### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATBE

# cEI 

# vED FEDERAL AVIATION ADMINISTRATION

Application of:
TRANS NORTH AVIATION, LTD.
for the Award ofFees and Expenses Under the Equal Access to Justice Act ) 

### ) ) ) ) ) ) 

## JUN 10 2015 

# HEARING DOCKET

FDMS No. FAA-2014-1117



# ______________________)

COMPLAINANT'S ANSWER TO THE APPLICATION FORTHE AWARD OF ATTORNEY FEES AND EXPENSES UNDERTHE EQUAL ACCESS TO JUSTICE ACT
Pursuant to section 14.22 ofthe Rules Implementing the Equal Access to Justice Act of 1980, 14 C.F.R. 

### § 14.22 (20 15), the Complainant files this answer to the application for fees and
expenses in this matter under the Equal Access to Justice Act of 1980 (EAJA). Prior counsel for
the Complainant previously circulated to the Judge and to the Applicant her assessment ofthe
deficiencies in the application. That document is appended to this answer as Attachment A. 

### The present document summarizes and expounds onthe EAJA application's previously identified
deficiencies.

-----------------------t;- 

### The Applicant's key exhibit calculating-the fees and expenses ineltldes t\vo
mathematical errors. Application for Award ofFees and Expenses, Exhibit 24. The initial error is that the Applicant rounded upward the reported attorney work hours from 195:51 to 196. Compare id. with Application for Award Fees and Expenses, Exhibit 22 at 13. The secondary
and compounding error is that Applicant's addition ofthe requested fees and expenses is simply
wrong. Application for Award ofFees and Expenses, Exhibit 24. As a result, even before

### 2

subtracting the fees and expenses erroneously claimed, the Applicant's request requires
recalculation.

The Applicant's claim of 195.85 hours at a rate of$192 per hour equals $37,603.20. The
addition to this sum ofthe Applicant's claimed expenses of$600.89 brings the Applicant's total adjusted request to $38,204.09.

2. The application seeks fees and expenses that are not permitted under the applicable regulations. Section 14.05(e) ofthe Federal Aviation Administration rules implementing EAJA expressly provides that "[f]ees may be awarded only for work performed
after the issuance ofa complaint.

..." 14 C.P.R.§ 14.05(e). The Complainant filed the complaint inthis matter on April 11, 2013. A copy ofthe complaint is appended to this answer

as Attachment B.
Despite the rule's clarity, the application enumerates over three pages offees that predate
the filing ofthe complaint inthis matter. Application for Award ofFees and Expenses,
Exhibit 22 at 1-4. The total amount oftime that the Applicant claims before the filing ofthe complaint is 37:20, which when multiplied by the rate of$192 per hour, has a value of $7,167 36 In addition, the Applicant claims expenses totaling $25.04 that predate the filing of
the complaint. Accordingly, the Applicant's adjusted request identified in section one, above,

must be reduced by $7,192.40 as matter oflaw.

3. It

### is well settled that administrative agencies have the discretion to use a formal adjudicatory process to announce new principles, including the interpretation ofagency regulations. National Labor Rel. Bd. v. Bell Aerospace Co., 416 U.S. 267, 290-95 (1974)(citing

### 3



### Securities Exchange Comm'nv. Chenery Corp., 332 U.S. 194 (1947); National Labor Rei. Bd. v. Wyman-Gordon Co., 394 U.S. 759 (1969)). See also Union Flights, Inc. v. Administrator, Fed. Aviation Admin., 957 F.2d 685, 688-89 (9th Cir. 1992). "The views expressed in Chenery II and Wyman-Gordon make plain that the [National Labor Relations] Board is notprecluded from announcing newprinciples in an adjudicative proceeding and that the choice between rulemaking
and adjudication lies in the first instance within the Board's discretion." Bell Aerospace, 416
U.S. at 294. In such instances, any concern regarding a new interpretation's adverse effect on a party due to reliance on past agency pronouncements can be alleviated through a waiver ofthe
sanction for the underlying conduct. Bell Aerospace, 416 U.S. at 295.

In the present matter, on December 23,2010, the FAA published in the Federal Register a Notice ofProposed Interpretation ofthe regulation underlying this case. 75 Fed. Reg. 80,746 (Dec. 23, 2010). A copy ofthe notice is appended as Attachment C. The FAA's Notice of Proposed Interpretation was fully consistent with the interpretation of 14 C.P.R. 

### § 135.267(d)
that the Complainant propounded inthis case. In light ofthe Notice ofProposed Interpretation and the U.S. Supreme Court's holding in Bell Aerospace, the Complainant had the legal authority to initiate and pursue this case under the legal theory that the Complainant advanced.
However, the Complainant was no longer substantiallyjustified in pursuing this case when the FAApublished its withdrawal ofthe Notice ofProposed Interpretation on November 7,
2013. A copy ofthe Withdrawal ofthe Notice ofProposed Interpretation is appended as Attachment D. As ofthat date, at Congress' direction, the FAA abandoned its effort to implement the interpretation underlying the Complainant's case.

### 4



### The total amount oftime that the Applicant claims before the FAA's withdrawal ofthe
Notice ofProposed Interpretation onNovember 7, 2013, is 107: 11, which when multiplied by
the rate of$192 perhour, has a value of$20,579.20. In addition, the Applicant claims expenses totaling $494.64 that predate publication ofthe withdrawal ofthe FAA's proposed interpretation. Accordingly, the Applicant's adjusted request, in addition to the reduction set forth in section
two, above, should be reduced by an additional 

### $13,881.44

CONCLUSION
For all ofthe foregoing reasons, the Applicant's corrected application amount, totaling $38,204.09 in attorney fees and expenses, should be reduced by a cumulative amount of $21,073.84. Therefore, the total amount awarded to the Applicant under EAJA should be no

more than 

### $17,130.25.
Respectfully submitted, 

# cJ

James W. Tegtmeier Deputy Regional Couns 1, AGL-7A**------------------------rQWfflfi~ce~orf~meltegTii~on~aml~C~o~unnws~el~---------------**



### Dated: June 5, 2015 Federal Aviation Administration 2300 E. Devon Avenue Des Plaines, IL 60018 (847) 294-7058

### 5

CERTIFICATE OF SERVICE
I hereby certify that on this date I have sent by U.S. mail, postage prepaid, certified return-receipt requested, two copies ofthe Complainant's Answer to the Application for the
Award ofAttorney Fees and Expenses Under the Equal Access to Justice Act in the Application
ofTrans North Aviation, Ltd., FDMS DocketNo. FAA-2014-1117, addressed to:

and to: The Honorable Richard C. Goodwin, ALJ Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, SE (Ell-310) Washington, DC 20590
Paul R. Borth, Esq. Barnett & 

### Borth, LLC Suite 200 800 Waukegan Road Glenview, 

### IL 60025 In 

### addition, I hereby certify that on this date I 

### have sent by U.S. mail, postage prepaid,
certified return-receipt requested, the original and two copies ofthe foregoing document to: Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591
Attn: Hearing Docket Clerk, AGC-430 ·-·--··----·-·--------------"W"'litDur

# wngn.-t**Bl'hTuiffild"'i"nn-g,"'3"'u'"it"'e-42~W\I"'jHQlfQiflQ----------**



### Dated: June 5,

## • 

# L U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

# ----------------1@-t;,c,.........CQpy IN THE MATIER OF TRANS NORTH AVIATION, LTD FAA DOCKET NO. (12-GL-03-0012) FDMS NO. (FAA-2014-1117) (formerly 

### FDMS No. 2013-0046) (Civil Penalty Action)

ADlVIINISTRATOR'S RESPONSE TO APPLICATIONFORAWARD OF
ATTORNEY'S FEES AND EXPENSES UNDER
THE EQUAL ACCESS TO JUSTICE ACT
INTRODUCTION -------------'fHH&Nefth-Avi:a!i:frn;-Hd. (hereinafter Trans North) is <moo-demaud 

### air taxi 

### that operates under

a C.P.R. part 135 Air Carrier Certificate 

### with required Operation Specifications. 

### Mr. Ronald Schabergis the President and at all the times mentioned herein the Director of Operations for Trans North. The case involved the violation of 14 C.F.R. part 267(d).

An aircraft owned and operated by Trans North Aviation Crashedjust short ofthe runway at Chicago Executive Airport on November 28, 2011 at 10:39 p.m. killing three people. An investigation into the crash was performed. The Aviation Safety Inspectorassigned to investigate the accident gathered the evidence at the scene and reviewed the evidence for 

## EXHIBIT 1 

# I Aviolations for the Federal Aviation Regulations that governed Part 135. Evidence that Inspector gathered from the scene and afterward indicated that the pilot violated the required rest period when he flew the aircraft from Palm Beach, Florida to Jessup, Georgia for fuel stop and then to Chicago Executive Airport {TR. Pgs. 65-66).

