 135. 267(d) applies onlyto the 

### plan, 1 not the actual duty day. 9. None ofthe interpretation letters presented by the Agency whichpurportedly 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 Aviationpresented evidence at the hearing that demonstrates it created a realistic plan that was consistent withthe letter and spirit ofthe 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 pertinentpart [

.... ] (d) Each assignment under paragraph (b) ofthis section mustprovide for at least I0 consecutive hours ofrest during the 24-hourperiodthatprecedes theplannedcompletion time ofthe assignment (emphasis supplied).

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### evidence inthe 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 Briefand rely upon the Kidd Letter as presented at the hearing onJuly 23, 2013. In

### the alternative and based uponthe foregoing, Trans NorthAviation, LTD respectfully requests this Courtrely upon the Kidd Letter to determine whether there has been a violation of 14 C.F.R. 

### § 135. 267(d) or grant any other suchreliefas the Court deems appropriate. Dated: September 24, 2013

Charles R. Barnett, 11I Barnett & 

### Borth, LLC 800 WaukeganRoad, Suite 200 Glenview, 1L 60025 (847) 809-9520 (815) 356-7042 (FAX) Respectfully submitted,

7CERTIFICATE 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 AviationAdministration 2300 East Devon Avenue Des Plaines, IL 60018-4696 FAX: 847-294-7498 The Honorable Richard C. Goodwin,

### Administrative LawJudge Office ofHearings, M-20 1200 NewJersey Avenue, S.E. East Building Ground Floor Room E12-320 Washington, DC 20590 FAX: 202-366-7536

Dated this 24th day ofSeptember, 2013.

8

# ~~ Charles 

### R. Barnett, III Attorney for RespondentU.S. Department of Transportation Federal Avialloq, Administration 

### 11110V Jason M . .Kidd 7201 Northview Drive Brookfield, OH 44403 DearMr. Kidd: Office of the Chief Counsel 800 Independence Ave., S.W. Washington, D.C. 20591

This is inresponse to your July 12, 2012 letter posing a number ofquestions about 14 C.F

### .R. part 135 operatingrules. Flight, Duty, and Rest Questions Question 1: Phone Calls Duringa Rest Period For your first question, you ask whether a certificate holder canrequire a flight crewmemberto answer a phone call from the certificate holder during a restperiod. During a restperiod, a crewmember mustbe free from all restraint by the certificate holder. 1 Ifa crewmember is required to answer thephone 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 cannotrequire a flight crewmemberto answer a phone call during a rest period. We note, however, thatthe FAAhas a "onephone call" policy that "generally allows a certificate holderto initiate one phone call during [a] crewmember's rest period."2 lfthe crewmember voluntarily chooses to answer this phone call, thenthe FAA does not viewthe call as disruptive and breaking the restperiod.3 However, we emphasize that in orderfor the "onephone call" policy to apply, the crewmember cannotbe required to answer the certificate holder's phone call, but must instead answerthe phone onhis own volition. Question 2: Effect ofDelays For your next question, youpose the following scenario. A part 135 certificate holder operates unscheduled cargo andpassenger operations pursuantto 14 C.F.R. 

### § 135.267(d). That certificate holder schedules its flightcrew to be 

### inrest from 2200zuntil 0800z. The flightcrew is then scheduled to start a duty assignment that is supposed to begin at 0800z and end at 21OOz. The duty assignment consists ofthree flight segments, each ofwhichis scheduled to be 3 hours long.

1 Letter to Glenn Jimenez from Rebecca MacPherson, Assistant ChiefCounsel for Regulations (June 9, 20II). zId. 'Id. 

### 1The first flight segment is scheduled to depart at 0930z; the second segment is scheduled to depart at 1300z; andthe final segment is scheduledto depart at 1800z. You thenlist a number ofdelays that couldhappen 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 takeoffclearance from air traffic controL Each ofthese delays wouldresult inthe 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) ifthat flightcrew finishes all three flight segments ofits originally-scheduled duty day. Subsection 135.267(d) requires that an assignment "mustprovide for at least 10 consecutive hours ofrest duringthe 24-hour period that precedes theplanned completiontime ofthe assignment." 

