10/17/2014 15:08 8472947498 FAA GLRC 

U.S. :OEPARTMENT OF TRANSl'ORTATION 

OFFICE OF liEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

T~NS NORTH AVIATION, LTD. 

(Civil Penalty Action) 

FDMS NO. (FAA - 2013-46) 

AGENCY'S CLOSING BRIEF 

STATEMENT OF FACTS 

Trans North Aviation, Ltd. (hereinafter Trans North) is an on demand air taxi that 

operates under a 14 C.P.R. part 135 Air Carrier Certificate with required Operation 

Specifications. Mr. Ronald Schaberg is the President and at all the times mentioned 

herein the Director of Operations for Trans North. This case involves the violation of 14 

CXR. part 267(d) 

On January 15,2013, a Final Notice of Proposed Civil Penalty was sent to Trans North 

stating that they had violated the rest requirements of 14 C.F.R. part 135. 267(d) which 

requires a pilot in command to have ten hours of rest in the preceding 24 hom: look back 

period from the tinle of completion of the assignment and assessing a civil penalty of 

$7500.00 dollars if Trans North did not appeal the Final Notice. They appealed admitting 

all a.!legations of the Complaint except they denied that the Trans North's and their 

assigned pilot, Mr. Didier, did not provide for at least 10 consecutive hours of rest during 

the 24 hour period that preceded the planned completion time of tile fl.ight assignment on 

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November 28, 2011. A hearing was held on July 23, 2013. This brief is the closing the 

a.rgument for the hearing. 

On or about November 26, 2011, Mr. Schaberg, accepted an assignment to provide an air 

ambulance flight to transport a hospital patient from West Palm Beach, Florida Airport 

(airport identifier KPBI) to Chicago Executive Airport (identifier KPWK) in 111inois. 

After receiving the assignment he contacted one of Trans North's pilots on November 26, 

20ll, Mr. Didier, and gave him verbal instruction to fly aixcraft N4599F a Cessna Model 

CE 340 to West Palm Beach, Florida, pick up a hospital patient and then fly to Chicago 

Executive Airport in Illinois with the patient. He was to be accompanied on the trip by a 

paramedic, Maynard Blodgett, who would care for the patient on the return trip (Tr. pgs. 

210-212). 

At the time of receiving the assigmnent, Mr. Schaberg testi:fied he used a computer site 

for flight planning to review on the computer program a flight plan. for the trip and 

determined whether it would be safe and in accordance with the Federal Aviation 

Regulations to perform. this assignment with Mr. Didier as Pilot In Command. The initial 

plan included a flight to West Palm Beach on November 27, 2011, an overnight stay, fuel 

stops· and picking up and transporting the patient on a late morning flight to Chicago 

Executive Airport on November 28, 201 L Schaberg identified this as his plan "A" for the 

trip during his testimony (Tr. pgs. 21 8"226)1

• 

Pilot Didier did take off from Oshkosh, Wisconsin, and began his flight to West Palm 

Beach Airport On November 27, 20ll. During the flight, the pDot discovered that there 

was a failure of the attitude indicator on the aircraft and he landed at the Cravvfordville, 

Indiana Airport (identifier KCFJ). He notified Mr. Schaberg that he would be unable to 

complete the assignment and flight to West Palm Beach with the aircraft if it could not be 

1 Duriug this testimony Mr. Schaberg was referring to Exhibit R-1 which was a printed recreation of what 

he said he did to prepare for the flight under ''Plan A" however thi1 document was prepared on July 21, 

2013. The document was prepared in summer weather, the flight was to take place at lhe end of November 

20 11. D1e Judge accepted it into evidence for a limited purpose over objections by the Administmtor. Tho 

Judge stated it would be u.~ed to only show the procedures required to prepare a flight plan. Mr. Schaber 

failed to print out either the fiight plan for l'lau. A or plan B. 

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fixed. Mr. Schaberg attempted to find another part to replace the failed part but was not 

able to- Mr. Schaberg decided to dispatch another aircraft owned by the Company to fly 

to Crawfordville that would allow Pilot Didier and the Paramedic to complete the 

assignment u.sing an another aircraft. 

Mr. Schaberg contacted his Assistant Chief Pilot, Quentin Levitte, to fly the aircraft 

owned by the Trans North, a Piper Navaho Chieftain N59773, from Oshkosh to 

Crawfordville with another Pilot Andrew Wolf, a Col:nmercial Pilot, multi engine rated 

but who had no experience in a Navaho. Mr. Wolf flew th.e Navaho aircraft from 

Oshkosh to Crawfordville with Levitte instructing him and familiarizing him with the 

aircraft during the flight. Mr- Wolf was told that he would fly the Part 91 flights2 from 

CrawfordviJle to West Palm Beach the next day with Didier and Blodgett on board. Pilot 

Didier would pick up the patient in the early afternoon and he would fly the patient back 

to Chicago Executive after a fuel stop. Mr. Schaberg called this his plan "B" after the 

failure of the attitude indicator on the first aircraft. He stated that he again checked the 

flight plan on the computer and determined that the flight could be flovm within all of the 

Part 135 rules including pilot flight and rest times. Plan "B'' now had the aircraft flying 

from Crawfordville to West Palm Beach with the return flight beginning early afternoon 

rather than late morning as originally planned (Tr.pgs.224-232) 

Other than his testimony, Mr. Schaberg had no other proof that he had reviewed these 

flight plans or that they had been checked- For Plan B he testified that the flight could be 

safely flown since at the end ofthe planned completion ofthe assignment Pilot Didier 

would have still met his I 0 hours of rest. There would have been l 01/2 hours of rest time 

at the completion of the assignment (Tr. pgs 224-229). Mr. Schaberg knew at that time 

that the rest time requirement of 135.267(d) was being cut close and that almost any 

delay in this flight would result in a violation of the I 0 hour rest period. 

'A Part 91 flight is a flight flown under 14 C.F.R. Part 91 rules when the flight is not being flown for 

compensation or hire in air transportation and may be a repositioning flight as this one wa..•:;. 

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On November 28,2011, Pilot Wolf was to fly the early morning Part 91 flight to West 

Palm Beach from Crawfordville. However, Pilot Didier flew that leg with a stop for fuel. 

Both Pilot Andrew Wolf and Paramedic Blodgett stated duxing telephonic i.nterviews 

with the Federal Aviation Safety Inspector investigating the accident, that in fact Pilot 

Didier flew all four flights on November 28, 2011 (See Agency Exhibits A-7 and A-13). 

Pilot Didier was also listed as PIC on all filed and activated IFR flight plans (filed by 

Didier) on November 28,2011 (See Exhibit A-10). 

