The NTSB recently affirmed an ALJ’s determination that an airman’s removal of all of an aircraft’s passenger seats did not exempt the airman from the requirement that he possess an air carrier certificate in order to carry cargo for compensation or hire. In Administrator v. Gorman, the FAA alleged that the airman, after being notified on multiple occasions that his cargo operations were in violation of FAR Parts 119 and 135, continued to carry cargo for compensation or hire at least 20 times.
The specific regulations allegedly violated by the airman included FARs 119.5(g) (prohibiting operating as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications), 119.23(b)(1) and (2) (requiring one who conducts non-common carriage or private carriage operations for compensation or hire, with airplanes having a passenger-seat configuration of less than 20 seats and a payload capacity of less than 6,000 pounds, to comply with Part 119, Subpart C, certification and operations specifications requirements, and Part 135 operations requirements), 119.33(b)(2) and (3) (prohibiting a person other than a direct air carrier from conducting any commercial cargo aircraft operation for compensation or hire under Part 121 or Part 135 unless that person obtains an operating certificate and operations specifications that prescribe the authorizations, limitations, and procedures under which each kind of operation must be conducted) and 135.293(a) and (b) (prohibiting a person from serving as a pilot unless, since the beginning of the 12th calendar month before that service, the pilot has passed a test on that pilot’s knowledge and a competency check in that class of aircraft).
Based upon the alleged violations, the FAA issued an emergency order revoking the airman’s commercial pilot certificate and any other certificates held by the airman. The airman then appealed the order and a hearing was held. After the hearing, the ALJ determined that, despite multiple warnings from the FAA, the airman had engaged in cargo operations for compensation or hire without the appropriate air carrier certificate. As a result, the ALJ affirmed the FAA’s order of revocation.
On appeal to the full NTSB, the airman did not deny that he operated the flights or that he had not complied with FARs 119 and 135. Rather, he argued that the regulations he allegedly violated were not applicable to his operations. According to the airman, the language in FAR 119.23(b) that “an airplane having a passenger seat configuration of less than 20 seats,” did not include aircraft with “zero” passenger seats installed, such as “all-cargo” aircraft like those operated by the airman. He also argued that FAR Part 119 did not apply to his operations, given the ambiguity that he argued exists concerning “all-cargo” airplanes, in spite of the FAA’s interpretation of FAR 119.23(b) to the contrary. The FAA responded that, “if someone removes all the seats, they now have a passenger-seat configuration of zero,” and that zero passenger seats is still “less than 20.” As a result, the regulation applied to the airman’s “all-cargo” operations.
The Board initially observed that “we are bound by all validly adopted interpretations of laws and regulations that the Administrator carries out, unless we find that an interpretation is arbitrary, capricious, or otherwise not in accordance with law.” It then deferred to the FAA’s interpretation of the regulation and affirmed the ALJ’s finding that the FAA’s interpretation of the regulation was reasonable. The Board also noted the ALJ’s observation that the airman’s aircraft were type-certificated with passenger seats and his mere changing of the passenger-seat configuration to zero when he removed the passenger seats did not change the aircrafts’ type certification for passenger seats.
Based upon the FAA’s interpretation of the regulation, the Board agreed with the ALJ that the airman had violated the FARs as alleged by the FAA. With respect to the sanction of revocation, the Board concluded that revocation was appropriate where the airman “deliberately continued his commercial operations on at least 20 occasions, based on his insistence that he was right and the Administrator was wrong.”
Although the airman’s argument was interesting, and not without some merit, it wasn’t enough to overcome the deference the NTSB is required to give the FAA’s interpretations of the FARs. In order to win that battle, the airman would have had to show that the FAA’s interpretation was unreasonable and arbitrary, capricious or contrary to law and precedent. Unfortunately, that is tough burden to meet.