### In a previous interpretation, the FAA emphasizedthat "[t]he key to the applicability of§ 135.267(d) is inthe final phrase 

### 'planned completion time ofthe assignment."'4 

### In that interpretation, the FAA concluded that ifa crewmember is realistically scheduledto receive 10 hours ofrest in a 24-hour period, then "ifthe originalplanning is upset for reasons beyondthe control ofthe [certificate holder], the flight may nevertheless be conducted, even though crew duty time mayextendbeyond 14hours" in a 24-hourperiod.5 The FAAhas previously stated that delays due to air traffic control, mechanical problems, or adverse weather could constitute circumstances that are beyond the control ofthe certificate holder.6 In addition, the FAA has stated that delays due to late-arriving passengers or cargo could also constitute circumstances that are beyondthe control ofthe certificate holder. 7 Accordingly, the delays specified inyour question (late-arriving passengers or cargo, low visibility, mechanical failure, and delayed takeoffclearance) could constitute circumstances that are beyondthe control ofthe certificate holder that would permitthe flightcrew to finish its duty day afterthe originally-planned 2100z completiontime. However, we emphasize that in order for the circumstances-beyond-the-control-of-the-certificate-holder doctrine to apply, the original 2100z completion time musthave beenrealistically scheduled. 8 Navigation and ChartDatabases Questions 3 and 4: Pilot-Performed Updates on Avionic Devices Two questions youpose concernpilotperformed updates to aeronautical information avionic devices. Firstyou ask whether the pilot ofan aircraft operated underpart 135 may update a GPS and/or FMS navigation database (such as the Collins FMS-3000, GNSSOO series or Gl000). Second, you ask whether the same pilot may update the charts displayed electronically on a Multifunction Display, such asthe Jeppesen approach charts onthe Collins Proline 21. Because

4 Letterto Kevin Wilson from Donald P. Byrne, Assistant ChiefCounsel ofRegulations and Enforcement Division (Mar. 30, 1992) (quoting and emphasizing a portionofthe regulatory text from§ 135.267(d)). 5 Id See also Letter to Mr. Ross from Donald P. Byrne (Aug. 30, 1993). 6 See Letterto William E. Banks, Jr. from RebeccaMacPherson (Mar. 18, 2009) (citingprevious legal interpretations). 7 See Letterto Kevin Wilson andLetter to Mr. Ross. 8 See Letter to Kevin Wilson. 

### 2bothofthese questions deal with a rule thatthe 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 manifestbefore eachtakeoff. You ask whether a copy ofthis load manifest mustbe left with the certificate holder and/or departure airport personnel orwhether itis sufficientto keep the only copy ofthe load manifest onboardthe aircraft. Subsection 135.63(c) requires the certificate holder ofa multiengine aircraft to prepare a load manifest in duplicate containing information concerning the loading ofthe aircraft. Pursuant to 

### § 135.63(d), the pilot-in-commandmust carry the load manifest inthe aircraft to its destination, andthe certificate holder must thenkeep the load manifest for at least 30 days at its principal operations base, or at another location usedby the certificate holder and approved by the FAA. When 

### § 135.63 was originally proposed it included a requirementthatthe pilot-in-command arrange at the takeoffairport for a copy ofthe load manifest to be retained in a suitable place at that airport.9 However, this part oftheproposedrule was withdrawn inresponse to comments. 10 As such, 

### § 135.63 does not specify what must be done with the duplicate ofthe load manifest. While 

### § 135.63( d) does not specify howthe duplicate copy of

### the load manifest shouldbe handled, the FAA advises certificate holders to incorporate procedures intheir operations' manuals for the disposition ofthe duplicate copy. 11 The certificate holder should workwith its principal operations inspector to develop such procedures. This is because the duplicate copy of the load manifest couldprovide valuable informationto 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 EnforcementAction Question 6: Manual that Violates FAARegulations For your next question, you pose a scenario in which an operatorhas submitted a required manual containing procedures that violate FAAregulations. You ask whetherin that scenario the FAAwould hold responsible: (1) the certificate holder for submitting and enforcing improper procedures; and (2) the crewmember for complying withcompany 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. Bernsteinfrom Rebecca MacPherson (Nov. 13, 2009); Letterto Nettie Dickerson, from EdwardP. Fabennan, Acting Assistant ChiefCounse1 (Nov. 5, 1980). 11 See Letter to Stane1y Bernstein. · 12 !d. 

### 3Anyone who violates FAAregulations couldbe subjectto anenforcement action. 

### In order to actually determine who would be held responsible by the FAA inyour scenario, we would need additional details concerningthe company procedures that violate FAAregulations. Operation Specifications COSS and A097 You also ask a number ofquestions 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 yourpatience and trust that the above responds to your concerns. 

### Ifyouneed further assistance, please contactmy staffat (202) 267-3073. This response was prepared by Viola Pando and Alex Zektser, Attorneys, Regulations Division ofthe Office ofthe Chief Counsel, and coordinated with the Air Transportation Division ofFlight Standards Service. Sincerely,

# ~r~ Rebecca

### B. MacPherson Assistant ChiefCounsel for Regulations, AGC-200



### 4