Didier flew the flight from Crawfordvii!e to West Palm Beach with. a stop at PerryHouston County Airport (KPXE), Perry, Georgia, for fuel, and then flew to West Palm 

Beach to pi.ck up the patient 

The Aircraft arrived at West Palm Beach to pick up the patient at 2:54p.m. EST, 

however the ambulance carrying the patient and his wife did not arrive at the agreed upon 

tim.e (according to the Schaberg plan B 1:20 -125:p.m. CST on Nov. 28)3 

When the aircraft landed at West Palm Beach the flight was already almost one half hour 

late then the planned time in. Plan B. 

PAGE 09/18 

Schaberg became aware of a delay when the aircraft was on the ground since he testified 

that he called Lauren Smith in the office to inquire about the flight and she responded that 

they were running a little bit late because the ambulance was "lost" (Tr. 231 ). Outing 

questioning Mr. Schaberg stated he did not know the time he received th.e information 

and that he never checked again on the flight and did not receive confirmation that it had 

taken off even though he admitted teA;ting D.idier about hotels and transportation at 

Chicago El\ecutive (Palwaukee) while the airc(aft was on the ground in Jessup. He again 

denied knowing what time that was (Tr pgs. 245-246) 

Since the ''schedule" for plan B only had a one half hour cushion oftime before the 10 

hour rest period would come into jeopardy of being violated, it was the duty of the 

' Schaberg did all of his plaJ)ning in CST even though the flight would be traveling into EST while the 

Flight Aware record is mostly in EST. 

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Director of Operations to recalculate the actual planned completion time of the flight 

based on the specific condii:ion that existed on that day to determine whether a flight 

should be commenced. In fact the ambulance arrived two and half to three hours later 

then the original planned time. The one half hour of delayed arrival at West Palm Bea,ch 

would have compromised the ten hour rest period and changed the planned completion 

time of the flight. It was at this time that Schaberg should have taken measures to ensure 

that the flight could be accomplished safely without violation of the 10 hour rest period 

based upon the actual conditions on that day at that time or make other arrangements for 

the patient. 

The Aviation Safety Inspector assigned to investigate the accident for violations of the 

Federal Aviation. Regulations governing Partl35 operations gathered and reviewed the 

evidence for any such violations (Tr. Pages 65 - 66) 

ANAJ_,YSIS 

Pilot Didier's rest ended when he came on duty at 6:00a.m. CST (7:00 EST) at 

Crawfordville Airport on November 28,2011. Didier took off from West Palm Beach at 

5:53p.m. EST and flew to Jessup-Wayne County Airport (KJES), Georgia, for fuel and 

after fueling at Jessup he departed for the final segment of the assignment with an 

intended destination of Chicago Executive Airport (KPWK). The aircraft ran out of fuel 

and crashed just short of the Chicago Executive Airport (KPWK) at 10:39 p.m. CST, 

killing ti.J.e two passengers and Pilot Didier. The two survivors were Pilot Andrew Wolf 

and the Paramedic Mr. Maynard Blodgett, 

Looking at the 24 hour look back period using 10:39 p.m. CST on November 28, 2011, as 

the beginning of the 24 hour look back we find that Didier was in his scheduled a rest 

period at that time on the November 27, 2011. We then determine the number hours of 

rest by looking forward to the time when that rest came to an end at which was at 6:00 

a.m. CST on the 28'"' the Aviation Safety Inspector determined that Pilot Didier had only 

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7.3 hour~ of rest in the preceding 24 hours in violation of the 10 hour rule preceding the 

completion of the assignment. (Tr. 81 to 102)(See Agency Exhibit A-ll) 

14 C.P.R. § 135.267. Flight time limitations and rest requirements: Unscheduled one-and 

two pilot crews in (b) states the number of hours that may be flown in any 24 consecutive 

hours may not exceed 8 hours for a flight crew consisting of one pilot. 

This case is about 135.267(d) that states as follows: 

"(d) Each assignment under paragraph (b) of this section must provide for at least 10 

consecutive hours ofrest during the 24 hour peri.od that precedes the planned completion 

time of the assignment." These rules were enacted to provide protection against acute 

short-term fatigue for crewmembers and ensure safety of the flights (See Flight Time 

limitation and Rest Requirements, 50 Fed. Reg. 29306, July 18, 1985). 

While subsection 135(c) allows for a crewmembers flight time to exceed flight time 

limits during a regularly assigned duty period of no more than 14 hours, it still requires 

that it must be preceded by the 10 hours of rest and in addition must be followed 

immediately by lOhours of rest( See 135.267(c) (!)) 

PAGE ll/18 

While reviewing the evidence the Aviation Safety Inspector realized that there was a 

violation of the 10 hour rest period by Pilot Didier. To verify tl1i.s discovery, the ASI 

reviewed the Load Manifests she found in the wrecked aircraft (Agency Ex. A-8) 

prepared by the pilot with times recorded in Central Standard Time. She also reviewed 

the JfR which were really an estimate of the time of departure and was given in UTC or 

ZULU time. The second document that she reviewed was Flight Aware with times for 

departure and arrival recorded mostly in Eastern Stan.dard Time with the time of the crash 

recorded in CST (Agency Ex. A-ll). Flight Aware is a computer generated record 

relying on Air Traffic Control input as to the times of departure and the times of arrival. 

She also reviewed the IFR which were really an estimate of the time of departure and was 

given in UTC or ZULU time and also give an estimate of the time the flight would take. 

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The ASI reconciled the time differences of the of the first two documents and found that 

they agreed in general with regard to the times when the aircraft had begun the flights and 

when it had landed. There were a few minutes of difference in the two sources because 

one of them was based on the pilots records and one of them, Flight Aware, were based 

on actual Air Traffic Control computer records. 

TI1e aircraft arrived in West Palm Beach at 2:54p.m. EST (1 :54 CST) on November 28, 

2011, almost a half hour late from Schaberg's Plan "B" that had the aircraft scheduled to 

meet the ambulance with the patient at (1 :20-1:25 estimated time for plan B CST) 

according to Mr. Schaberg for pick up of the patient and in reality did not depart until 

5:53 EST to Jessup, Georgia for fuel and did not depart Jessup until 7:36p.m. EST with 

the completion of the flight at 10:39 CST (ll :39 EST) . 

The ASI found that Pilot Didier had 16.7 duty hours and only 7.3 rest hours in the 24 

hour look back period hence violating the required 10 hours ofrest regulation 135.267(d) 

Even if Didier had not flown the first two legs of the flight he still would have been 

charged with duty hours since "dead beading" to perform flights under 135 is not 

considered rest time since he is still being required to do so by the operator. 

The Evidence obtained by the Agency proves that Trans North Aviation, LTD and Pilot 

Didier violated the required rest time of: 10 hours by almost three hours. Trans North 

failed to recalculate and prepare a new flight plan when changed conditions occurred due 

to a delay to determine if the flight from Palm Beach to Chicago Executive could be 

safely performed within the rest limitations imposed by 14 C.F.R. 267 (d) (Tr. pg. 132-

136). 

