New rules challenging for charter operators

 - January 25, 2007, 5:30 AM

In part because of a high-profile charter crash at Teterboro Airport (TEB) early in 2005 and several other accidents involving responsibility for operational control, the FAA late last year released its long-awaited Operations Specification (OpSpec) A008 and related guidance regarding operational control in Part 135 charter operations.
The new A008 for Part 135 air charter operators also affects many aircraft owners who have placed their aircraft on a Part 135 charter certificate, as well as the charter operators themselves.

NBAA and the National Air Transportation Association (NATA) advocated on the industry’s behalf and co-hosted with the FAA 10 one-day briefing sessions for FAA inspectors to hear the voice of the industry on the initiative.

In a letter to members, NBAA said Part 135 air charter operators and aircraft owners with aircraft on charter certificates should understand OpSpec A008. “One thing is  certain: it has never been clearer that charter operators must retain operational control of all charter flights at all times,” wrote NBAA president and CEO Ed Bolen. “[The] FAA has been aggressively pursuing enforcement actions against charter operators who have relinquished, surrendered or lost operational control. Don’t let this happen to you.”

Although NBAA and NATA applauded the spirit of the new OpSpec, both organizations immediately sent letters to the FAA seeking clarification of some problematic aspects of A008. Among NATA’s concerns is that the FAA has decided to tie pilot pay to operational control. The guidance states that if the pilot is paid by the aircraft owner during the time that pilot serves on a revenue flight, in the eyes of the FAA the pilot is not an agent of the carrier and the owner is “providing” the aircraft and pilot to the operator, constituting a “wet lease,” and indicating that the operator does not have operational control.

NBAA said key elements of the guidance are vague and provide no guidance about how to comply, while others seek to regulate business and economic matters not related to aviation safety and do so in a manner that unnecessarily interferes with reasonable and accepted business practices that do not affect operational control. “Furthermore, the guidance focuses primarily on articulating a ‘laundry list’ of areas that could be viewed by FAA inspectors as problems, while providing no bright line test or safe harbors for aircraft owners and on-demand air-taxi operators to rely upon in determining what they should be doing to comply,” NBAA said.

Control Issues Come to the Fore
NATA claimed it was successful in educating the FAA about the charter industry’s business models and mitigating many of the negative effects that A008 could have had on the Part 135 community. The association said it secured a 60-day implementation schedule that will allow members time to make necessary revisions to their management agreements, OpSpecs and general operating manuals.

“All Part 135 operators must be diligent in the implementation of this OpSpec,” said NATA president Jim Coyne. “The FAA is investigating operational control violations even as A008 is being published.”

Although the NTSB has cited questionable or absent operational control in several recent business jet accidents, it was the crash of a chartered, improperly loaded Challenger 600 at TEB on Feb. 2, 2005, that focused the spotlight on the murky issue of who has operational control.

The NTSB said the FAA contributed to the accident by failing to provide surveillance and oversight of operations conducted under another company’s Part 135 certificate and by giving tacit approval to such arrangements between the charter provider and the certificate holder.

As the FAA developed A008, NBAA coordinated a series of meetings between its members and FAA officials to ensure the agency had a chance to hear the opinions of the business aviation community on the issue, and that policies concerning the matter would be effective and workable for the industry. FAA officials incorporated a number of industry suggestions into the revised OpSpec A008, NBAA said.

“While NBAA succeeded in removing the particularly harmful provisions in the draft OpSpec and securing a significantly improved final document, the FAA could not make every change for which NBAA advocated because of existing regulations and longstanding regulatory interpretations,” Bolen’s letter said. “NBAA will closely monitor this [situation] and address our members’ ongoing concerns with the FAA.”

NATA sent a letter to the agency early last month expressing a few concerns over A008. “Overall, NATA is pleased with the outcome of the year of coordinated government-industry efforts,” Coyne said. “The resulting OpSpec will require changes to many Part 135 operations but is far less Draconian than the OpSpec proposed by the FAA almost a year ago now. This OpSpec is workable for the industry and we look forward to assisting our members with compliance.”

After receiving a letter from their principal operations inspector indicating they are being issued the new OpSpec, all affected Part 135 certificate holders have 10 days to respond with any written views, arguments or amendments. Operators then should revise manuals and procedures as necessary to ensure compliance and sign-off the new OpSpec no later than 60 days after they receive notification from their principal operations inspector, but no later than March 15.