On or about November 26,2011, Mr. Schaberg, accepted an assignmentto provide an air ambulance flight to transport a hospital patientfrom West Palm Beach, Florida Airport (airport identifier KPBI) to Chicago Executive Airport (identifier KPWK) in Illinois. After receiving the assignment he contacted one ofTrans North's pilots on November 26, 2011, Mr. Didier, and gave him verbal instruction to fly aircraft N4599F a Cessna Model CE 340to 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).
The initial plan included a flight to West Palm Beach on November 27, 2011, an overnight stay, fuel stops and picking up and transportingthe patientto begin a late morning flight to Chicago Executive Airport on November 28, 2011. Schaberg identified this as his plan "A" for the trip during his testimony (Tr. pgs. 218-226) 1

.
Due the original aircraft having a malfunction, another aircraft had to be provided for the air ambulance flight. Mr. Schabergtestified that he once again reviewed the planning ofthe flight since it was to occur in the afternoon instead the morning. He had no evidence that he did that and he gave verbal planning instructions to the pilot Didier.
Otherthan his testimony, Mr. Schaberg had no other proofthat he had reviewed these flight plans or

**-··-------i:hat"they-tTa:lt~-ciTeLkeO.I'Ie** testtflecttnanneTngnnouTff11i•sare1Ynown smce afffieenaortlie-

- - - planned completion ofthe assignment Pilot Didier would have still met his 10 hours of rest.There would have been 10 1/2 hours of rest time atthe completion ofthe assignment (Tr. Pgs. 224-22.9). Mr. Schaberg knew at that time thatthe rest time requirement of 135.267(d) was being cut close (by a half

1 During this testimony Mr. Schaberg was referring to proposed Exhibit R-I which was a printed recreation ofwhat he said he did to prepare for the flight under "Plan A" howeverusing a computerthis document was prepared on July 21, 2013. The document was prepared in summer weather during daylight; the flight in question to took place at the end ofNovember 2011 after sunset, in cold winter weather. The Judge accepted it into evidence for a limited purpose over objections by the Administrator. The Judge statedit would be usedto only show the procedures required to prepare a flight plan. Mr. Schabergfailed to print out either the flight planfor Plan A or planB prior to the actual fligiht. 2hour) and that almost any delay in this flight would result in aviolation ofthe 10 hour rest period. Once the ambulance was late in arriving at the airport Mr. Schaberg was required to
After an lnf"rmal Conference, Notice and Final Notice of Proposed Civil Penalty the Agency went forward with an Order Assessing a Civil Penalty for $7500.00. Trans North appealed the Order and the Agency filed its Complaint April11, 2013 then Trans North filed it Answer on April24, 2013 admitting all allegations except one. A hearing was held on July 23, 2013.

The Administrative Law Judge issued his decision on September 25, 2014 finding that Respondent violated 14 C.F.R. Section 135.267(d) which states that each assignment under paragraph (b) ofthis section must provide for at least 10 consecutive hours of rest during the 24 hour-hour period that precedes the planned completion time ofthe assignment and assessed a $7500 Civil Penalty.

Trans North Aviation Appealed the Administrative Law Judge's decision and the Administrator withdrew the Complaint with prejudice.


### The Equal Access to Justice Act (EAJA) requires the government to pay certain attorney fees and costs to a prevailing partyunless the government establishes that its position was substantiallyjustified or that special circumstances would make an award offees unjust. 5 U.S.C.§ 504(a)(l).



### THE APPLICABLE LAW

----------- -----------------Foftlie-Administi3tor's position to 

### be found substantially

### justified it 

### must 

### be reasonable in both fact and law, i.e., 

### the facts alleged must have a reasonable basis in truth, the legal theory propounded must be reasonable, and the facts alleged must reasonably support the legal theory. 

### US. Jet v. Administrator, NTSB Order No. EA-3817 at 2 (1993); 

### Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541 (1988). This standard is less stringent than that applied at the merits phase ofthe proceedings, where the Administrator mustprove his case by a preponderance ofthe reliable, probative, and substantial evidence. Accordingly, the FAA's failure to prevail on the merits does not preclude a fmding that its position was nonetheless substantiallyjustified under

3

### the BAJA. See US. Jet v. Administrator 

### at 3; Federal Election Commission v. Rose, 

### 806 F.2d 1081, 1087 (D.C. Cir. 1986).

The evidence inthis case shows that the Administrator was substantiallyjustified inbringing this action. Pursuant to 5 U.S.C. 504(a)(l), attorney fees and other expenses should not be assessed against the United States where the Agency's position as a party to the proceeding was substantiallyjustified. The Board, in McCrary v. Engerr, 5 NTSB 1235 (1986), stated that the question of whether the Administrator had "substantialjustification" for bringing his action is determined on the basis of the "administrative record, as a whole." Citing, United States v. 2,116 Boxes ofBoned Beef, 726 F.2d 1481 (lOth Cir., 1984), the Board in McCrary referred to the above noted three-prong test to assist in determining "substantialjustification" based upon the administrative record as a whole.

Similarpronouncements are made in NTSB decisions. 2 

### In 

### Caruso v. Administrator, 

### NTSB OrderNo. EA-4165 at 6 (May 25, 1994), the Board states "In

### evaluating the government's actions at the BAJA stage, the adjudicating authority need only find that it 'acted slightly more thanreasonably, even though not in compliance with substantive legal standards applied at the merits phase."' Federal Election Commission v. Rose, supra.
The standard, however, should not be read to raise a presumption that the Government's position was not substantially justified, simply because it lost its 

### ----------==-Ntlf;-ift-facl;-®es-the-standafd require 

### the GovernmeAt to es!ablish-lllat-ffs-------------- decisioll to litigate was based 011 a substa11lial p10babilily of 

### p1 evaili11g. [H. R. Rep. No. 96-1418, 96th Cong., 2d Sess. 11 (1980); S. Rep. No. 96-253, 96th Cong., 1st Sess. 7 (1979)] (Emphasis added.) 

### The Board does not separately examine each allegation ofthe government's case to determine whether it is substantiallyjustified. Rafter v. Administrator, 

### NTSB Order No. EA-4313 at 5 (February 10, 1995). Rather, the examination mustbe broadly focused. Wieland & 

### Perry v. Administrator, 

### NTSB OrderNo. EA-4406 (November 30, 1995). Thus, the government's case

2 See e.g., Application of Crocker, NTSB OrderNo. EA-4750 (1999); Application of Finnell, NTSB Order No. EA4427 at 4 (March 6, 1996); Wieland andPerry v. Administrator, NTSB Order No. EA-4406 (November 30, 1995) 

### 4

### must be examined as awhole, and eachpositiontaken bythe government must be viewed in light ofhowit affectedthe case as a whole. Anunreasonable position on an inconsequential aspect ofthe case would not render the whole case unjustified, but an unreasonable position on a very narrowpoint might ifitwas an important point. 

### Rafter, supra.
ARGUMENT
The defense ofthis case was basedupon an interpretationissuedNovember 13, 2012, afterthe FAA issued a Notice ofProposed Civil Penaltythat was issuedto Trans North onJuly 12, 2012 and after an.Informal Conference was held. The Kidd interpretation was started by a request for

an interpretation sentto the Office ofChiefcounsel onJuly 12, 2012. It 

### asked several questions regarding 14 C.P.R. 267 (d). Question 2: Effect ofDelays: which set up a scenario ofa flight

crew that was scheduled to start a duty assignment thatis supposedto begin at 0800z and end at 2100z, (14 hours) with three different flight segments, each ofwhich is scheduled to be 3 hours long. 

### (9 hours offlight time). The scenario then sets up a number ofdelays that are beyond the control" ofthe certificate holder and states they may nevertheless be "conducted" eventhough

crew duty time may extendbeyond the planned completion ofthe final flight (more than 14 hours). Thefmal warning about the doctrine is that the original completiontime planned 

### must have been realistically scheduled as stated in another earlier interpretation.3



### In orderto use this interpretation as a defense the planned completiontimemust be realistic. In this case however itwas not. The plannedtime only allowed for a halfhour ofdelay before the flight encroached on the 

### 10 hour rest period. The flight was planned to takeplace inthe dark and 

### -----------tntowinterweath:erinthe

### ehlcag<nrrea-:-We-Jmowftmfughtfutlowirrgth:atthe-actuatfitghr-------

------ with the fuel stop took approximately 5 Y, 

### hours whenthe planwas for a 4 Y, 

### hour flight. When the aircraft crashedthe pilot was into his rest period by2.5 hours ormore. We do notbelieve the flight time completionwas realistically planned as the Administrative Judge found. Agency's closing arguroent referenced a 2000 (The WhitlowLetter) (Exhibit 2) interpretation which applied to Part 121 operators withregard to restperiods. OnDecember 23, 2010 the Department ofTransportation, Federal AviationAdministration addressed

### Interpretation of

3 See letter to Kevin Wilson from Donald P. Byme Assistant Chiefcounsel ofRegulations and Enforcement Division (March 30, l992).(quoting and emphasizing a portion ofthe regulatory text form §l35267(d)) 5