Because of the delay Trans North alleged that the flight could still be performed under 

the exception peo:nitted in 135.267(e) which states: 

14 C.F.R. § 267(e) When a flight crewmember has exceeded the daily flight time 

limitations in this secti.on, because of circumstances beyond the control of the certi:ficate 

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holder or flight crewmember (such as adverse weather conditions), that flight 

crewmember must have a rest period before being assigned or accepting an assignment 

for flight time of at least • 

(1) ll consecutive hours ofrest if the flight time is exceeded by not more than 30 

minutes; 

(2) 12 consecutive hours of rest if the flight time limitation is exceeded by more than 30 

minutes, but not more than 60 minutes. 

(3) 16 hours of rest if the flight time limitation is exceeded by more than 60 minutes. 

Tbis regttlation speaks to pilots who have exceeded the daily flight time limitations and 

the rest is proactive requiring additiooal rest afterwards. It does excuse the required 10 

hours of rest in required in l35.267(d). 

ARGUMENT 

When it was discovered that the patient pick up had been delayed it should have been 

determined at what point the flight could no longer be flown safely by Pilot Didier. i.e. at 

what time would the plarmed completion of the flight take place considering all of the 

factors and conditions. The Whitlow letter 4

(interpretation :2000) provides "look back" 

rest is computed by actual expected flight time and taxi bl time, based on the specific 

conditions that exist on the day to determine the planned arrival times for purposes of 

determining whether a flight should be comme11ced. Mr. Schaberg did not do any flight 

planning for the last leg of that flight which he is required to do when there are changed 

circumstances that require a new planned completion time ofthe flight. While the aircraft 

was still on the ground there were other options for the 135 operator could to take into 

consideration in. order not to violate the rest rule. On the ground there was no emergency. 

While the flight crew kuew the condition of the patient (critical) it does not relieve the 

135 operator or pilot from his duty and vigilance to comply with th.e rules. Once he found 

4 The Whitlow letter is an interpretatio~ of flight and duty times and rest requirements issued in a letter in 

answer to scenarios presented by airman to the FAA in 2000. Upheld in the 2001 ATA et. al v. FAA. 

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that there was a delay he had a duty to once again do a flight plan to determine if he could 

complete the assignment within the rules and if he could not to inform tbe patient or his 

wife that the flight could not be flown. 

Agency Exhibit A-2 the operation specifications Paragraph 008 b. states: 

"( 1) The certificate holder retains all responsibility for the operational control of 

aircraft operations, and thus for the safety of each flight conducted under this 

certificate and operations specifications, including the actions of all direct 

employees and agents of the certificate holder. 

(2) Tbis responsibility is not transferable to any other person or entity. 

(3) The certificate holder's responsibility for operational control supersedes any 

agreement, contract, understanding or agreement, either oral or written, expressed 

or implied, between any person or entity." 

Mr. Schaberg had the responsibility to ensure that the flight could be accomplished .in a 

safe marrner in accordance with the FAA 135 Regulations. He failed to do so. 

Specifically if when the information is factored in, it is known or should be known that 

anival based upon the actual expected flight time will not result in at least eight hour of 

look-back rest upon arrival, then. the flight may not depart (See Whitlow Letter). 

The operations specifications states the Elements of Operational Control in Paragraph d. 

These elements include (l)(b) Crewrnember Requirements including currently trained 

and or tested, qualified, and holds the appropriate airman and medical certificates, to 

conduct flights for the certificate holder under Part 135 including required rest. (Agency 

Exhibit A-2) 

There have been a continuous stream of .interpretation. of the fllgbt and rest time starting 

even before the infamous James Whitlow letter in 2000 but even that letter was 

challenged by ATA et. al v. federal Aviation Administration. That letter is based upon 

questionsregarding flight and rest times under 14 C.F.R. 12L471. The requests were 

made by a Captain Rubin who gave several scenarios au.d requested an answer as to 

whether the outcome ofthe sceuado would. be a violation of the tegulation. While the 

letter itself is about the 121.471 rules its decisions have beeu used to interpret the !35 

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regulations also. The letter was challenged in the United States Court of Appeals for the 

District of Columbia in ATA ct. a1 v. Federal Aviation Administration. In that opinion the 

Judge noted in a footnote (Page 2 footnote l) that 

"The flight time limitation rules applicable to "major scheduled air carriers" 

and "other airlines operating large transport category airplanes" are 

contained in Part 1:2.1 of the FAR. T11e flight time limitation rules applicable 

to scheduled air carriers operating airplanes of 30 or fewer seats and air taxi 

operations are contaip,ed in Part 135 of the FAR. The substance of the rules 

in Parts 121 and 135 is essentially the same and the rules are likewise 

interpreted". 

A number of interpretations of 135 rules have used the guidance provided in the 

Whitlow letter of 2000 to answer the questions posed. 

When the Aviation Safety Inspector was asked about one of the Legal 

Interpretations as to whether the delay of the patient was uoforeseeable she 

answered yes but that it was not foreseen beyond tbeir control. They could control 

whether their flight was going to depart or not. When asked on cross examination 

she was asked "And the condition of that patient may be a factor in whether or not 

to continue on with the flight or not, wouldn't it? A. As a pilot, I wouldn't, the 

passenger or the patient wouldn't be a determination if the flight should go or not." 

The testimony goes on with the ASI stating they should worry about the weather, 

time on duty fuel all that kind of stuff, not the passenger. She went on to say a 

passenger that critical. should be staying on. tb.e ground, not in an airplane (Tr. 

Pgs.!SS-170), We have to remember this ASI is someone with extensive knowledge 

and experience in aircraft. She has a double major college degree in aviation, 

Regional Airline pilot experience, Flight School pilot, Flight Instructor and ll years 

as a Safety Inspector. She knows the risks that are inherent in any flight. 

The interpretation that Respondent's Attorney was alluding to during this testimony 

was an interpretation letter to Mr. Kidd issued on Nov. 13, 2012 (after the accident) 

that asked about flight delays for a 135 cenificate holders, unscheduled cargo and 

passenger, and describes various delays for reason "beyond the control of the 

certificate holder" and asks if the flights can continue would they be violating 135, 

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267(d). The answer goes on to say that in a previous decision that the key to the 

applicability of 135-267(d) is in the final phrase 'planned completion' of the 

assignment. But then goes on to say th.e flight may nevertheless be conducted even 

though crew duty time may extend beyond 14 hours. So it talks about planned 

completion then reverts to "crew duty time" not rest time in a 24 hour period. Last 

sentence in the interpretation says "However we emphasize that in order for th.e 

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

original 2002 completion time must have been realistically scheduled." 

