Europe inches closer to interim frax rule

 - October 23, 2006, 8:03 AM

At the EBACE gathering in Geneva earlier this year, the joint industry working group on business aircraft operations (IWG-BAO), which includes NBAA, the European Business Aviation Association (EBAA) and the General Aviation Manufacturers Association (GAMA), presented the initial findings of its work on corporate, fractional and commercial operations, with a view toward making a recommendation to the ECAC Task Force on fractional ownership.

Brian Humphries, EBAA CEO and co-chairman of the IWG-BAO, emphasized that the aim of the working group was to develop a set of recommendations for a European framework for harmonized safety and economic rules. Humphries also explained the need to harmonize the rules of private and on-demand charter flights between the U.S. and the European Union.

The group initially expected to issue its final report by the end of May, but at press time a copy was not available from EBAA.

The JAA’s work on JAR-OPS 2 regulations for private operations is still in draft form. It would establish a pan-European non-commercial air transport rule since the new European Aviation Safety Agency (EASA) has not yet assumed responsibility for air operations.

“There is a distinctly un-level playing field for EU operators flying to the U.S.,” explained Mark Wilson, head of one of the two IWG-BAO subgroups and CEO of the UK business aviation association, BBGA.

For example, European charter operators need to obtain a permit to conduct occasional flights into the U.S. The U.S. DOT currently limits these flights to six per year (unless the operator applies for U.S. Part 129 foreign carrier certification), and cabotage is not permitted under any circumstances. However, obtaining a Part 129 license is a lengthy and expensive process.

In addition, the Transportation Security Administration (TSA) is responsible for authorizing flights to and from and within the U.S.; private flights, however, have visa waivers. According to Gary Garofalo, a lawyer with Garofalo Goerlich Hainbach in Washington, D.C., TSA inspectors are “confused and inconsistent.” By contrast, there are no restrictions on U.S. charter flights to Europe.

“We would like to increase the number of flights to 12 per year,” Wilson emphasized. NBAA v-p of operations Steve Brown agreed that there was a strong case to increase the quota of “occasional planeload” charter permits.

Brown said there is also a need to improve the response times for the granting of those permits: fewer than five days for the first permit (instead of 30 to 45 days) and fewer than 48 hours for the subsequent ones, to mirror European timescales for U.S. operators.

The IWG-BAO also made recommendations in the field of business aircraft security in view of the ongoing revision of EC Regulation 2320. The working group wants specific rules to apply for non-commercial aircraft and commercial small aircraft flights.

In the case of an aircraft flying within Europe or from Europe, specific rules would apply. In the case of an aircraft flying from the U.S. to Europe, government monitoring would apply. Security proposals will be developed as part of the Transportation Security Administration Access Certificate (TSAAC) initiative.

There is, however, a need for clarity about how an aircraft is operated, especially for aircraft operating as both public and private transport. The solution could be in the form of an operator’s statement, which has to remain in the cockpit during the flight– under penalty of law. That is the case already in the U.S.

In Europe, a flight is considered private when the owner is accountable for the management of the flight; the owner of the aircraft might be the same but the aircraft used for different operations.

European air-taxi operators are concerned about this situation, which penalizes them vis-à-vis private operators conducting occasionally commercial flights.

Furthermore, there is currently no regulatory framework for fractional operations in Europe, since there is no equivalent of FAR Part 91 Subpart K, the U.S. rule governing fractional ownership, because each ECAC country has its own interpretation of the legal status of such operations.

“We made a comparative analysis among FAR Part 91 Subpart K, Part 135 and JAR-OPS 1 and we found no significant safety differences. Part 91K is a sound basis for developing rules for fractional operations in Europe,” noted Wilson.

Glenn Cronin (UK DoT), chairman of the ECAC Special Task Force on Fractional Operations, sees a need to develop recom- mendations to the directors general of civil aviation (DGCA) about how to handle such operations.

Since the EASA still has no authority in this field, an interim solution must be developed. Since safety is not an issue, European authorities would be ready to accept U.S. fractionals’ being operated under private rules (under FAR Part 91 Subpart K rule) in Europe, without the requirement to have an air operators certificate to operate within Europe. However, the ECAC official insisted that approval of this compromise would depend on finding a satisfactory solution to the lack of security oversight by the U.S. government.

The ECAC special task force expected to complete its work in August, and IWG-BAO representatives are hopeful that the adoption of this interim solution for fractionals will help maintain the status quo.

With this interim solution with- in the ECAC framework, the legal debate on fractional ownership rules is far from settled in Europe. Humphries noted with satisfaction, “We have bought time for the status quo to continue.”