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13

May,2016

Ambiguities in Fitness For Duty Requirements of 14 C.F.R. § 117.5

Have you ever been in a quandary as to whether you are “legal” under the rather ambiguous fitness for duty requirements of 14 C.F.R. § 117.5? If you are unfamiliar with this particular regulation, you will note that the essential rule is that “each flight crewmember must report for any flight duty period rested and prepared to perform his or her assigned duties.” Other than some of the rest requirements found in part 117, the only litmus test for “rested and prepared” under § 117.5 offered by the regulations is whether the crewmember is “too fatigued” to perform his or her duties in a safe manner. One ambiguity begets another… you are too tired when you are too tired. What’s worse is that even with very little to go on, the FAA has concluded (2014 WL 657509) that § 117.5(d) requires a flight crewmember to make a written affirmation that he or she is fit for duty each time that flight crewmember commences a flight segment under part 117. The issue here is that due to the subjective nature of the regulation, the FAA can potentially have a field day with you when it comes to an enforcement action – they even have you affirming statements and creating their evidence beforehand. How so?

 

Let’s say for example that a Captain for an airline finds him or herself pretty tired when he or she shows up to work. The Captain has satisfied all the rest qualifications found in part 117, but due to family stress/drama, finds him or herself pretty tired. The Captain is just plain worn out. Is it enough to bow out of work? That’s a question only the Captain can really answer for him or herself. If the Captain decides to fly and affirms in writing that he or she is fit for duty, but later goes on to have a runway incursion, you can bet your bottom dollar that the FAA will question whether or not the Captain was really “fit for duty.” Unfortunately, the FAA holds all the cards in a situation like this. The objective of the FAA will be to blame someone (or “figure out the cause”) for the runway incursion and an easy soulution would be to bring an enforcement action against the Captain for not really being “fit for duty.” It’s the Captain’s word versus the FAA’s  and when such subjectivity is allowed in the regulations, the FAA can pretty much say whatever it wants.

 

Another hypothetical scenario outlined in a recent FAA legal interpretation highlights more ambiguities in 14 C.F.R. § 117.5. This scenario poses the question of what a flight crewmember should do if he discovers that he is unfit for duty while flying in an airborne aircraft. 14 C.F.R. § 117.5(c) states that “no certificate holder may permit a flight crewmember to continue a flight duty period if the flight crewmember has reported him or herself too fatigued to continue the assigned flight duty period.” So, when a pilot reports him or herself too fatigued to continue the flight duty period while he or she is operating airborne, should the other flight crewmember declare a mayday emergency and land at the nearest suitable airport? Should the non-fatigued flight crewmember continue the flight while the fatigued flight crewmember takes an in-flight nap? Should the fatigued flight crewmember be permitted to perform any duties while fatigued? If the flight continues on with the flight crewmember in a fatigued state, can either or both flight crewmembers be subject to the catch-all enforcement regulation of 14 C.F.R. § 91.13: “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another?”

 

The FAA’s response to this hypothetical is that: “If a flight crew is augmented and there are non-fatigued flight crewmembers who are able to take over a fatigued flight crewmember’s duties, then they should do so to allow the fatigued flight crewmember to obtain in-flight rest. If a flight crew is unaugmented then the decision of whether to conduct an emergency landing will depend on the flight crewmember’s fatigue level. If the fatigued flight crewmember determines that he can safely land the aircraft at the intended destination, then he should continue to that destination and land. However, if the flight crewmember determines that he is too fatigued to safely land at the intended destination, then he should land the aircraft at the nearest suitable location to avoid accumulating additional amounts of fatigue while operating the aircraft.” Nonetheless, if a flight crewmember has to land a plane because he or she became to fatigued while airborne, the FAA is going to be curious as to why you admitted to being “fit for duty” when you embarked on the flight segment. What’s more is that even though a crewmember may be able to “take over” for a fatigued crewmember, the FAA may still consider this to be “careless or reckless manner so as to endanger the life or property of another” under part 91.