### Rest Requirements. A Notice ofProposed Interpretations was issued inan effort to clarify interpretations ofPartl35.267 (d) withregard to restrequrrements.
The substance ofthe Notice was described as follows:
"The FAA's 2000 interpretation statedthat the language ofsection 121.471(g) created au exceptionto the pilot flight time limitation, but did not provide an exceptionfor pilotrest requirements See November 20, 2000, Letter to CaptainRichardD. Rubin from James W. Whitlow, Deputy Chiefcounsel "WhitlowLetter" The Whitlow Letter's validity was subsequently upheld by the U.S. Court ofAppeals for the D.C. Circuit, and since thattime has consistently applied the Whitlow Letterto inits interpretations ofsection 121.471(g)" (Exhibit 2).
The proposal additionally explains that "TheFAA has determined that it is illogical that the -, nearly-identical regulatory language in sections 121.471(g) and 135.263(d) is interpreted intwo different ways....As such the FAAproposes to applythe Whitlow Letter's interpretation of 121.471 (g) to sections 135.263 (d) and 135.267(d)

....application ofthe Whitlow Letter would supersede any contrarypre Whitlow interpretation ofthese sections. Underthe proposed interpretation, section 135.263(d) wouldnot create an exception for flight crew members rest requirements. Clearly by submitting this proposed interpretation theFAAheldthe positionthat Section 135.263(d) could not create an exceptionto the flight crew member restrequirements. That if

m •mfirghtrweredelayect'lmtatlowe-dttrconttnue·unctertl5.263fd)itwouf"c1notcreareany-excepuonto l35.267(d) rest requirements which is the positionthat the Federal Aviation Administration held inthis case. However, due to pressure appliedto the Agency this proposal was withdrawnNovember 7, 2013. "Section 346 ofthe FAAModernization and ReformAct of2012providedthat the Administrator ofthe Federal Aviation may not finalize the interpretationproposed inDocketNo. FAA-2110-1259, relating to the rest requirements, and published inthe Federal Register on December 23,2010.

6

### It does not change the fact that rest is required ofpilots to insure the safety offlights in air 

### transportationthat was envisioned when the Rules were created in 1985. The Agency relied on the interpretations that had beenin existence since 2000.
The agency represents that they were always substantiallyjustifiedin going forward "With this

case inthe interest ofsafety and should notbe charged with EAJA fees.
Should any EAJAfees are granted they should not begin to accrue until after the November 7, 2013, withdrawal ofthe Notice ofProposed Interpretation. Respectfully submitted,

eanette B. Daubaras FAA Attorney, Great Lakes Region.

7

### FEDERAL AVIATION ADMINSTRATION
OBJECTIONS TO ATTORNEY'S FEES UNDER EAJA
FILED BY Borth and Barnett

Charges on pages 1-3 of 13 are not recoverable under because they were incurred prior tothe filing of the Complaint: All 2012 and some charges in 2013.
Total 38:45 hours to be subtracted from total. Charges that were incurred between the filing ofthe Complaint and until the Notice of Proposed Interpretation was withdrawn on November 7, 2013, as requested by the FAA Attorney reflects an amount of 54.45 hours at 2013 rates. Respondent claims 196.00 total however that should absolutely be reduced by 38:45 hours for fees incurred before filing ofthe Complaint. Total hours after reduction is 157:15.
Iffees are assessed then the amount should be reduced bythe time that the Notice of Proposed Interpretation was in effect until November 7, 2013. The amount of hours should be reduced by 54:45 which leaves a total of 102:30.

Iffees are assessed the agency respectfully requests that the hours to be reimbursed be reduced to: 102:30.

### CERTIFICATE OF SERVICE The undersigned certifies thatthe foregoing was served viaovernight mail and fax to the Judge and facsimile and -'regular man· d\1r. 

### 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 ofHearings M20 1200NewJersey Avenue, 

### S.E. East Building Ground Floor RoomE12-320 Washington, D.C. 20590 Fax 202-366-7536

Charles R Barnett, III Counsel forRespondent Barnett & 

### Borth, 

### LLC 800 WaukeganRoad, Ste_ 200 Glenview, IL 60025 Fax (815) 356-7042

Datedthis 27th day of March 2015

# --------------~~~
FAA Great Lakes

### i'ii"~f!-1. 

### 80746 Federal Register/Yo!. 75, No. 246/Thursday, December 23, 2010/Proposed Rules
Subject

(d) JointAircraft SyStem Component (JASC)/Air TransportAssociation (ATA) of America Code 55: Stabilizers. Unsafe Condition

(e) This AD was Prompted by a report of a crack found in the upper center skin pand at the aft inboard corner ofa right horizontal stabilizer. We are issuingthis AD to detect and conect cracks in the horizontal stabilizer upper center skin paneL Uncorrected cracks might ultimately lead to the loss ofoverall structural integrity ofthe horizontal stabilizer. Compliance

(f) Comply with this AD within the compliance times specified, unless already done. Inspections

(g) Before the accumulation of20,000 total flight cycles, or within 4,379 flight cycles after the effective date ofthis AD, whichever occurs later, do eddy current inspections to detect cracking ofthe left and right upper center skin panels ofthe horizontal stabilizer, in accordance with the Accomplishment Instructions ofBoeing Alert Service Bulletin MD80-55A068, dated July 16,2010.

(1) Ifno crack is found during any inspection required by paragraph (g) ofthis AD, repeat the applicable inspections thereafter atthe applicable times specified in paragraph l.E., "Compliance,""ofBoeingAlert Service Bulletin MD80-55A068, dated July 16,2010. CFR25.571, Amendment 45, and the approval must specifically refer to this AD. Related Information

(i) For more information about this AD, contactRoger Durbin, Aerospace Engineer, Los Angeles ACO, Airframe Branch, ANM120L, FAA Los Angeles Aircraft Certification Office, 3960 Paramount Blvd, Lakewood, CA 90712--4137; telephone: (562) 627-5233; fax: (562) 627-5210; e-mail: roger.durbin@faa.gov.

G) For service information identified in this AD, contact BoeingCommercial Airplanes, Attention: Data &Services Management, 3855 Lakewood Boulevard, MC D800--0019, Long Beach, California 90846-0001; telephone 206-544-5000, extension 2; fax 206-766- 5683; e-mail dse.boecorn@)oeing.com; Internet https://www.myboeingfleet.corn. You may review copies ofthe referenced service information at the FAA, Transport Airplane Directorate, the FAA, 1601 Lind AvenueSW., Renton, Washington. For information on the availability ofthis material at the FAA, call 425-227-1221.

Issued in Renton, Washington, on December 16,2010. Ali Bahrami, Manager,Transport Airplane Directorate, Aircraft Certification Service. [FRDoc. 2010-32209 F:iled 12-22-10; 8:45am) BILLING CODE 4910-1:>-P

DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 135 [Docket No. FAA-2010-1259] Interpretation of Rest Requirements 2010-1259 using any ofthe following methods:

• Federal eRulemaking Portal: Go to http://www.regu.lations.gov and follow the online instructions for sendingyour comments electronically.

• Mail: Send Comments to Docket Operations,M-30; U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, West Building Ground Floor, Washington, DC 20590- 0001.

• Hand Delivery: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

• Fax: (202) 493-2251. FOR FURTHER INFORMATION CONTACT: Alex Zektser, Attorney, Regulations Division, Office ofChiefCounsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-3073; e-mail: Alex.Zektser@faa.gov. SUPPLEMENTARY INFORMATION: Comments Invited

The FAA invites interested persons to submit written comments,**dat~** or views concerning this proposal. The most helpful comments reference a specific portion ofthe proposal, explain the reason for any recommended · change, and include supporting data. To ensure the docket does not contain duplicate comments, please se:nd only one copy ofwritten comments, or ifyou are filing comments electronically, please submityour comments only one (2) Ifany crack is found during any inspection required by paragraph (g) ofthis AD, before further flight, replace the skin panel with a serviceable skin panel, in accordance with the Accomplishment Instructions ofBoeing Alert Service Bulletin MD80-55A068, dated July 16,2010. Within 20,000 flight cycles after the replacement, do eddy current inspections as required by paragraph (g) ofthis AD. AGENCY: Federal Aviation time. Administration (FAA), DOT. The FAA will file in the docket all Alternative Methods ofCompliance ACTION: Notice ofproposed comments received, as· well as a report (AMOCs) interpretation. summarizing each substantive public

(h){l) The Manager, Los Angeles Aircraft contact with FAA personnel concerning Certification Office (ACO), FAA, has the SUMMARY: This action proposes to this proposal. Before acting on this

------------ ----··auth-orlty-to-a1Jprove--AMOfrfurtlris-:A:.fr,-IT---·-rriTerprenlieapplrcafl@·-orr4CFK---. -propo-sal,t1leFAA-W11TCOnsrd-ei-8.1l reauested using the procedu_res found in 14 1:;5 2153 aa9 tQg n:st n:quireme:t:ltS gf Gg;g,:u;aeRts**n~sgivgEl** GR e:r Befere the CFR39.19. In accordance wr!h**4** 0'R 39

