4th Quarter Journal 2013 - (Page 35)

BY GREGORY S. WINTON, ESQ. FAA Chief Counsel Interpretations A ccording to the U.S. Supreme Court, under the principals of judicial deference, Courts must defer to the FAA's reasonable interpretation of its own regulations. See Martin v. OSHRC, 499 U.S. 144 (1991). Accordingly, when the FAA advances an interpretation of a matter wholly within the FAA's statutory authority, the Courts must defer to that interpretation in the absence of finding that the interpretation is arbitrary, capricious, or otherwise not in accordance with law. See Gorman v. NTSB, 558 F.3d 580, 588-589 (D.C. Cir. 2009). Recent Chief Counsel Interpretation-Restrictions on FAR Part 91 flight operations for aircraft designated as "exclusive-use" under Part 135 According to a legal interpretation issued by the FAA Office of Chief Counsel on July 19, 2013, if a certificate holder conducting on-demand operations pursuant to 14 C.F.R. Part 135 designates an aircraft for "exclusive use" pursuant to § 135.25(b), then the aircraft owner can no longer occasionally use the "exclusive-use" aircraft for flight operations under Part 91. It is instructive to note that a certificate holder conducting on-demand operations is required to obtain operations specifications (OpsSpecs) issued under § 119.49(c). The requirement for an "exclusiveuse" aircraft under § 135.25(b) is one of the critical components for establishing operational control. Although a certificate holder is able to use or authorize its employees or agents to use the "exclusive-use" aircraft for operations other than under Part 135 as provided in § 135.25(b), that provision of the Federal Aviation Regulation (FAR) only applies to the certificate holder. To allow any other person or entity to use the aircraft would render the definition of "excusive use" in § 135.25(c) meaningless. As a result, if an aircraft owner occasionally uses the "exclusive-use" aircraft for operations under Part 91, then the aircraft cannot meet the regulatory definition of "exclusive use" since there would not be 'sole possession, control, and use of an aircraft' by the certificate holder. According to the FAA Chief Counsel, "[t]his would be true whether the owner piloted the aircraft or used another pilot authorized by the certificate holder to fly the aircraft for the owner. The certificate holder would no longer have 'sole possession, control, and use' of the 'exclusive-use' aircraft." What does this mean to a certificate holder conducting on-demand flight operations pursuant to Part 135? It is important for an air carrier to review its current OpsSpecs in order to determine which aircraft has been designated for "exclusive use" pursuant to 14 C.F.R. § 135.25(b). Furthermore, the operator must ensure that if the aircraft is operated under Part 91, then the flight is in compliance with the regulations and the current FAA Chief Counsel interpretations. FAA Enforcement The following case describes an FAA enforcement action arising from an alleged violation of Continued on page 36 Aviation Business Journal | 4th Quarter 2013 35

Table of Contents for the Digital Edition of 4th Quarter Journal 2013

President's Message
From the Ground Up
Navigating Through healthcare Reform
2013 International Update
Veterans Airlift command: they've got heart; they need wings
FAA Chief Counsel Interpretations
Free is a Very Good Price
Marketing Strategies for Driving Share of Wallet
State Tax Changes for 2013
A Beginner's Guide to Rulemaking
Advertiser's Index

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