Here's two Legal opinons from the FAA's Chief Counsel. the first quotes an NTSB Order which predates the earliest order found on the NTSB's website. If you're really interested you can locate a law library in your area which contains the NTSB orders and look it up.
THis later order quotes the earlier decision:
http://www.ntsb.gov/O_n_O/docs/AVIATION/3649.PDF
We will grant
respondent's appeal regarding the violation of
section 135.21(a), as the Administrator has identified no valid
reason for us to depart from our determiniation in Administrator
v.
Hughes, NTSB Order No. EA-2866 at 4 (1989), that this
"regulation, when read as a whole, applies to operators and not
individuals."
FAA Legal Opinion:
February 28, 1991
Subject: INFORMATION: Enforceability of Manual Provisions Against Part 135 Employees
From: Assistant Chief Counsel, Regulations and Enforcement Division, AGC-200
To: Manager, Commuter/Air Taxi Branch, AFS-250
We have been advised by the Assistant Chief Counsel for the Central Region that there appears to be some confusion concerning the enforceability of manual provisions against the employees of Part 135 certificate holders. This memorandum is intended to briefly review the law on this issue. Please feel free to distribute it to your employees.
FAR Sec. 135.21(a) provides in relevant part as follows:
Each certificate holder ... shall prepare and keep current a manual setting forth the certificate holder's procedures and policies acceptable to the Administrator. This manual must be used by the certificate holder's flight, ground, and maintenance personnel in conducting its operations...
While a reading of the rule might be taken as an indication that it is enforceable against Part 135 employees, since it requires that the manual be used by Part 135 employees, the National Transportation Safety Board has held otherwise. In Administrator v. Hughes, EA-2866 (November 30, 1988), the Board held that Sec. 135.21(a) applies to holders of operating certificates and not to individual employees of certificate holders.
If you should have any questions concerning this matter, please give us a call.
/s/
Donald P. Byrne
cc:AGC-220/AGC-200
FAA Legal Opinion:
June 10, 1981
IN REPLY REFER TO: ASO-7
SUBJECT: Enforceability of FAR Section 135.21(a)
FROM: Attorney, Office of the Regional Counsel
TO: ASO-200
The second sentence of FAR 135.21(a) provides that "This manual must be used by the certificate holder's flight, ground and maintenance personnel in conducting its operations." Your memo dated March 6, 1981, asks, in effect, whether, in light of the foregoing language, noncompliance with the certificate holder's manual by its employees in the conduct of air taxi operations would be a violation of Section 135.21(a).
We believe that Section 135.21 was never intended to be enforced in this manner. In arriving at this conclusion I have reviewed not only the appropriate regulatory sections but also the regulatory history of Section 135.21. Copies of this material are attached for reference.
Prior to the time Part 135 was amended in 1978 there only exists the requirement that a certificate holder "prepare and keep current a manual for the use and guidance of flight, ground operations, and maintenance personnel in conducting its operations." As noted above, amended language now provides that these individuals must "use" the manual. The question now arises as to the significance of this change.
Notice of Proposed Rulemaking 77-17 (42 FR 43490, August 29, 1977) included the following language pertaining to this change:
Section 135.23 [changed to Section 135.21 in the final rule] MANUAL REQUIREMENTS.
... In addition, this section would be revised by amending paragraph (a) to require each certificate holder who is required to have a manual to prepare a manual acceptable to the Administrator. Further, each flight, ground, and maintenance employee of the certificate holder would be required to use the manual in the conduct of the certificate holder's flight operations.
This language, on its face, would seem to imply that the FAA was about to make a radical departure from past practice by making noncertificated individuals (that is, ground employees) subject to disciplinary actions. Moreover, the change would be even more radical since we would be enforcing not only standards specified in the FARs but also internal company standards.
The extent of this change becomes apparent when considering specific cases. Consider, for example, a company manual requirement which provides that an aircraft refueler must turn in fuel slips to the chief of operations at the end of each day. Could the FAA logically take the position that if the refueler turns in the fuel slips at the end of each week and turns them in directly to the accounting department he would be in violation of the manual, and, therefore, in violation of Section 135.21(a) and subject to a civil penalty. The answer is self evident.
The language which was adopted in the final rule provides that the manual must be "used." The word "used" is, not defined in Part 1, so under the rules of construction we must apply its commonly accepted meaning. Webster's new collegiate dictionary provides the following definition.
USE (verb) 1. Accustom, habituate 2. to put into action or service; avail oneself of; employ 3. to consume or take (as liquor or drugs) regularly 4. to carry out a purpose of action by means of; utilize 5. to expend or consume by putting to use 6. to behave toward; act with regard to; treat
In considering this definition it is difficult to conclude that a requirement to use a manual is the same as a requirement to be bound by the manual. This conclusion is further strengthened when other language in the preamble and rule is considered. For example, the third sentence in Section 135.21(a), although addressing deviation, clearly implies that the manual is for the "guidance" of flight, ground and maintenance personnel. Guidance, by definition, is not mandatory but merely informatory.
After considering all of the material available and also after discussions with AGC-220 it seems clear that the requirement to "use" the manual was intended to mandate to the OPERATOR to insure that its personnel have sufficient guidance available and that company emphasis be placed on the use of this guidance. It was not intended to be enforceable against individual employees.
Now that the foregoing conclusion has been drawn a qualification must be inserted. In almost every case where enforcement action would be appropriate (that is, in cases other than the type used in the example above) there will be an appropriate FAR section other than 135.21(a) on which the violation action can be based. For example, if a pilot violates a manual's weight and balance provisions [see Section 135.23(b)], he will, in all probability, also be in violation of Section 135.185.
There will, of course, be times when an operator imposes on his employees a higher standard than required in the FARs. In a case where an employee violates this higher standard, under the guidance stated above, enforcement action would not be appropriate.
In summary, the rule of thumb should be that if an individual fails to comply with a part of the manual that is made mandatory by some section of the FARs other than Section 135.21(a) then the violated FAR should be cited. If, on the other hand, an individual violates a company standard not covered by the FARs then any enforcement action as to the violation of that standard should be at the discretion of the company.
This opinion has been coordinated with the Office of the Chief Counsel, Operations Law Branch, AGC-220 /s/
HERSCHEL H. HAMLEN, JR.