-19
, § 135.267(d) to situations in which a closing date for comments and an latesend your request to your pnncrpal mspector

. , . - d

. . . . y

1 1FI-ght St d d 0 . t · t O:ffi fhght crewmember s fhght tlme excee s filed comments rfrt rs possrble to do so or oca 1 an ar s IS nc ce, as th

. .bl 1. . 1 d t •th t · · d 1 Th appropriate. Ifsendinginfonnation directly . e permrssr e IIDI S**~e** 0 / WI ou mcurnng e::pense or**~** ay_. e to the manager ofthe ACO, send it to the cucumstances beyond hrs or her**~** FAA may change thrs proposal m light attention ofthe person identified in the controL As discussed below, the FAA ofcomments received. Related Information section ofthis AD. issued several interpretations 1 (2) Before using any approved AMOC, 1 addressing this issue in the 1990s. notifY your Principal Maintenance Inspector VHowever, because the proposed or**Princ~pal** Avioni:s**Inspe~to~,** as_ interpretation relies heavily on a appropnate, or lackmg a pnncrpal mspector, seminal FAA interpretation issued in your local Flight Standards District Office. 2000 th d · t t f ld

{3) An AMOC that provides an acceptable • e propose _m erpre a lOU wou level of safety may be used for any repair**~upersede ~ny**  preVIOUS contrary required by this AD ifit is approved by the mterpretanons of§§ 135.263 and Boeing Commercial Airplanes Organization l35.267(d). Designation Authorization (ODA) that has DATES: Comments must be received on been authorized by the Manager,. Los Angeles 4 ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis ofthe airplane and 14 or before January 2 , 2011. ADDRESSES: You may send comments identified by docket number FAAAvailability ofThis Proposed Interpretation

You can get an electronic copy using the Internet by-

(1) Searching the Federal eRulemaking Portal (http:/Iwww.regulations.gov);

(2) Visitingthe FAA's Regulations and Policies Web page at http://www.faa. gov/regulations_policies/; or

(3) Accessing the Government Printing Office's Web page at http:// www.gpoaccess.goyJ.fr/index.htmLFederal Register/Val. 75, No. 246/Thursday, December 23, 2010/Proposed Rules 

### 80747
Yo11 can also get a copy by sending a request to the Federal Aviation Administration, Office ofRulemaking, ARM-I, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identifY the docket number or notice number ofthis proposal. Background

The FAA has been asked to provide a legal interpretation regarding the application ofl4 CFR 135.263 and l35.267(d) to the following factual scenario.

An operator plans a flight that is anticipated to be completed within a 13.5-hour duty day. However, unanticipated delays (such as late passengers and late cargo) occurbefore the last leg ofthe flight, and these delays would extend the flight beyond a 14-hour duty day ifthe last leg is completed. The proposed interpretation would clarify whether the crew may take offon the last leg ofthe flight, knowing in advance that they will not receive the 10 hours ofrest required in a 24-hour period by section 135.267(d). Discussion ofthe Proposal

Section l35.267(d) ofTitle 14 ofthe Code ofFederal Regulations requires that a flight assignment operating under section 135.267(b) and (c) must provide for at least 10 consecutive hours ofrest

· during the 24-hour period that precedes the planned completion time ofthe assignment. Under this seCtion, a duty v day may not exceed 14 hours in a 24- hour period without infringing on the required rest time. However, section l35.267(d) works in conjunction with 14 CFR 135.263 (d), which provides that: is nearly identical to section l35.263(d). That section, 14 CFR 121.471 (g), states that:

A flight crewmember is not considered to be scheduled for flight time in excess offlight time limitations ifthe flights to which he is assigned are scheduled and normally terminate within the limitations, but due to circumstances beYond the control ofthe certificate holder (such as adverse weather conditions), are not at the time ofdeparture expected to reach their destination within the scheduled time. The FAA's 2000 interpretation stated that the language ofsection l2L47l(g) created an exception to pilot flight time limitations, but did not provide an exception for pilot rest requirements. See Nov. 20,2000, Letterto Captain Richard D. Rubin from James W. Whitlow, Deputy ChiefCounsel ('Whitlow Letter"). The Whitlow Letter's validity was subsequently upheld by the U.S. Court ofAppeals for the DC Circuit, and since that time, the FAA has consistently applied the Whitlow Letter in its interpretations of section 121.471(g). See Air Transport Ass'n ofAmerica, Inc. v. F.A.A., 291 F.3d 49 (DC Cir. 2002) (upholding the validity ofthe Whitlow Letter). See, e.g., Mar. 18, 2009, Letter to William E. Banks, Jr. from Rebecca B. MacPherson,

. Assistant ChiefCounsel for Regulations

(noting that section 121.471(g) does not crewmember was to be aware at the time ofdeparture on the last leg ofthe flight that he or she has not had the required rest, 14 CFR l35.267(d) would prohibit him or her from departing on the last leg ofthe flight.

Issued in Washington, DC, on December 17,2010. Rebecca B. MacPherson, Assistant ChiefCounsel for Regulations, AGC-200. [FR Doc. 2010-32234 Filed 12-22-10; 8:45 am] BILLING CODE 4910---13-P

COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 39 RIN 3038-AD10 End-User Exception to Mandatory Clearing of Swaps AGENCY: Commodity Futures Trading Commission. ACTION: Proposed rule.
SUMMARY: The Commodity Futures Trading Commission ("'CFTC" or "Commission') is proposing new requirements governing the elective exception to mandatory clearing of swaps available for swap counterparties meeting certain conditions under Section 2(h)(7) ofthe Commodity Exchange Act, as amended by the DoddFrank Wall Street Reform and Consumer Protection Act. The Commission is provide an exception for rest requirements); Jan. 11, 2005, Letter to Jan Marcus from Rebecca B. MacPherson, Assistant ChiefCounsel for Regulations (same).

The FAA has detennined that it is requesting comments on the proposed illogical thatthe nearly-identical rule and related matters. regulatory language in sections DATES: Comments mustbe received on 121.47l(g) and 135.263(d) is interpreted or before February 22,2011. in two different ways. See Air Transport ADDRESSES: You may submit comments, Afligbtcrewmemberisnotconsideredto Ass'n,291F.3dat51 n.l (statingthat "d t"fi db RIN b beassignedflighttimeinexcessofflighttime 1 en 1 e Y num er3038-AD10, limitations ifthe flights to which he is "[t]he**su~stance ~fthe**  rules in Parts 121 by any ofthe**follo:ving_m~thods:** assigned normally terminate within the and 135 Is_**esse?U~lly** the sam,e and the • _Agency Web Site, vta rts Comments

-----**-!+m-i-ffi-!:i-efrs-;-hu-t--frtte-to-cirettm-sfftnees--b-e'jfifttl---Iules..are..ll.kewJSe-ID:ter.p.re:te.d.2..")...-A~-...Q.:a.l-ffi.e-~~---** -------------··-· the control ofthe certificate holder or flight the FAA proposes to apply the Whrtlow comments.cftc. ov. Follow the crewmem er such as adverse weather etter's mterpretation of12L47l(g) to instructions for submitting comments conditions), are not at the time ofdeparture sections 135.263(d) and 135.267(d). through the Web site. expected t?**rea~h** their destination within the /Because the_Whitlow**~etter** and the • Mail:**~a~id** A. Stawick, Secretary of planned flight time. l subsequent mterpretatwns based on the the Commtsswn, Commodity Futures

In the 1990s, the FAA interpreted \Whitlow- Letter are more recent than the Trading Commission, Three Lafayette sections 135.263(d) and l35.267(d) to 

### (I990s interpretations ofsections Centre, 1155 21st Street, NW., permit flight crewmembers to take off \l35.263(d) and 135.267(d), the Whitlow Washington, DC 20581. on flights that were scheduled to be )Lett,er line ofinterpretations best reflects**~** HandDelivery/Courier: Same as completed within a 14-hour duty period \the FAA's current understanding ofthe mail above. even though circumstances beyond the pertinent regulatory language. As such, • Federal eRulemakingPortal: http:// crewmembers' control extended the the proposed application ofthe Whitlow www.regalations.gov. Follow actual duty time beyond the permissible Letter to sections 135.263(d) and instructions for submitting comments. 14-hour period. See, e.g., Aug. 30, 1993, l35.267(d) would supersede any Please submit your comments using Letter to Mr. Ross from Donald P. Byrne, contrary pre-Whitlow interpretations of only one method. All comments mustbe Assistant ChiefCounsel for Regulations these sections. submitted in English, or ifnot, and Enforcement; Mar. 30, 1992, Letter Under the proposed interpretation, accompanied by an English translation. to Kevin Wilson from Donald P. Byrne. section l35.263(d) would not create an Comments will be posted as received to

However, in 2000, the FAA issued a exception for flightcrewmember rest http://www.cftc.gov. You should submit seminal interpretation ofa section that requirements. As such, ifa flight only information that you wish to make

## u.sDepartment 

### orTronsporJonon Federol Avlo!ion Admin!. 

## NOV 

## 20 2000 Captain Richard D. Rubin, Chairmau AlliedPilotsAssociation 

### 14600 Trinity Boulevard Suite 

### 500 Fort Worth, Texas 76155-2512
Dear CaptainRubin: BOO Independence Ave., S.W. Washington. D.C. 20591



### This is inresponse to your recentletter to me, ofSeptember 26, 2000, concerning vanous questions that have arisen as a result ofthe implementation ofchanges to the pilotreserve system at AmericauAirlines. Your questions are based onthe flight time and rest regulations that are applicable to domestic operations.
The facts, situations and questions that you present are set forth below. 

