Softening Illegal Charter Compliance may not be justified

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FAA Weighs Penalties for Illegal Charter

 Compliance Philosophy is a good policy

Applicability to Illegal Charters not good fit

§ 91 .501 Amnesty Period? not risk Compliance

The father, or is it oracle or apostle,  of the Compliance Philosophy, John Duncan[1], has added a new chapter to this evolving policy. As reported by highly reliable and knowledgeable AINonline reporter, Kerry Lynch, the Deputy Associate Administrator for Aviation Safety, exposed some new dogma:


“Of late there’s been a reexamination of how much regulation is appropriate,”

When asked about what FAA has been doing about illegal charter operators, Duncan said the agency’s approach is to make sure operators have the proper understanding and education on how they need to comply. The FAA can approach compliance issues through its non-punitive Compliance Philosophy that establishes compliance actions, rather than enforcement, to address the problems, he added.

However, if the operator is unwilling or unable, he said, then the agency will use enforcement to either rehabilitate or move those operators out of the system. A concern though, Duncan added, is “if the event is not scary then the dollar amount is driven down.”

Over the past 10 years, the FAA has dealt with 288 such cases and the civil penalties combined for $10 million. Duncan pointed to a recent civil penalty involving a second case against an operator for $600,000. In his thinking, he said, that penalty should have been $6 million.[2]

“We’re actively working…to talk about how we can press the building of what amounts to new [regulation] toward recognizing that unwilling or unable is the highest safety risk in the [national airspace system].”

This application of Compliance Philosophy to illegal charters does not seem to build on the same premise as a foundation for others. The initial rational for using cooperation and collaboration is that the certificate holder has entrusted its safety data base with the FAA—Safety Management Systems. The operator here does not participate in SMS and almost tautologically, they cannot because these aircraft owners have not attempted to submit to qualifying for an FAA certificate.

The argument for Compliance Philosophy has been that the organization has exposed actions which have the potential for enforcement. The author of this concept, Associate Administrator for Aviation Safety Margaret Gilligan, recognized that SMS, some critics called “self-incrimination”, needed trust on both sides.



Other aspects of Gray Charters may not support application of the Compliance Philosophy:

  • 14 C.F.R. § 91 .501—is intended to define a different level of safety. To comply with the added flexibility of Part 91, instead of the rigors of Part 135, the operator must meet certain very explicit economic tests. The failure to meet these rules creates a presumption of INTENT TO VIOLATE.
  • The rules at issue are not applied in an operational context. Variation from these standards is not a matter of “pilot fatigue” or “degradation of skills.” The use of other standards is a matter of conscious choice.
  • With an asset of such capital value and a machine which holds significant operational damage, the owner is HIGHLY UNLIKELY to take out a piece of paper and write down a list of things which the dry lessor must use—grade of gasoline, minimum weather conditions, etc. It is fair to presume that a contract has been drafted by a lawyer and that the attorney has researched the applicable laws.










  • Ignorantia juris non excusat – yea, yea, 14 C.F.R. § 91 .501 is not taught in most law schools, but through the educational efforts of AOPA, NATA and NBAA, almost all pilots can list the costs which may be shared.

Order 2150.3B and Order 8000.373 were carefully crafted to meet a host of FAA statutory, APA and other legal mandates. Creating exceptions to those rules could eventually swallow the Compliance Philosophy. The consequences to SMS and/or enforcement are difficult to predict, but could be problematic.

One quick way to address the Gray Charter problem might be to declare a § 91 .501 amnesty period. Like?

Come to the FAA between Day 1 and Day 180,

declare your problem/quandary,

receive guidance on proper legal terms

PERHAPS be put into a fast cue for Part 135 certificates.

Everything must be completed by Day 360?

After day 361, full enforcement for any failure to comply?

The Compliance Philosophy has been a big success and the two Orders are essential foundations for the policy’s long term efficacy.

[1] Perhaps John Allen deserves credit for first articulating the concept of compliance over civil penalties in 2012. His initial explanation was also at a NATA conference!!!

[2] Curiously, this list of exemplars does not include the Hinman case which as a proposed CP of $3.5M and is serious enough that it is being litigated in Federal District Court,


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1 Comment on "Softening Illegal Charter Compliance may not be justified"

  1. 1990-1994 I was an FAA Ops inspector in SW Region at the SAT-FSDO. I did several violations against folks for operating as an air carrier without holding an Air Carrier Certificate. All of my cases were successfull. I was the only ASI in my office that would investigate these complaints & I taught my operators how to protect themselves from these illegal operators. I was popular with them, the illegal guys hated me. Neither FSDO or SW Regional leaders cared. All they cared about was their careers & the old work program sent down by Congress. The Certified On Demand Air Carriers did not matter.
    Because of my health I transferred to ABQ-FSDO, it was a toilet compared to SAT-FSDO. In 1996 I had enough and left the agency; I have never regretted it.
    Softening! The agency needs to nail illegal operators, anyone that dies on an illegal carrier puts the life insurance at risk because the operation has not been indemnified by the Sectary of Tranortation. My guess that lots of life insurance carriers have no idea and have been paying when they did not have to. I taught my operators to explain this to their customers. An illegal operator could be liable for all the lives & a business that puts their employees on the flight would be liable as well.

    Thank you

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