Was the last leg ever realisti.cally scheduled; -no- it was never scheduled at alL The 

one that Schaberg claims to have reviewed (Plan B) was reviewed on the 27111 , the 

day before this flight and it only had a built in cushion of one half hour. Realistic?-

no. After the two and one half hour delay, the planned completion time had to be 

recalculated" 

Shortly after this interpretation was released, another interpretation came out that 

gave even more clarity to the rest requirement. On December 19, 2012 (again after 

the flight in question) in a letter to Captain Peter WH!ums, the FAA stated: 

In a Legal Interpretation from Rebecca B. MacPherson to Patrick Ryan 

(February23, 2006) we stated, "prior interpretations applying section 

121.47l(g) to scheduled flight time limit in section 121.471 (a)(4) articulate 

the safety rationale that underpins the rule. The Agency has said that 

flights may exceed the flight time limits in a narrowly drawn context, 

namely: 

a The delay results from circumstances beyond the control of the carrier; 

and 

b. The carrier's original schedule is realistic . 

. . . . Thus the FAA emphasizes that the rule only applies to flight 

limitations. In 2000, the FAA "i.ssued a seminal interpretation known as 

the Whitlow Letter The Whitlow Letter clarified that the circumstancesbeyond-the-control-of-the-certificate"ho)der only applies to the scheduling 

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of flight time and does not apply to rest periods. Thus the Whitlow Letter 

determined the circumstances beyond the control of the certificate holder 

would not permit a flight crewmember to take off on a flight segment if the 

flight crewmember knows, prior to takeoff that completing the flight 

segment would infringe on a required rest period." See, Legal 

Interpretation :from Rebecca B. MacPherson to Mr. James Johnson (Nov. 

5, 2012). 

Anyone would be sympathetic to an elderly critically ill patient wanting to get 

closer to home. However we must consider the safety of everyone including the 

pilot, the other four souls on board the aircraft and the people on the ground if we 

are to operate safe system of transportation. 

Wherefore, the Federal Aviation Administration respectfully request the Judge to 

affirm a $7500.00 civil penalty against Trans North Aviation LTD. 

Respectfully submitted, 

~~b~;w~ Attorney 

Office of the Regional Counsel 

~AA Great Lakes Region 

Des Plaines, IL 60018 

(847) 294"7208 (direct) (847) 294-7313 (main) 

Fax(847)Z94-7498 

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CERTIFICATE OF SERVICE 

The undersigned certifies that the foregoing was served via overnight mail and fax to the 

Judge and facsimile and overnight mail to Mr. Barnett, Ill, Esq. Respondents Representative 

at the following addresses and facsimile numbers: 

Original and One Copy: 

One Copy: 

Judge Richard C. Goodwin 

Hearing Docket 

Office of Hearings M20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room El2-320 

Washington, D.C. 20590 

Fax 202"366-7536 

Charles R. Barnett, Ill 

Counsel for Respondent 

Barnett & Borth, LLC 

800 Waukegan Road, Ste. 200 

Glenview, IL 60025 

Fax (815) 356-7042 

Dated this 5th day of September, 2013. 

~-g;J~ FAA Great Lakes 
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u.s.~Jeportmenr 

OfllonsporrotiQn 600 tm:t'!:!pendenc~ A VI:!., SW. 

W:.u;l-lin~lon. D.C. 20591 

federal Avla!!on Adrniriotrallon 

NOV 2 0 2000 

Captain Richard D. Rubin, Chainnan 

Allied Pilots Association 

I 4600 Trinity Boulevard 

Suite 500 

Fott Worth, Texas 76155-2512 

Dear Captain Rubin: 

various 

This is in response to your recent letter to me, of September 26, 2000, concerning 

questions 

the pilot 

that have arisen as a result of the implementation of changes to 

reserve system at American Airlines. Your questions are based on the 

flight time and rest regulations that are applicable to domestic operations. 

The facts, situations and questions 

responded 

that you present are set forth below. ! have also 

to each question separately below. 

then 

Fact~: 

called 

A crew is assigned reserve standby duty commencing at 060(). Thl'"y are 

at 0900 to check in for a flight assignment at .1100. 

End ofR.ost ROJ?ott at Release at Sched. Rest Look-back Rest 

Day l 0600 l!OO 2!00 10:00 9:00 

Day2 0700 0700 1700 12:00 !0:¢0 

total 

In the 

ofless 

above example, assume that the crew was assigned to three segments with a 

than 8 hours of flying in ea.ch duty period and that the scheduled 

sehedule 

block-in of the last flight of each day is 15 minutes prior to release. This original 

does not require compensatory rest. 

1 note, preliminarily, 

"was 

that your letter states that I should assume that the flight crew 

duty period." 

assigned to three segments with a total of less than 8 hours of flying in each 

of 

I assume that by that statement you mean "less than a tota,l 8 hours 

Based 

scheduled flight time for the three flight segments, on both Day 1 and Day 2.'' 

on that assumption, the regulations 

minimum of9 

that I will apply are those that require a 

consecutive hours of scheduled rest (section l21.47l(b)(I)) 

may be 

that 

reduced to a minimum of 8 hours with a minimum of I 0 hours 

compensatory rest that must begin 110 later than 24 hours after the commencement 
10/17/2014 15:12 8472947498 FAA GLRC 

-2-

of the reduced rest (section 121 A71 ( c )(I )(the "reduced/compensatory rest" 

exception)). I have also made other assumpti om or clarifications that are 

described in my responses below. 

Situation 1: On Day !,.all goes according to plan on the ftrst two segments. 

However, after leaving the gate on the third segment, the crew encounters an 

unanticipated ground delay that results in only an 8 hour, 45 minutes look-back 

rest period upon termination at destination. 

I. Is compensatory rest now required upon landing? 

Response: You do not provide specific details on what is the t~Jmination 

time of the last flight segment. (I assume that by "tennination at 

destination" you mean the "tennination of the last flight segment.'") 

However, you state, above, that the flight crew would only receive an 8 

hours and 45 minutes look-back rest period, I therefore assume that the 

termination of that last flight segment, based on the other factual details 

you provide above, was at 2115. Looking back 24 hours from 21 I 5 on Day 

1 to 2115 on the day prior to Day I, one finds only 8 and three quarters 

consecutive hours of rest in the period 2!15 (of the day prior to Day 1) to 

0600 hours (on Day l)" 

The only situation in which a cettificate-holder may reduce the minimum 9 

hour required rest period is to utilize the ''reduced/compensatory rest" 

exception that allows certificate holders the flexibility to adjust sc)ledulcd 

rests in the event of!ate arrivals. Thus, a certificate holder may reduce the 

required scheduled rest so that one finds a minimum look-back rest of8 

consecutive hours on termination of the last flight segment, as well as 

provide the required compensatory rest. In your scenario, the certificate 

holder could reduce the required minimum 9 consecutive hours of 

scheduled rest to 8 and three-quarters hours. 1 However, the certificate 

holder must also provide the flight crewmember with a compensatory rest 

period of at least 10 hours that must begin no later than 24 hours after 

conunencement ofthe rc!duced rest period. In your scenario, that 

compensatoiY rest must begin at 2115 on Day 1, since the reduced rest 

begins at 2115 on-the day before Day 1. 