### I have also responded to each question separately below.
Facts: 

### A crew is assigned reserve standby duty commencing at 

### 0600. 'Ibey are then called at 

### 0900 to 

### check in for a flight assignment at 

### II00.
End ofRest Report at Release at Sched. Rest Look-back Rest Day l 0600 1100 2100 10:00 9:00 Day2 0700 0700 1700 12:00 !0:00 

### Inthe above example, assume thatthe crew was assigned to three segments with a

...... -------- ____ tQ!aLof!ess 

### tlwn &houl;s_o.ffl,-ingin.eaclu:luzy_periruLaud!hatthe.£ched!Jled

__________ __ _ __ 

### block in gffue 

### !ll&t llight ofeach day 

### i£ 15 minute; prior to release This original schedule does not require compensatoryrest.
I note, prelil1linarily, that your letter states thatI should assume that the flight crew "was assigned to three segments with a total of!ess thau 8 hours offlying in each duty period." I assume that by that statement you meau "lessthan a total 8 hours ofscheduled

### flight time for the three flight segments, on bothDay 

### 1and Day 2." Based onthat assumption, the regulations thatI will apply arethosethat require a minimum of9 consecutive hours ofscheduled rest (section 

### 121.47l(b)(l)) that may bereduced to a minimum of8hours with aminimum ofl0 hours compensatoryrestthat mustbeginno later than24 hours after the commencement

### -2-
ofthereduced rest (section 121.471(c)(l)(the "reduced/compensatoryrest" exception)). I have also made other assumptions or clarifications that are described 

### in myresponses below.
Situation 

### 1: OnDay 

### 1,-all goes accordingtoplan on the frrst two segments. However, after leaving the gate on thethird segment, the crew encounters 

### an unanticipated ground delay thatresults in only 

### an 

### 8hour, 

### 45 minutes look-back restperiodupon termination atdestination. 

### 1. 

## Is compensatory restnowrequiredupon landing? Response: You do notprovide specific details on what

## is thetennination time ofthe last flight segment (I assume thatby "termination at destination" youmean the "termination ofthe last flight segment") However, you state, above, thatthe flight crewwould only receive 

## an 8 hours and45 minutes look-backrest period. I therefore assumethat the termination ofthat 

### last flight segment, basedon the other factual details youprovide above, was at2115. Lookingback24hours from2115 on Day l to 2115 on the day priorto Day l, one 

## finds only 8 andthree quarters consecutive hours ofrest in iheperiod2115 (ofthe day priorto Day 

### l) to 

### 0600 hours (on Day 

### 1 ).
Theonly situation iii which a certificate.holder may reduce the minimum 

### 9 hourrequired restperiod is to utilizethe "reduced/compensatoryrest" exception that allows certificateholders the flexibility to adjust scheduled rests inihe eventoflate arrivals. Thus, a certificateholder may reduceihe required scheduled rest so that one 

### fmds a minimumlook-backrest of

### 8 consecutive hours on termination ofthelastflight segment, 

## as well 

### as provide the required comjl_ensatory rest. In your**scenar~,**

### _ _t]:teeertificate_
mum - _m____ -**l:ioldercoul<:lieauceiheregiiirecCillilliiDliffi9co!lse~liti~e** 

### hours of scheduled rest to 8 andthree-quarters hours. 1 

### However, the certificate holder must also provide the flight crewmember\vith a compensatory rest period ofat least 10 hours thatmustbegin no laterthan 24 hours after commencement ofthe reducedrest period. 

### In yourscenario, that compensatory rest mustbegin at 2115 on Day l, since the reduced rest 

### begins at2115 on-the daybeforeDay L

1 I note t_f}at the certificate holder could reduce the scheduled rest to a minimum of8bours.-:-_ . ' ' 

### -3-
2. Inthe case ofa ground delay priorto take-off, wonldthe crew and certificate holderbe correct in using planned flight time andtaxi-in time in determining the scheduled arrival time'? Response: The FAArequires the crew and the certificateholderto usethe actual expected flight time and taxi-in time, based onthe specific conditions that exist on the day, to determine the scheduled arrival time for purposes ofdetermining whether aflight should he commenced. For example, ifan airline has published a flight time ofthree hours, butknows thatthe actual time the flightwill take is four hours because ofweather, ground delays, etc., thentheFAArequires the carrierto use four hours for purposes·ofcalculating the arrival time. On the otherhand, ifthe air carrier has scheduled a flight for three hours, but onthe day in question, itis reasonable to conclude thatflight time would only be two**and~** 

### halfhours, the carrier may nse two and a halfhours to calculatethe arrival time.
3. Ifthe ground delay continues to thepoint thatthe look-back rest is reducedbelow 8 hours, canthe crew continue? Ifso, what are the rest requirements upon arrival? Response: The flight may nottake offifthe look-backrest period is reduced to less than 8 hours. There must be at least an eight-hour lookbackrestperiod. The eight-hourmimmuni reduced rest may not befurther ; reduced under any circumsta.11ce. 

# 4. Ifa ground delay, thatwouldresult in a late arrival that would not provide atleast 8 hours oflook-backrest

### is known by the certificate holder and/or crew prior to gate departure, can the crew depart legally based upon thepublished scheduled flight time? Response: No. As stated above, the FAAreqwres the crew and the certificate holder to use the actual expected flight time andtaxi-in time, based on the specific conditions that exist on the day,**t~rmine** 

### the scheduled arrival time for purposes ofdetermining whether a flight should be commenced. Ifthe actual expectedflight time is longerthan the carrier originally calculated in determining thescheduled arrival 

### time, thenthe actual expected flight timemustbe usedin determining the look-back rest period.

### Situation 2. On Day 1, the crew is late inbound onthe second segmentwhich results in notbeing able to leave the gate on the third and last segmentontime. 

### As a result, the look -backwouldnowprovide 8hours and45 minutes restin the previous 24, based onthe scheduled duration ofthe final segment.
L Is compensatoryrest now required upon arrival? Response: Yes. Compensatory rest would berequired upon arrival at the third destination. See the discussion in my responseto question l of Situation 1 above.
2. 

### Ifthe crewwere further delayed so thatthey could not departto provide at least 8 hours oflook-backrestupon arrival; couldthey depart legally? Response: No. If, whenusing the actual expected flighttime, the carrier cannot find at least 8 hours oflook-backrest upon arrival, then the flight maynot depart, under the 

### FAA regulations. See myresponse to question 3 ofSituation 1 above.
3. Ifthere is a k..-:town ground stop for the destination ofthe final segment, whichwould result 

### in look-back rest ofonly 7 hours and45 minutes, can the crew legally leave the gate? Ifthey are offthe gate when the ground stop occurs, can they continue? Response: Ifit is known, orreasonably should be known, thatthe flight time will be extended because ofground stops atthe destination airport, then this information mustbe included 

### in determining the actual expected flight time. If; when this information is factored in, it is known or should beknown that an:ival basedupon the actual expected flight time will not ---result-imrt-teast-8-bumoflook 

### taclnest;rtn.:rcthe-llignr:may-nofTeaveme-- gate. [f

### the flight is away from the gate, but JS 

### not yet rn the arr, then the flight may not take off. lf!he grouod stops at

### the destination airport do not become known until afterthe flight is 

### in the air, theFAA willnot, as a matter ofenforcementpolicy, take enforcement action agai!lSt the flight crewmember orthe certificate holder for a violation ofthe regulations, provided the ground stops atthe destination airport are an unforeseen delay beyondthe control ofthe certificate holder and the full, required miniroum reduced rest andthe compensatoryrest are given atthe completion ofthe flight segment.

