4th Quarter Journal 2013 - (Page 35)
BY GREGORY S. WINTON, ESQ.
FAA Chief Counsel Interpretations
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
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.
The following case describes
an FAA enforcement action arising from an alleged violation of
Continued on page 36
Aviation Business Journal | 4th Quarter 2013
Table of Contents for the Digital Edition of 4th Quarter Journal 2013
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
4th Quarter Journal 2013