1 I note th~t the ccrtifi~te holder collfd red.ulle the .~;chedule<f rest to a minimum ofS hours. 

PAGE 04/17 
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2. In the case of a ground delay prior to take-off, would tbe crew and 

certificate holder be correct in using planned flight time and taxi-in time in determining the scheduled arrival time'? · 

Response: The FAA (equires the crew and the certificate holde( to use the 

actual expected flight time and taxi-in time, based on the specific 

conditions that exist on the day, to detennine the scheduled arrival tim.e for 

purposes of determining whether a flight should be commenced. for 

example, if an airline has published a flight time of three hours, but knows 

that the actual time the fiight will take is four hours because ofweathe(, 

ground delays, etc., then the FAA requires the canier to use four hours fur 

pm:poses·ofcalculating the arrival time. On th.e other hand, if the air carriet 

has scheduled a flight for three hours, but on the day in question, it is 

reasonable to conclude that flight time would only be two and a half hours, 

the carrier may use two and a halfhours to calculate the arrival time. 

3. If the ground delay continues to the point that the look-back rest is 

reduced below 8 hours, can the crew continue? If so, what are the rest 

requirements upon arrival? 

Response: The flight may not take off if the look'-back rest period is 

reduced to less than 8 hours. There must be at least an eight-hour lookback rest period. The eight-hour miliimum· reduced rest may not be further 

reduced under any circumstance. 

4. I fa ground delay, that would result in a late arrival that would not 

provide at least 8 hour.; of look-back rest is known by the certificate holder 

and/or crew prior to gate departure, can the crew depart legally based upon 

the published scheduled flight time? 

Response: No. As stated above, the F M requires the crew and tbe 

certificate holder to use the actual expected flight time and taxi-in time, 

based on the specific conditions that exist on the day, to detennine the 

scheduled arrival time for purposes of determining whether a flight should 

be conunenced, If the actual expected flight time is longer than the can:ier 

originally calculated in detennlning the scheduled aui.val time, then the 

actual expected flight time must be used in determining the look-back rest 

period. 

PAGE 05/17 
10/17/2014 15:12 8472947498 FAA GLRC PAGE 05/17 

-4-

Situation 2. On Day I, the crew is late inbound on the second segment which 

As 

results in not being able to leave the gate on the third and last segment on time. 

previous 

a result, the look-back would now provide 8 hours and 45 minutes rest in the 

24, based on the scheduled duration of the final segment. 

1. Is compensatory rest now required upon arrival? 

Response: Yes. Compensatory rest would be required upon arrival at the 

third destination. See the discussion in my response to question 1 of 

Situation 1 above. 

2. Ifthe crew were further delayed so that they could not depart to provide 

at least 8 hours of look-back rest upon arrival, could they depart legally? 

Response: No. If, when using the actual expected flight time, the cattier 

may 

cannot find at least 8 hours of look-back rest upon arrival, then the flight 

not depart, under the FAA regulations. See my response to question 3 

of Situation 1 above. 

which 

3. Ifthe~e is a known ground stop for the destination of the ftn.al segment, 

would result in look-back rest of only 7 hours and 45 minutes, can 

the crew legally leave the gate? If they are off the gate when the ground 

s!erp occurs, can they continue? 

Response: Ifit is known, or reasonably should be known, that the flight 

time will be extended because of ground stops at the destination airport, 

then this information must be included in determining the actual expected 

flight time. If, when this information is factored in, it is known or should 

be known that arrival based upon the actual expected tJ ight time wHl not 

result in at least 8 hours oflook-back rest, then the flight may not leave the 

gate. If the !light is away from the gate, but is not yet in the alr, then the 

flight may not take off. Ifthe ground stops at the destination airport do not 

become 

matter 

known until after the flight is in the air, the FAA will not, as a 

of enforcement policy, take enforcement action against the fligbt 

crcvvmember or the certificate holder for a violation of the regulations, 

provided the ground stops at the destination aitport are an unforeseen delay 

beyond the control of the certificate bolder and the full, required minimum 

reduced rest and the compensatory rest are given at the completion of the 

flight segment. 
10/17/2014 15:12 8472947498 FAA GLRC 

-5-

4. Should the scheduled arrival time in 3 above be based upon published 

scheduled flight time or flight planned duration (flight time plus taxi time)? 

Response: Arrival time in 3 above should be based on flight planned 

dru:ation, i.e., the-actual eiqJected flight time based on the conditions 

existing on the day In question. Also, I am not sure what you mean by 

published 

"published scheduled flight time." If you mean scheduled flight time as 

unrealistically 

in the Official Airline Guide (OAG), such flight time may be 

high. Sometimes a certificate holder might overestimate 

duration 

the 

able 

of a flight in order to have 'some cushion in the schedule and be 

block 

to report an on-time arrival. The actual realistic flight time (block to 

OAG. 

time) may be less than such "published scheduled flight time" in. the 

. 

5. Would the reason for the crew being late on the second flight (beyond 

!he control of the air canier or not) have any bearing on the rest 

requirement? 

"circumstances 

Response: I assume that your question is whether section 121.471 (g) (th.e 

beyond the corltrol ofthe ccttificate holder'' exception) 

excuses 

of 

a rest violation. No. That exception applies only to the scheduling 

flight time. 1t is inapplicable to, and does not excuse, a violation of a 

which 

rest requiremef!t. Also see my response to question 1 of Situation 1 in 

I discuss th.e use ofthe "reduced/compensatory rest" exception, 

pOipose, 

its 

and compliance with its tenns. 

PAGE 07/17 

the 

Situatiou 

morning. 

3: On 

As 

Day l, one of the can-ier's hubs is impacted by a weather system in 

that day out of 

a result, the carrier decides to delay all remaining departure times 

the hub_ 

less 

l. If a departure so delayed would result io a crew having look-back rest of 

than 9 hours, would compensatory rest be required? 

honrs, 

Response: 

would 

Yes. (l assume that the look-back rest, which is less than 9 

stili be at least 8 hours.) 

could 

2. If the delay resulted in a cxew having look-back rest of!ess than 8 hours, 

a crew legally depart? 

regulations. 