### -5-
4. Should the scheduled arrival time iu 3above be basedupon published scheduled flight time orflight planned duration (flighttimeplus taxi time)? Response: Arrival time 

## it> 3 above should be based on flight planned duration, i.e., the-actual expected flight time based on theconditions existing on the day 

### inquestion. Also, 

### I am not sure what you mean by "published scheduled flight time." Ifyou mean scheduled flight time as 

### published inthe Official Airline Guide (OAG), such flight time maybe uorealistically high. Sometimes 

### a certificate holder might overestimatethe duration ofa flight 

### in orderto have·some cushion in the schedule andbe able to report an on-time arrival. The actoal realistic flight time (block to blocktime) may be less than such "published scheduled flight time" in the OAG.
5. Would the reason for the crew being late on the second flight (beyond the control.ofthe air carrier or not) have any bearing on the rest requirement? .Response: I 

### assume that your question is whether section 121.47l(g) (the "circumstances beyond the control ofthe certificate holder" exception) excuses arest vioiaticm. No. That exception applies only to the scheduling offlight time. Itis inapplicable to, and does not excuse, a violation ofa rest requirement. Also see my response to question 1

### ofSituation 1 

### in which 

### I discuss the use ofthe "reduced/compensatoryrest" exception, its purpose, and 

### compliance with its terms. Situation 3: On Day 1, one ofthe carrier's hubs is impacted by a weather system in themorning. As a result, the carrier decides to delay all remaining departure times that day outofthe hub

.. 1. Ifa 

### departnre so delayed wrn1ld result 

### io a CW" 

### h;p<iiJg 

### !GGk backrest of less than 9 hours, would compensatory rest be required? Response: Yes. (I assume thatthe look-backrest, which is less than 9 hours, would still be at least 8hours.)
2. Ifthe delay resulted in a crew having look-backrest oflessthan 8hours, could a crew legally depart? Response: No. The FAAwould consider this flight to be in violation ofthe regulations.

## -6-
Situation4. The crew and 

### air carrier iqlow, priorto departure, that forecast winds orenrouteweather

### are resulting 

### in a flight planfor that segmentthatexceeds the normal duration published 

### inthe carriers schedules. 

### 1. Can the crew legally departifthe scheduled arrival 

### time based 

### onthe flight plan would encroachupon or delay the required start of

## a .compensatory rest period? Response: 

### I assume thatthe questions for Situation

### 4relateto Day 

### 1and to thelast flight segment. 

### I am not sure whatyoumeanby "published inthe canier's schedules." See my response to question

### 4 

### in Situation 

### 3 above. 

### Ifyou 

### meanthatthe crew and certificate holderknow, priortotake-off, that en route weather conditions willresult inthe flight takinglonger than expected, then my answeris as follows. Even ifthe expected tem1ination ofthe 

### last flig.'It segmentwould allow a minimum 

### 8 consecutive hours look-backrestperiod, ifthe crew and certificate holder expect, prior to take-off, thatthe flightwill infringe on therequired start ofthe compensatory restperiod, the crew may not legally depart Thus, although the actual flight time might exceed flight time limits and although exceeding flight time limits in these circu!IlStances would be allowed unde1 L'le "circumstances beyondthe control ofthe certificate holder" exception, thatexception does notpermit an 

### encroachmenton reduced rest or compensatory restbelowthe minimums specified inthe regulations. 

### 2. 

### If the original cre>vTnember's schedule did notrequire compensatory rest, woUld corr,pensatoryrestberequired ifthe scheduledarrival based uponthe flightplan information resulted inthe crewmemberhaving 

### less tha;1 

### 9hours oflook-backrestupon arrival?

u
_ __ _ __ _ _______R\Olij20l!S<;;;_JLuJlon_termination

### mlb.e!a:;tJ;light~at,-1:00~-res:t--

. was acnmlly less than 

### 9 

### bonrs, tbPJJ. 

### compgRs:iJery r&st is req;rired regardless ofthe scheduled arrival.
3. Ifthe original crewmernber's schedule didnot require compensatory rest, wquldthe crewmemberbe legal to depart ifthe scheduled arrival baseduponthe flightplaninfonnation resulted inthe crewmemberhaving less

### than 8 hours oflook -backrestupon arrival? Response: No. If, at the time ofdeparture, itis calculatedthat apilot

### will have less than 8 hours oflook -backrest upontermination ofthe last flight segment, then the flight may nottake off. Tne intention to give i

## '

.



### -7- 

### compensatory rest may notbe used to permit a pilot to take aflight when it is known at thebeginning ofth.e flight thatthe pilot will have less than 

### 8hours oflook-backrestupon termination ofthe last flight segment.



### I hope these responses will be helpful to you. Sincerely,



### James W. 

### Whitlow Deputy ChiefCounsel

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF
TRANS NORTH AVIATION, LTD.
FAA DOCKET NO. (not assigned) (Civil Penalty Action) DMS NO. (not assigned) FAA CASE NO. 2012-GL-03-0012

COMPLAINT

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to Rule 208 ofthe Rules ofPractice (14 C.F.R. 13.208), and states as follows:

I.



### 1. 

### Trans North Aviation Inc. (hereinafter, "Trans North") now holds and at all times mentioned herein held Air Carrier

_________ _ ______i:ertificate

__Nmnher__EREA4A3D__tha_t

__a:u_thDri_z_es_'I'r

### an s R=:tb__to_

______________ 

### conduct operatlons under Part 135 of the Eederal Aviatlon Regulations.
2. At all times mentioned herein, William Didier, holder of Airline Transport Pilot Certificate Number 3067631, was authorized to conduct Trans North's commercial flight operations under -both Part 91 and Part 135.



## EXHIBIT 

# I B

### 3. On November 28, 2011, Mr. Didier was the Pilot-in-Command of
a Piper, PA-31-350, N59773, on a Part 135 flight operated by Trans North from Jessup-Wayne County Airport, Georgia (KJES), with an intended destination of Chicago Executive Airport, Wheeling, Illinois (KPWK) (hereinafter referred to as the flight)

. 4. The flight ended when N59773 crashed short of Chicago Executive Airport in Wheeling, Illinois. The crash resulted in three fatalities, including two passengers and Mr. Didier.
5. Trans North assigned Mr. Didier as Pilot-in-Command of the flight on November 28, 2011, which did not provide for at least 10 consecutive hours of rest during the 24-hour period that preceded the planned completion time of the flight assignment.

II. 

### 1. By reason ofthe foregoing facts and circumstances, Respondent violated the following section ofthe Federal Aviation Regulations:

14 CFR Section 135.267(d), which states that each assignment under paragraph (b) of this section must provide for at least 10 consecutive hours of rest during the 24-hour period t_hat prec e

# dcos_**!J:l~** 

# _ _p_lallll_e**_cj_co~p lE;_t~()[l_**  

### t im"'_o**f__t:_ll<:;_~f3_s**

### i**gf1rn~n_t** 

### .



### 2. Pursuant to Title 49 ofthe United States Code, Section 46301 (49 U.S.C. § 46301), Respondent is subject to a civil penalty not to exceed $11,000 for each violation alleged. 3. Under the facts and circumstances ofthis case, a civil penalty of$7500.00 is appropriate.

2

### WHEREFORE, the Agency, by counsel, respectfully requests that the Adnllnistrative Law Judge enter an Order that Respondent be assessed a civil penalty in the amount of $7,500.00.
Respectfully submitted this IIth 

### day ofApril, 2013

Jeanette B Daubaras, Attorney Federal Aviation Administration Great Lakes Region, AGL-7G 2300 East DevonAvenue Des Plaines, IL 

### 60018 Telephone: Facsimile: Email: (847) 294-7313 (847) 294-7498 jeanette.b.daubaras@faa.gov

3

### CERTIFICATE OF SERVICE 

### The undersigned certifies that the foregoing Complaint was served via Certified Mail, Return Receipt Requested and Regular mail as follows: Original and One Copy:

One Copy

One Copy: Hearing Docket Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2Wl000

Mr. Ronald J. Schaberg President Trans North Aviation LTD Eagle River Airport PO Box 1445 Eagle River, WI 54521



### Charles R. Barnett, III 1664 Moorland Lane Crystal Lake, IL 60014-2985

Datedthis llth 

### day ofApril, 2013.

4 

### Yolanda Quiles Legal Technician FAA Great Lakes60746 Federal Register 

### IVol. 75, No. 246 

### IThursday, December 23, 2010 

### IProposed Rules Subject

(d) Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 55: Stabilizers. Unsafe Condition

(e) This AD was prompted by a report of a crack found in the upper center skin panel at the aft inboard corner of a righthorizontal stabilizer. We are issuing this AD to detect and correct cracks in the horizontal stabilizer upper center skin panel. Uncorrected cracks might ultimately lead to the loss of overall structural integrity ofthe horizontal stabilizer. Compliance

(f) Comply with this AD within the compliance times specified, unless already done. CFR 25.571, Amendment 45, and the approval must specifically refer to this AD. Related Information

(i) For more information about this AD, contact Roger Durbin, Aerospace Engineer, Los Angeles ACO, Airframe Branch, ANM1201, FAA Los Angeles Aircraft Certification Office, 3960 Paramount Blvd, Lakewood, CA 90712-4137; telephone: (562) 627-5233; fax: (562) 627-5210; e-mail: roger.durbin@jaa.gov.

