Next month’s scheduled adoption of the final fractional operation rules–Part 91 Subpart K–will likely reignite the controversy between the FAA, JAA and some European countries on what constitutes a private versus commercial aircraft operation. The JAA has no equivalent rule and doesn’t have plans to promulgate any, according to British aviation lawyer Ian Clark.
According to Clark, under Part 91 (as well as the Chicago Convention), a fractional operation is a private one. But for some European nations, the UK among them, it is considered a commercial operation because a company (the frax provider or management firm) is being paid to operate the airplanes. The UK uses this argument to interpret any “managed” aircraft as a commercial operation, Clark said.
Commercial operators are subject to more stringent regulations, and their operating expenses are higher due to additional requirements and increased airport and ATC fees. The more stringent regulations were designed to protect the flying public, but Clark maintains the rules shouldn’t include managed aircraft.
Additionally, both the owner and operator are accountable and liable for the operation. Said Clark, if only the operator were accountable and liable, then–and only then–should the operation be considered commercial.