Response; No. The FAA would considef this flight to be in violation ofthe 
10/17/2014 15:12 8472947498 FAA GLRC 

Situation 4. The crew and air carrier know, prior to departure, 

or enroute weather 

that forecast winds 

normal duration published 

arc resulting in a flight plan for that segment that exceeds the 

in the carrier's schedules. 

flight 

1. Can 

plan 

the 

would 

crew legally depart if the scheduled arrival time based on the 

encroach upon or delay the required start of a 

.compensatory rest period? 

Response: 

the last flight 

I assume that the questions for Situation 4 relate to Day 1 and to 

segment. I am not sure what you mean by "published 

catrier's 

in the 

schedules." See my response to question4 

If you mean 

in Situation 3 above. 

en route weather 

that the crew and certificate holder know, prior to take-off, that 

expected, 

conditions will result in the flight taking longer than 

ofthe 

then my answer is as follows. Even if the eXpected termination 

last flight segment would allow a minimum 8 consecutive hoUJ:"S 

look-back 

take-off, 

test period, if the crew and certificate holder expect, prior to 

that the flight will infringe on the required start of the 

compensatory rest period, the crew may .not legally depart. Thus, although 

the actual flight time might exceed flight time limits and although 

exceedmg 

the "circumstances 

flight time limits in these circumstances would be allowed under 

tl~at 

beyond tile control of the certificate holder" exception, 

compensatory 

exception does not pe~mit an encroachment on reduced rest or 

rest below the minimums specified in the regulations. 

2. If the origi1tal cre>'Vl'nember's schedule did not require compensatozy 

re-st, would compensatory 

upon 

rest be required if the scheduled arrival based 

the flight plan information 

than 9 hours 

resulted in the crewmember having less 

of look-back rest upon arrival? 

Response: If, upon termination ofthe last flig]rt segment, 

was acrualiy 

the look-back rest 

less than 9 hours, then compensatory rest is required 

regardless of the scheduled arrival. 

3. If the original ctewmember's schedule did not require compensatory 

rest, would the crewmembsr be legal to depart ifthe scheduled arrival 

based upon the flight plan i:nfonnatlon 

less 

resulted in the crewmember having 

than 8 hours oflook-back rest upon arrival? 

Response: No. If, at the time of departure, it is calculated 

have 

that a pilot will 

segment, 

less than 8 hours of look-back rest upon tennination of the last flight 

then the flight may not take off. The intention to give 

PAGE 08/17 
10/17/2014 16:12 8472947498 FAA GLRC 

-7-

compensatory 

is known 

rest may not be used to permit a pilot to take a flight when it 

at the beginning of the flight that the pilot will have less 

than 8 hours of look-back rest upon termination of the last flight segment. 

I hope these responses will be helpful to you. 

Sincerely, 

James W. Whitlow 

Deputy Chief Counsel 

PAGE 09/17 
10/17/2014 15:12 FAA GLRC PAGE 10/17 

u.s. Oeportme~t 

of Tronspor!atloll 

Federal AVIation 

Administration 

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

Washington, D.C. 20591 

DEC 19 2012 

Captain Peter Willums 

222 Karen Ave., Unit 604 

Las Vegas, NV 89109 

This letterresponds to your request for a legal interpretation concerning 

of 14 C.F.R. 

the application 

may accept 

§ 121.471(a)(4), which provides in pertinent part tba.t IJO flight crewmember 

other commercial 

an assignment for flight time in domestic scheduled air tra~Jsportation o.r in 

flying if that crewmember's total flight time in all commercial 

will exceed 8 hours 

flying 

with the application 

between 

of 

required rest periods. In this context, your letter also deals 

the circumstanccs-beyond-thc-control-of-the-certificatc-holder 

rule found in § 121.471 (g) as discussed below. 

Rapids 

You question a situation where you were scheduled for a Las Vegas (LAS)- Grruld 

were notified 

(GRR) round-trip of7 hours and 35 minutes. Three ho~m> prior to departure, you 

addition of an 

that 

alternate 

the weather at GRR at the scheduled arrival time would require the 

in LAS, 

airport to the dispatch release. Due to high ambient temperatures 

performance 

the additional fuel required for the alternate would exceed the take-off 

Moines (DSM). 

capability 

The 

for tbc operation. As a result, dispatch added a fuel stop in Des 

recalculated 

due to the fuel stop. 

round-trip flight time would be 8 hours and 20 minutes 

exceed 

You initially refu.sed th.e assignment as given by the dispatcher, saying that it would 

the limitation 

later from 

in. § 121.47l(a)(4). You then received a phone call a few minutes 

conditions 

the Director of Operations, who relayed his position that the weather 

§ l21.47l(g}, 

in GRR 

which 

fell 

provides: 

within the "circumstances beyond the control" el(ception found in 

(g) A flight crev.mem.ber is not considered 

el(cess of 

te> be scheduled for flight time in 

flight tirue limitati.ons if the flights to which he is assigned are 

scheduled 

beyond 

and non:aaliy tenninate within the limitations, but due to circumstances 

are not 

the control of the certificate holder (such as adverse weather co1.1ditions), 

scheduled 

at the time of departure expected to reach their destination within tbe 

time. 

After 

Operations, 

additional 

who 

discussions with your Chief Pilot and the Senior VP of Flight 

caused by 

also told you that the tlight would be legal based on the circumstances 

the weather in GRR, you accepted a~Jd operated tbe flight, which resulted in an 
10/17/2014 15:12 8472947498 FAA GLRC PAGE 11/17 

operated 

actual round-trip 

a legal 

time of 8 hours and 17 minutes, For the reasons explained below, you 

flight 

In a Legal Interpretation from Rebecca B. MacPherson 

2006) we stated, 

to patrick M. Ryan (February 23, 

flight 

"(p)rior interpretations applying section 121.4 7l(g) to the scheduled 

rule. The 

tim.e 

Agency 

limit in section 12l.47l(a)(4) articulate the safety rationale fuat underpins tbe 

drawn context, 

has said that flights may exceed the flight time limits in a narrowly 

namely: 

a. The delay results from circurostances beyond tb.e control of the carrier; and 

b. The air earner's original schedule is realistic. 

See, 

Counsel, 

Feb. 

Regulations 

9, 1993 Letter to DavidS. Parent, from Donald P. Byrne, Assista:ot Chief 

and Enforcement Division [1993-3]." 

time 

Thus, 

if 

"an 

the 

air 

air 

earner will not be found to be in violation of the limits on scheduled flight 

carrier's schedule is based on realistic assumptions about the circumstances 

of the flight, and the delay 

/ 

is due to circvmstances 

ca:rrier's control." 

truly unforeseeable or beyond the ai:r 

See, Legal Intexpretation from R&beccaMac!'herson 

(March 

to Kevin. McCabe 

I 0, 2011) and cases cited therein1

air traffic control 

• The Agency generally considers delays due to 

qualify as circumstances 

(A!C), adverse weather, or mechanical problems, as the incidents that 

by application 

beyond the control of the carrier and justify the relief afforded 

of the rule. 