{j} For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, 3855 Lakewood Boulevard, MC DB00-0019, Long Beach, California 90846-0001; telephone 206-544-5000, extension 2; fax 206-766- 5683; e-mail dse.boecom@boeing.com; Internet https://www.myboeingfleet.com. You may review copies ofthe referenced service Inspections information at the FAA, Transport Airplane

(g) Before the accumulation of20,000 total Directorate, the FAA, 1601 Lind Avenue SW., flight cycles, or within.4,379 flight cycles Renton, Washington. For information on the after the effective date ofthis AD, whichever availability ofthis material at the FAA, call occurs later, do eddy current inspections to 425-227-1221. detect cracking ofthe left and right upper Issued in Renton, Washington, on center skin panels ofthe horizontal stabilizer, December 16, 2010, in accordance vvith the Accomplishment Instructions ofBoeing Alert Service Bulletin Ali Bahrami, :MD80-55A068, dated July 16, 2010. Manager, TransportAirplaneDirectorate,

(1) Ifno crack is found during any Aircraft Certification Service. inspection required by paragraph (g) ofthis [FR Doc. 2010-32209 Filed 12-22-10; 8:45 am] 2010-1259 using any ofthe following methods:

• Federal eRulemakingPortal: Go to http:/ lwww.regulations.gov and follow the online instructions for sending your comments electronically.

• Mail: Send Comments to Docket Operations, M-30; U.S. Department of Transportation, 1200 NewJersey Avenue, SE., West Building Ground Floor, Room W12-140, West Building Ground Floor, Washington, DC 20590- 0001.

• Hand Delivery: Take comments to Docket Operations inRoom W12-140 of the West Building Ground Floor at 1200 NewJersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

• Fax: (202) 493-2251. FOR FURTHER INFORMATION CONTACT: Alex Zektser, Attorney, Regulations Division, Office of Chief Counsel, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-3073; e-mail:Alex.Zektser@faa.gov. SUPPLEMENTARY INFORMATION: Comments Invited AD, repeat the applicable inspections BILLING CODE 4910

_13_p The FAA invites interested persons to thereafter at the applicable times specified in submit written comments, data, or paragraph i.E., "Compliance," ofBoeing Alert views concerning this proposal. The Service Bulletin MDB0

- 55ADBB, dated July DEPARTMENT OF TRANSPORTATION most helpful comments reference a**16**

### r'z**)~~~~y** crack is found during any specific portion ofthe proposal, explain Federal Aviation Administration tb 1 d d inspection required by paragraph (g) ofthis e reason or any recommen e AD, before further flight, replace the skin change, and include supporting data. To panel with a serviceable skin panel, in 14 CFR Part 135 ensure the docket does not contain accordance with the Accomplishment duplicate comments, please send only Instructions ofBoeing Alert Service Bulletin [Docket No. FAA-2010

- 12591 one copy ofwritten comments, or ifyou MDS0-55AOB8, datedJuly 16,2010. Within are filing comments electronically, 20 DOD fl . ht 1 It th 1 t d Interpretation of Rest Requirements

, 1g eye es a er e rep acemen ' 0 please submit your comments only one eddy current inspections as required by AGENCY: Federal Aviation time. paragraph (g) ofthis AD. Administration (FAA], DOT. The FAA -will file in tho docket all Alternative Methods ofCompliance ACTION: Notice ofproposed comments received, as well as a report (AMOCs) interpretation. summarizing each substantive public

(h)(1) The Manager, Los Angeles Aircraft contact with FAA personnel concerning Certification Office (ACO), FAA, has the**--~i.:!-~-~~Y~J]_l~~-~0_bQ_~_Q~QP~~-~-!~------** ____ this**_ErQP~og. ~ef9r~** **a0IQS_QI!__Qli~** __

----- ----autnOrity:TO-ipJiTO-ve-AJ\1ITCSWrliifSAIJ,II

___ interpret the application of 14 CFR proposal, the FAA will consider all**rg~grtod** Y&ing t.h.<J procedllnl£ fonnd in 14 135.263 and the xeslxequhemenls of comments xeceived on 01 befoxe the CFR 39.19. In accordance with 14 CFR 39.19, § 135 .267(d] to situations in which a

### ~~~~Ja~~;;;~u~:~~~~~r&~~~ic~f~fj~~~:~tor flight crewmember's flight time exceeds appropriate. Ifsending information directly the permissible limits due to to the manager ofthe ACO, send it to the circumstances beyond his or her attention ofthe person identified in the control. As discussed below, the FAA Related Information section ofthis AD. issued several interpretations

(2) Before using any approved AMOC, addressing this issue in the 1990s. notify your Principal Maintenance Inspector However, because the proposed or Principal Avionics Inspector, as interpretation relies heavily on a appropriate, or lacking a principal inspector, seminal FAA interpretation issued in

### yo~)**~~a~~~~t~:~p~~~~~~si:i~~~~~~~·le** 2000, the proposed interpretation would level of safety may be used for any repair supersede any previous contrary required by this AD ifit is approved by the interpretations of§§ 135.263 and Boeing Commercial Airplanes Organization 135.267(d). Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis ofthe airplane and 14 DATES: Comments mustbe received on or before January 24, 2011. ADDRESSES: You may send comments identified by docket number FAAclosing date for comments and any latefiled comments ifit is possible to do so without incurring expense or delay. The FAA may change this proposal in light of comments received. Availability ofThis Proposed Interpretation

You can get an electronic copy using the Internet**by~**

(1) Searching the Federal eRulemaking Portal (http:I /v.rww.regulations.gov); (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa. gov/regulations _policies/; or (3) Accessing the Government Printing

### Office's"W'jlilcbiilp~~~g~e~a~t~**Lh~t~t~~~:**... //!l,l!lllllllll' www.gpoaccess. 1 

## EXHIBIT 

# I CFederal Register 

### IVol. 75, No. 246 

### IThursday, December 23, 2010 

### IProposed Rules 80747

You can also get a copy by sending a request to the FederalAviation Administration, Office ofRulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identifythe docket number or notice number ofthis proposal. Background

The FAA has been asked to provide a legal interpretation regarding the application of 14 CFR 135.263 and 135.267(d) to the following factual scenario.

An operator plans a flight that is anticipated to be completed within a 13.5-hour duty day. However, unanticipated delays (such as late passengers and late cargo) occurbefore the last leg ofthe flight, and these delays would extend the flight beyond a 14-hour duty day ifthe last leg is completed. The proposed interpretation would clarify whether the crew may take offon the last leg ofthe flight, knowing in advance that they will not receive the 10 hours ofrest required in a 24-hour period by section 135.267(d). Discussion ofthe Proposal

Section 135.267(d) ofTitle 14 ofthe Code ofFederal Regulations requires that a flight assignment operating under section 135.267(b) and (c) mustprovide for at least 10 consecutive hours ofrest during the 24-hour periodthat precedes the planned completion time oftho assignment. Under this section, a duty day may not exceed 14 hours in a 24- hour period without infringing on the requiredrest time. However, section 135.267(d) works in conjunction with 14 CFR 135.263(d), which provides that: is nearly identical to section 135.263(d). That section, 14 CFR 121.471[g), states that:

A flight cre'Wlllember is not considered to be scheduled for flight time in excess of flight time limitations ifthe flights to which he is assigned are scheduled and normally terminate within the limitations, but due to circumstances beyond the control ofthe certificate holder (such as adverse weather conditions), are not at the time ofdeparture expected to reachtheir destination within the scheduled time. crewmember was to be aware at the time of departure on the last leg ofthe flight that he or she has not had the required rest, 14 CFR 135.267(d) would prohibit him or her from departing on the last leg ofthe flight.

Issued in Washington, DC, on Decembor 17, 2010. Rebecca B, MacPherson, Assistant ChiefCounselfor Regulations, AGC-200. [FR Doc. 2010-32234 Filed 12-22-10; 8:45am] BILLING CODE 4910-13-P

COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 39 RIN 3038-AD10 End-User Exception to Mandatory Clearing of Swaps AGENCY: Commodity Futures Trading Commission. ACTION: Proposed rule. The FAA's 2000 interpretation stated that the language of section 121.471(g) created an exception to pilot flight time limitations, but did notprovide an exception for pilot rest requirements. See Nov. 20, 2000, Letterto Captain Richard D. Rubin from James W. Whitlow, Deputy ChiefCounsel ("Whitlow Letter"). The Whitlow Letter's validity was subsequently upheld by the U.S. Court ofAppeals for the DC Circuit, and since thattime, tho FAA has consistently applied the Whitlow Letter in its interpretations of section 121.471(g). See Air Transport Ass'n of America, Inc. v. F.A.A., 291 F.3d 49 (DC Cir. 2002) (upholding the SUMMARY: The Commodity Futures validity ofthe Whitlow Letter). See, e.g., Trading Commission ("CFTC" or Mar. 18, 2009, Letter to William E. "Commission") is proposing new Banks, Jr. from Rebecca B. MacPherson, requirements governing the elective Assistant ChiefCounsel for Regulations exception to mandatory clearing of (noting that section 121.471(g) does not swaps available for swap counterparties provide an exception for rest meeting certain conditions under requirements); Jan. 11, 2005, Letter to Section 2(h)(7) ofthe Commodity Jan Marcus from Rebecca B. Exchange Act, as amendedby the DoddMacPherson, Assistant Chief Counsel Frank Wall StreetReform and Consumer for Regulations (same). Protection Act. The Commission is

