Who’s In Charge Anyway?

Two recent air carrier accidents, among others, have exposed a continuing weakness in FAA surveillance of charter carriers. One of the accidents occurred in New Jersey involving a Bombardier Challenger and the other a Learjet 24 in California. You may have heard or read about them. Key issues in the accidents involved operating certificates and operational control, in addition to other clear violations of the regulations governing charter flights.

Changing scene
In selling charter flights under Part 135 today many hands now get into the act. The charter playing field is confused by certificate holders, management companies, charter brokers, aircraft owners, lessees, contractors, and the ever present doing business as (dba) fictitious business names of operators. While these various business entities may be perfectly legal in structure, they present a formidable challenge for FAA inspectors to determine responsibility for any particular flight and the necessity for finding out who has operational control of a flight.

Indeed, in addition to their technical training perhaps POI’s and PMI’s should receive basic legal training to understand the intricacies of these arrangements between the parties. Maybe a lawyer should be assigned to all FSDO’s in order to ferret out the legality of the business arrangements and their compliance with regulatory requirements.

The key item that must be in place is of course a Part 135 operating certificate. But from here on there are many operators and owners who continue to attempt to get around the rules by obfuscating their business plan with leases, contracts, and verbal deals that are usually set up to use a certificate contrary to the regulations. It would seem that sometimes it takes a Philadelphia lawyer to make sense of the deals that are created.

Threats to technicians
In past articles we have written about the threats to technicians involved as a director of maintenance, supervising the operation of aircraft under Part 135. Many times the director of maintenance on the certificate is a part-timer located remotely from the aircraft base. He may be a technician who works at the shop that maintains the aircraft. The difficulty begins when the operating and maintenance records are not readily available on a regular basis for review by this person and he is not in daily contact with the aircraft or the operating personnel. The chain of information and hands-on contact becomes stretched and sometimes nonexistent, which was the situation in one of the cases cited. This is where the POI or PMI should step in . . . but in many cases is absent. Technicians involved should also pay particular attention to what entity they are working for . . .

Keep in mind that your own insurance carrier (if you have one) would be interested in the fact that you are a director of maintenance for a Part 135 air carrier. They might be inclined to deny a defense and insurance coverage for your activities on behalf of this carrier where their exposure was enhanced without their knowledge. In the alternative, steps should be taken to make certain that your maintenance performance is covered under the air carrier’s or some other policy of insurance for the overall operation. This should be in writing and acknowledged by all parties involved. You can rest assured in the case of an accident that you may be under the gun for certificate action, civil liability, and or, at worst, perhaps criminal liability. Yes, there has been a trend over the years to hold professionals and corporations criminally accountable for unintentional but allegedly criminal conduct in regard to accidents. Professionals and corporations have never been immune from criminal culpability based on their status alone. Furthermore, the willingness of society to assess criminal penalties is on the rise.

In one case the errant operator even went so far as to say that the people who maintained and flew the aircraft were independent contractors and therefore the operator had no responsibility for maintenance or maintenance records. Plaintiff lawyers and the FAA would argue that they were not independent contractors. The operator was trying to dump on the technicians who took care of the aircraft. An interesting concept. Regulations, however, require that an operator retain primary airworthiness responsibility regardless of any contractual arrangement for maintenance. This includes responsibility for maintenance and records. The operator of the charter flight added that he did not have to produce pay, flight, duty time, and training records for mechanics or pilots and maintenance records of payment for services on the aircraft. They failed to provide most of the requested records and stated absurdly that release of records would violate privacy regulations because pilots and mechanics were independent contractors. Very imaginative!

Weak surveillance
Most observers are aware of the weakness of FAA surveillance involved with Part 135 operators and the reluctance of principal operations and maintenance inspectors to cite their operators or shut them down. Emergency revocation is the best tool to accomplish this but there has been a tendency to avoid upsetting a certificate and opening a can of worms. Budgets for FSDOs are increased and POI’s and PMI’s earn more for their supervision of air carriers because of the additional work and overtime required. The FAA recently has started a process to tighten up its charter surveillance by redefining the concept of operational control of flight and maintenance activities. A revised and updated specification regarding control is due to be published shortly. The fact remains that FAA is woefully ill-equipped and understaffed to accomplish its charter surveillance jobs properly.

The companies described above are still under examination and will be for some time to come. Whoever performed maintenance on the aircraft and kept the records is still being unraveled and civil litigation continues. Rest assured that maintenance people are under pressure where the records are sketchy or their work questionable. Keep in mind also, that there is no statute of limitations on FAR violations. FAA can come after you anytime, anyplace for any violations.

FAR 135.13
The threats of being associated with air carriers that get in trouble with accidents and violations are ever-present, not only for FAR violations but for other results that can follow. Consider, for example, FAR 135.13(b)1,2. This simply says that if you are a management person for a 135 air carrier that had its certificate revoked you may be denied further employment in a management position at another carrier. The gist is that if you are tainted by the conduct that resulted in a sanction, you will have difficulty getting approved by the FAA for another air carrier management position.

The “taint” incidentally, does not have to result in certificate action against a director of maintenance (DOM) in order to affect his ability to participate as a management person at another carrier.

As another common example, consider where a 135 operator certificate was revoked. One of the reasons was that they were using aircraft that were not approved and listed in their operations specifications. The DOM does not have any say so, as a rule, over what aircraft the carrier uses in day-to-day operations. However, he does have supervision over the maintenance performed on them. Here the DOM is presumed to be aware of the contents of his operations specifications.

When he claimed he was innocent of any wrongdoing, the FAA said that he was responsible for aircraft operated in violation of FARs and his own operations specifications. This is strong stuff that should be carefully considered by all DOMs and technicians as well. Have you reviewed your companies operations specifications recently?

NTSB speaks
Regarding the spate of accidents involving Part 135 certificate holders, operators, their agents, lessees, or so-called contractors, one of the Board members stated recently:

“In general . . . except for initially certifying Part 135 operators, FAA oversight appears to be lacking . . . oversight of Part 135 operators is mostly limited to review of paperwork without actual physical inspections or equipment, maintenance or operational practices.”

Board Member Deborah Hersman.

It would appear that NTSB recognizes that the FAA does not have the resources or the people to oversee the various complex arrangements that have been created to circumvent the necessity for acquiring operating certificates. The advent of corporate shelters under various names is commonplace today. Please send your comments or other examples of abuse of the regulations to aerolaw@att.net.

 

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