The FAA emphasi7.es 

FAA "issued 

that the rule only applies to flight time limitations. In 2000, tbe 

clarified 

a seminal interpretation known as the Whitlow Lettei. The Whitlow Letter 

that the circumstances-beyond-the,contro!-of-the--certificate-holder 

§ 121.47l(g) applies 

exception in 

periods. Thus, 

only to the scheduling of flight time and does not apply to rest 

the Whitlow Letter dete:rmined 

the certificate bolder would 

that circumstances beyond the control of 

not permit a llight crewmember 

segment 

to take off on a flight 

if the flight crewmember knows, prior to takeoff, that completing 

segment would 

the flight 

irrli:iugc ou, a required rest period." See, Legal Interpretation 

Rebecca B. MacPherson 

from 

to Mr. James Johnson (Nov, 5, 2012). 

Based on your letter, the circumstances son:onnding 

round-trip 

the rescheduling of the LAS-GR:R. 

flight seem to present an isolated, unanticipated weather-related 

exceeding 

reason for 

the scheduled flight time for the LAS-GR:R. round-trip. Although the high 

1 

of 

See 

flights 

e.g. 

during 

Legal Interpretation 

a single month 

1990-25 (accepting United's statistics showing that approximately 67 percent 

that were completed within the scheduled flight time, as representative of 

realistic scheduling); Legal Interpretation 

actual flight times for winter and 

!991·8 (<JXPlainingthat after an audit of United's scheduled and 

within the scheduled 

summer Pacitlc operntions, ~ app<ared that United's flights operated 

demonstra,ted that United 

time 

was 

approximately scheduling 

85 percent to 9$ pcrcent of the time, which in the agency's view, 

realistically). 

2 Lette, to Captain Richard D. ~ubin .from James W. Whitlow, Deputy Chief CQunsel (Nov. 20,2000). 

2 
10/17/2014 15:12 8472947498 FAA GLRC PAGE 12/17 

ambient temperatures in LAS impacted the operation of the flight, the reason fo~ that 

impact was the additional fuel required by the designation of an alternate airport due to 

the weather in GRR. There are no facts presented in your letter to indicate that the flight 

frequently operates in excess of the scheduled time. Also, your letter does not allege that 

knew 

any rest 

prior 

requirements 

to takeoff on 

were 

each 

infringed by the flight in question. As such, so long as you 

segment of the scheduled 

would not be 

flight that your rest requirements 

infiinged, under§ 121.471 (g), you would not be considered 

for flight time in excess of 

to be scheduled 

flight time limitations ifthe flight would normally operate and 

terminate within the limitations of§ 12l.47l(a)(4). 

We appreciate your patience and trust that the above responds 

need furth.er assistance, please 

to your concerns. If you 

prepared by Robert H. Frenzel, 

contact 

Manager, 

my staff at (202) 267-3073. This letter h!lS been 

Colll.lsel and coordinated with 

Operations Law Brooch, Office of the Chief 

the Air Transportation 

of Flight Standards Service. 

and Aircraft Maintenance Divisions 

Sincerely, 

Rebecca B. acPherson 

Assistant Chief Counsel for International 

Law, Legislation and :Regulations, AGC-200 

} 
10/17/2014 15:12 8472947498 

Jason M. Kidd 

7201 Northview Drive 

Brookfield, OH 44403 

Dear Mr. Kidd: 

FAA GLRC 

Office of the Chfef Caunsgr 800 lnds!Jentlence Ave., S.W. Washington, D.C. 20591 

PAGE 13/17 

This 

13 5 operating 

is in response 

rules. 

to your July 12, 2012\etter posing a number of questions about 14 C.P.R. part 

Flight, Dutv. and Rest Questions 

Qtlestion 1: Phone Calls DIU'ing a Rest Period 

For your first question, you ask whetbeJ; a certificate bolder can require a ffight crewrnember 

answer a phone call from 

to 

the certificate holder during a rest period. 

During a rest period, a crewm.ember must be free from all restraint by the certificate holder .

1 

crewmember is required 

If a 

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

not free from all restraint. Thus, 

is 

that flight crewmember is not on a valid rest period. 

Accordingly, a certificate holder 

· 

cannot require a flight crewmember 

during a rest period. 

to answer a phone call 

holder 

We note, 

to initiate 

however, 

one 

that the FAA has a "one phone call" policy that ugenerally allows a certificate 

phone call during (a] crewmember's rest period.~2 

volun:ta~ily 

If the crewmember 

and brealdng 

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

the rest period. 3 However, we emphasize 

policy to apply, 

that in order for the "one phone call" 

but must instead 

the 

rulSWer 

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

the phone on his own, volition. 

Question 2: ll:ffect of Delays 

For 

unscheduled 

your next 

cargo 

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

holder schedules 

and passenger ope~ations pursuant to 14 C.F.R. § 135.267(d). That certificate 

its flightcrew to be in rest from 2200z until 0800z. the flightcrew 

scheduled 

is then 

to start a duty assigoment 

duty assignment consists of 

that is supposed to begin at 0800:~: and end at 2100z. The 

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

1 

Letter to GleDn Jimenez ft= RebeceaMoCl'llorson, Al:sistant Cb.iefCounseliOr Regulations (June 9, 2011). "M . 

'Id. 

l 
10/17/2014 15:12 8472947498 FAA GLRC 

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

depart at 13 00>.:; and 

to 

the fiual segment is scheduled to depart at l800z. 

PAGE 14/17 

The 

You 

delays 

then list 

specified 

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

fligbl: delays due 

in your letter consist of (1) late-arriving passengexs or cargo; (2) en-:t:oute 

takeoff clearance 

to low visibility; (3} a diversion due to a mechanical fullure; and ( 4) a delayed 

finishing its duty 

from air intffic control. -Each of these delays would result in the flightcrew 

violating the rest 

clay after 2100z. You ask whether these delays would result in the llightcrew 

ofits originally-scheduled 

requirement of § 135 .267( d) lf that flightcrew finishes all three flight segments 

duty day. 