The FAA has determined that it is requesting comments on the proposed illogical that the nearly-identical rule and related matters. regulatory language in sections DATES: Comments must be received on 121.471(g) and 135.263(d) is interpreted or before February 22, 2011. in two different ways. See Air Transport ADDRESSES: You may submit comments, Aflight crewmember is not considered to A ' F d ( · h ss n, 291 '.3 at 51 n.1 statmg t at identified by RIN number 3038-AD10, be assigned flight time in excess offlight time [ ]h b limitations ifthe flights to which he is " t e su. stance**~f** the rules in Parts 121 by any ofthe follo':'lfing**.m~thods:** assig11od normally terminate withinthe

_ _ and 135 Is.**esso~h~lly** the same and the • Agency Web site, vw Its Comments

----------- --------nm-rtatTons;-DUfOUe--tO-diCUillSl3ii:C-i:r"SD-eyonu---rute-s-a:re--likewise IIIter**prete-cPrT,--A-s--suclr,-------on-Hrre-praces~--frttp-;f!------------------------** tHe GQRtrgl**gffi~B t;;~;>l!tifica+e**  h_glQer gr flight the FAA proposes to apply the Whjtlow comments cftc gmr Follow the crewmember (such as adverse weather Letter's interpretation of 121.471(g) to instructions for submitting comments conditions), are not**a~** the**ti~e** 

### ?f dep.art.ure sections 135.263(d) and 135.267(d). through the Web site. expected

### t?**rea~h** theu deshnahon w1thm the Because the Whitlow Letter and the • Mail: David A. Stawick, Secretary of planned flight tlme. subsequent interpretations based on the the Commission, Commodity Futures

In the 1990s, the FAA interpreted Whitlow Letter are more recent than the Trading Commission, Three Lafayette sections 135.263(d) and 135.267(d) to 1990s interpretations of sections Centre, 1155 21st Street, NW., permit flight crewmembers to take off 135.263(d) and 135.267(d), the Whitlow Washington, DC 20581. on flights that were scheduled to be Letter line ofinterpretations best reflects • Hand Delivery/Courier: Same as completed within a 14-hour duty period the FAA's current understanding ofthe mail above. even though circumstances beyond the pertinent regulatory language. As such, • Federal eRulemakingPortal: http:// crewmembers' control extended the the proposed application ofthe Whitlow wwvv.regulations.gov. Follow actual duty time beyond the permissible Letter to sections 135.263(d) and instructions for submitting comments. 14-hourperiod. See, e.g., Aug. 30, 1993, 135.267(d) would supersede any Please submit your comments using Letter to Mr. Ross from Donald P. Byrne, contrarypre-Whitlow interpretations of only one method. All comments must be Assistant ChiefCounsel for Regulations these sections. submitted in English, or ifnot, and Enforcement; Mar. 30, 1992, Letter Under the proposed interpretation, accompanied by an English translation. to Kevin Wilson from Donald P. Byrne. section 135.263(d) would not create an Comments will be posted as received to

However, in 2000, the FAA issued a exception for flight crewmember rest http://www.cftc.gov. You should submit seminal interpretation of a section that requirements. As such, ifa flight only information that you wish to makeFederal Register/Val. 78, No. 216/Thursday, November 7, 2013/Proposed Rules 66865
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 135 [Docket No. FAA-2010-1259] Interpretation of Rest Requirements AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice ofproposed interpretation; withdrawal. SUMMARY: On December 23, 2010, FAA published a Notice ofProposed Interpretation seeking public comment on the application ofcertain rest requirements during on-demand operations. Section 346 ofthe FAA Modernization andReform Act of 2012 provided thatthe Administrator ofthe Federal Aviation Administration may not finalize the interpretation proposed in Docket No. FAA-2010-1259, relating to rest requirements, and published in the Federal Register on December 23, 2010. Consistent with this statute, no further action will be taken with regard to this interpretation. DATES: The notice ofproposed interpretation published December 23, 2010, at 75 FR 80746 is withdrawn as ofNovember 7, 2013. FOR FURTHER INFORMATION CONTACT: Robert Frenzel, Manager, Operations Law Branch, Regulations Division, Office of ChiefCounsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-3073; email: Robert.Frenzel@jaa.gov.

Issued inWashlngton, DC, on October 31, 2013. Mark W. Bury,

--------------- _____A.s.Ei_stant_Chi.ej_Cnn..n.selfm_Internatinn a I T**ow~** Legislation andRegulations,AGC-200. [FR Doc. 2013 26485 Filed 11 6 13; 8:45 arnJ BILLING CODE 491G-13-P

DEPARTMENT OF EDUCATION 34 CFR Chapter VI Negotiated Rulemaking Committee, Notice of Change to Schedule of Committee Meetings-Title IV Federal Student Aid Programs, Gainful Employment in a Recognized Occupation AGENCY: Office ofPostsecondary Education, Department ofEducation. ACTION: Notice ofintentto establish negotiated rulemaking committee. SUMMARY: On June 12, 2013, we announced our intention to establish a negotiated rulemaking committee to prepare proposed regulations to establish standards for programs that prepare students for gainful employment in a recognized occupation. We also announced the schedule for committee meetings. Because ofthe Federal Government shutdown due to a lapse in appropriations, we are rescheduling the second session ofcommittee meetings to November 18-20, 2013. In addition, tho last day ofthe second session will end at 5:00p.m. instead of at noon. DATES: The dates, times, and locations ofthe committee meetings are set out in the Schedulefor Negotiations section under SUPPLEMENTARY INFORMATION, below. FOR FURTHER INFORMATION CONTACT: For information about the content ofthis notice, including information about the negotiated rulemaking process, contact: Wendy Macias, U.S. Department of Education, 1990 K Street NW., Room 8017, Washington, DC 20006. Telephone: (202) 502-7526 or by email: wendy.macias@ed.gov.

For general information aboutthe negotiated rulemaking process, see The Negotiated RulemakingProcessfor Title IVRegulations, FrequentlyAsked Questions at http://www2.ed.gov/policy!highered!reg/hearulemaking/heaOB!negreg-faq.html.

Ifyou use a telecommunications device for the deaf or text telephone, ca11 the Federal Relay Service, toll free, at 1-800-877-8339.

Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION Because ofthe shutdown ofthe Federal Government due to the recent lapse in appropriations for fiscal year 2014, we announce that we are rescheduling the second session of committee meetings from October 21- 23, 2013 to November 18-20, 2013.

In addition, we announce that the meeting on the final day, November 20, 2013, will run from 9:00a.m. to 5:00 p.m., rather than from 9:00a.m. to 12:00 p.m. The revised schedule for the second session follows.

Schedulefor Negotiations: The committee will meet for its second and final session on November 18-20, 2013. The session will run from 9:00 a.m. to 5:00p.m. each day.

The meetings will be held at the U.S. Department ofEducation at: 1990 K Street NW., Eighth Floor Conference Center, Washington, DC 20006.

ElectronicAccess to This Document: The official version ofthis document is the document published in the Federal Register. Free Internet access to the official edition ofthe Federal Register and the Code ofFederal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents ofthe Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To usePDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents ofthe Department published in the Federal Registerby using the article search feature at: wvvw.federalregister.gov. Specifically, tlrrough the advanced search feature at this site, you can limit yoill search to documents published by the Department.

Program Authority: 20 U.S.C. 1098a. Dated: October 30, 2013. CONIACL--------------------------------------Brenda-D-aJrn.J\JI!1l<e"'ss>i;,.erc,-

____________ !=:IlPPI • nn TnnP Assistant Secretarvfor Vocational andAdult 12, 2013, we published a notice in the E,ducation, delegated the authorityto**p~rform** Federal Register (?8 FR 35 179) thefunctions and duties of theAssistant announcing our intention to establish a SecretaryforPostsecondaryEducation. negotiated rulemaking committee to [FRDoc. 2013-26492 riled 11-6-13; 8:45am] prepare proposed regulations for the BILLING CODE 4000-01-P Federal Student Aid programs 

## ================ authorized under title IV ofthe Higher Education Act of 1965, as amended (HEA) (title IV Federal Student Aid programs) that would establish standards for programs thatprepare students for gainful employment in a recognized occupation. In that notice, we set a schedule for the committee meetings and requested nominations for individual negotiators who represent key stakeholder constituencies for the issue to be negotiated to serve on the commiUee. DEPARTMENT OF ENERGY 48 CFR Parts 927, 952 and 970 RIN 1991-ABB2 Acquisition Regulation: Patents, Data, and Copyrights AGENCY: Department ofEnergy. ACTION: Notice ofproposed rulemaking. SUMMARY: The Department ofEnergy (DOE) is**~** II 

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