 

If you have any questions about crew rest requirements, part 117, or FAA enforcement actions, please contact The Pilot Lawyer at 855-FAA-1215 or visit on the web at www.ThePilotLawyer.com.

24

Aug,2015

FAA Ramp Checks: A Survival Guide

You’ve landed, taxied to the ramp, and are tying your Cessna 172 down for the night. But who is that guy walking across the ramp toward your plane…oh no, it’s the FAA! When you see the badge clipped to his shirt that says “FAA” in big letters, you’ll probably want to climb into the baggage compartment and hide, but don’t. If you understand the “Ramp Check” process and are properly prepared for an unexpected chat with the inspector, the chances are you will survive.

 

Remember back to when your flight instructor briefly mentioned “Ramp Checks.” It is likely he or she did not spend too much time going over the process of a “Ramp Check” because they seem fairly rare. If you are a flight instructor, it may be a smart idea to have a mock “Ramp Check” with your students before sending them off to solo. Nonetheless, what is a “Ramp Check?” Essentially, these checks are conducted to ensure that a licensed pilot or student pilot are conducting flight operations safely and within the parameters prescribed by the Federal Aviation Regulations. While most checks end with the inspector shaking your hand and saying “everything looks good,” it is possible for the check to result in an enforcement action. If the FAA initiates an enforcement action as a result of a ramp check, it is possible that your pilot’s license could be suspended or revoked, and/or you could face a civil fine. The stakes are high.

 

When will a “Ramp Check” occur? A ramp check is not scheduled and is unpredictable. A check will commonly occur when an inspector observes an unsafe operation in the traffic pattern or on the ramp, is notified by ATC of an unsafe operation, or just feels like checking out your operation to make sure you are in compliance with the rules. If you are approached by someone claiming to be an FAA inspector, make sure you ask for identification before proceeding with the check, as the inspector is required to present identification prior to initiating a check. If the inspector does not present identification, make note, as that may become part of your defense if the check proceeds to an enforcement action. Furthermore, the inspector may not detain you if it means you will miss a flight or an appointment; he or she may only detain you long enough to check your records.

 

Once the “Ramp Check” is initiated, however, what can you do to ensure you keep your nose clean with the FAA? Most checks will include an inspection of the pilot’s airman and medical certificates, the aircraft paperwork, and an exterior inspection of an aircraft. Your pilot certificate will be inspected to make sure that you are licensed for the operations that you a conducting. For instance, if the inspector witnesses you landing in IFR conditions, he or she will look at your certificate to make sure that you are an instrument rated pilot. Furthermore, your medical certificate will be checked to make sure you are conducting operations within your class medical. Again, the inspector is making sure that for instance you aren’t conducting commercial operations with a third class medical. And if you are a student, your logbook will be checked for records of currency, solo endorsement, etc.

 

As to your aircraft, the inspector will want to make sure you have certain documentation/equipment onboard. Do you remember ARROW from your training – now is the time to use it! The inspector will want to see that you have with you your aircraft’s airworthiness certificate, aircraft registration, weight and balance information, and operating handbook. Beyond that, the inspector is authorized to inspect: the aircraft’s minimum equipment list (if applicable), Aeronautical charts (if applicable), the general airworthiness of the aircraft, the ELT battery, the seats/safety belts. Furthermore, the inspector can conduct a VOR check. It is important to remember, however, that the inspector is not authorized to board your aircraft without the knowledge of the entire crew; however, the inspector may inspect the exterior and look through the windows. Again, if the inspector boards your aircraft without the knowledge of the crew, note that, as it may become part of your defense if the check leads to an enforcement action.

 

Always remember to prepare for an unexpected FAA “Ramp Check,” as preparation is your only chance to survive one of these checks. Furthermore, if the check is in response to a possible violation, anything you say can be used against you. If you have questions about “Ramp Checks” or are the subject of a check, contact your team at The Ison Law Firm. We are standing-by 24/7 to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

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