Subsection 

hours of rest 

l35.267(d) 

during 

requires that an assignment "must provide for at lel!.'lt 10 consecutive 

the 2-hhour period that precedes the planned completion time of the 1 

assignment." In, a previous interp(etation, the FAA emphasized 

applicability of§ 

that "[t]he key to the 

l35267(d) is in the final phrase 'plann~d completion 

assignment.'''"' 

time of the 

In that interpretation, the FAA concluded that if a crewmember 

scheduled 

is realistically 

for reasons 

to 

beyond 

receive 10 hours of rest in a 24-hour period, then. "if the original plmming is upset 

conducted, even 

the control of the [certificate holder}, the flight may nevertheless be 

though crew duty time may llXtend beyond 14 houxs" in a 24-hour period.5 

The 

adverse 

FAA 

weather 

has previously 

could constitute 

stated that delays due to air traffic control, mechanical problems, or 

circumstances 

holder. 

that are beyond the control of the certificate 6 

could also 

In 

constitute 

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

circumstances that are beyond the control of the certincate holder.

Accordingly, 

7 

the delays specified 

visibility, mechanical 

in your question (late-arriving passengers or cargo, low 

failure, and delayed takeoff clearance) could constitute circumstances 

are beyond the control of 

that 

the certificate holder that would pennit the tli.ghtcrew 

day after the originally-planned 

to finish its duty 

2100z completion time. H:owever, we empbasize 

for the circumstances-beyond-the-control-of-the-cerlificate-holder 

that in order 

21 OOz completion time must 

doctrine to apply, the original 

have been realistically scheduled. 8 

N avigatjon and QJ.art Databases 

Questions 3 and 4: PiJot,Pedormed Updates on Avio11ic Devices 

Two questions you pose concern pilot pedOrmed Updates to aetonautical 

devices. First you ask whether 

iPionnation avionic 

and/or FMS navigation database 

the pilot of an aircl:aft operated under part 13 5 may update a GPS 

Second, you ask whether 

(such as the Collins FMS-3000, GNS500 series or G 1 000). 

Multifunction Display, 

the same pilot may update the charts displayed electronically on a· 

such as the Jeppesen approach chm;ts on the Collins Proline 21. Because 

4 

Letter to Kevin Wilson from Donald P. B)lrne, Assistl!nt ChlcfCOllliSel ofRegulatiollll and Enforcement Division 

)Mar. 30, 1992) (quoting and emphasizing a portion ofthe regulatory 

Id. See also Lctrer 

tel<:! from § l35.267{d)). 

to M:dwss from Donald P. Byrne (Aug. 30, 1993). 

' See Letter to William E. Banks, Jr. from R.:be= MaoPhoTSon {Mar. 18. 200.9) (citing pr.Wous legal 

interpnotations). 

; Bee Letter to Kevin Wilsouand Letter to MJ:. Ros.'. 

See Letter to Kevio WilsOll. 

2 
10/17/2014 15:12 8472947498 FAA GLRC PAGE 15/17 

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

these questions at this time. fustead, we will answer these questions in a sepruate letter once the 

pertinent rulen1aking bss concluded. 

Weight and Ba1ance Computations 

Question S: Load Manifest Duplicate 

m;mifest 

For your 

before 

neld question, 

eaclJ. takeoff. 

you state 

You 

that 14 C.F.R. § l35.63(c) requires you to prepare a load 

ask whether a copy of this load l!Uini:fest must be left with the 

certificate holder and/or departure aitport persowel or whether it is sufficient to keep the only 

copy of the load manifest on board the aircraft. 

manifest 

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

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

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

operations 

and the certificate 

base, or 

holder 

at another 

must then keep the load manifest for at least 3() days at its ptincipa1 

location used by the certificate holder and approved by the FAA. 

When§ 135.63 was originally proposed it included arequiren1entthatthe 

arrange at the takeoff 

pilot-in-command 

airport for a copy of the load, manif'eSt to be retained in a suitable place at 

that aliport.9 However, this part of the proposed rule was withdrawn in response to coJDDJ.ents. w As such, § 135.63 does not specify what must be done with the duplicate ofthe load manifest. 

While§ l35.63(d) does not specify how the duplicate copy of the load manifest should be 

handled, the FAA advises 'certificate holders to incorporate procedures 

manuals for the disposition 

in their operations' 

of the duplicate copy. 11 The certificate holder should woJ:k 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 

creWlllembers, an.d aiwraft weigl:rt 

regarding passengers, 

earned on-board the aireraft 

and lmlance if there is an accident and the load manifest 

is destroyed. 12 

Enforcement Action 

Question 6: Manual that Violaks FAA Regulations 

For your next question, you pose a scenario 

mallllal containing procedures 

in which an operntor bas submitted a required 

that violate FAA regulations. You ask wheth.er in that scenario the 

FAA would hold :o:esponsible: ( l) the certificate holder for submitting and enforcing improper 

procedures; and (2) the cre-wmember for complying with company procedures that violate FAA 

regulations. 

' 

9 

10 

See 42FR43490, 435!5 (Aug.29, 1977). 

Soe 43 Fed. Reg. 46742,46764 (Oct. !0, 1978); Lclt<!:to Stanley L.Bernstein from ~becca MaoPh=on (Nov. 

13, 2009); Letter to Nettie Dickerson, from Edword P. Faherman, Acting Assistant ChiefCoUIISel (Nov. 5, !980). " See I..ettor to Stanely Bernstein. u Jd. 

· 

3 
10/17/2014 15:12 8472947498 FAA GLRC PAGE 15/17 

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

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

additional details concerning the company procedures that violate F .1\.A regulations. 

Operation Specifications C055 and A097 

You also ask a number of questions about operation specifications 

Your questions about 

(OpSpecs) C055 snd A097. 

these OpSpecs lU"e policy questious, and as such, we have refexred them to 

the AFS-200 program office. 

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

Viola 

further 

Pando 

assistance, 

and Alex 

please 

Zektser, 

contact 

Attorneys, 

my staff at (202) 267·3073. This response was prepared by 

Counsel, and coordinated with 

Regulations Division ofthc Office of the Chief 

the Air Transportation Division of flight Standards Semcc. 

Sincerely, 

Rebecca 

P-r~ 

B. MacPherson 

Assistant Chief Counsel for Regulations, AGC-200 

4 
PAGE 17/17 

10/17/2014 15:12 8472947498 FAA GLRC 

CERTIF1CATE OF SERVICE 

The undersigned certifies that the foregoing was served via overnight mail and fax to the 

Judge and facsimile and overnight mail to Mr. Barnett, IU, Esq. Respondents Representative 

at the following addresses and facsimile numbers: 

Original and One Copy: 

One Copy: 

Judge Richard C. Goodwin 

Hearing Docket 

Office of Bearings M20 

1200 New Jersey Avenue, S.E. 

East Building Ground Fl.oor 

Room El2-320 

Washington, D.C. 20590 

Fax 202-366· 7536 

Charles R. Barnett, HI 

Counsel for Respondent 

Barnett & Borth, LLC 

800 Waukegan Road, Ste. 200 

Glenview, IL 60025 

Fax (815) 356-7042 

Dated this 5th day of September, 2013. 

~}li~ 

FAA Great Lakes