Opponents raise objections over Subpart K frax rules

 - May 29, 2008, 7:05 AM

“We oppose this proposal in every part and recommend that it be withdrawn.” This was the terse comment from fractional pilot Thomas Gasta to the FAA’s proposed regulations covering fractional aircraft ownership. The proposal, whose comment period is closed now, received more than 200 responses. The vast majority of the responses supported the notice of proposed rulemaking (NPRM) in its entirety or with minor suggested changes. But a few commenters, like Gasta, had serious reservations with all or part of the proposal.

Most of the negative comments came from entities that didn’t have direct representation on the Fractional Ownership Aviation Rulemaking Committee (FOARC), the joint FAA-industry task force that developed the recommendations on which the NPRM is based. The committee consisted of 27 representatives of air-taxi operators, fractional program operators, airframe manufacturers, business aircraft operators, insurance providers, leasing organizations and aircraft management companies.

Gasta said he is an example of one of the disenfranchised segments–the fractional program pilots. A pilot for Executive Jet Aviation, he also represents the 1,200 EJA pilots for the International Brotherhood of Teamsters (IBT). His comments were written on Teamsters letterhead as an elected union representative.

The proposal was written “without involvement of the thousands of pilots flying for fractional companies,” he said. “It was written simply to keep fractional operators from being required to comply with various safety regulations found in FAR Parts 121 and 135. It was written to appease the interests of the charter and corporate world rather than the interests of public safety.” Specific objections with the proposal that Gasta addressed included the proposed rules as they pertain to operational control, maintenance requirements and duty and rest times.

Ray Benning, director of the airline division of the IBT, expressed the union’s disagreement with the basis of the proposal–that “fractional and on-demand operations are different from other air-transportation operations” in the context of responsibility, accountability and safety. “We therefore see no convincing reason to set such operations apart by establishing less stringent and, hence, less safe operating practices.” Benning focused his comments on the proposed duty and rest time limits, which are less demanding than those for Part 121 or 135 operations.

Executive Jet’s Gasta wasn’t the only pilot to complain of non-representation on FOARC who criticized the proposal. There were several others (a few whom refused to identify themselves), including EJA pilot Richard Smith (not to be confused with EJA’s executive-v-p Richard Smith). Smith complained that the committee was made up of “industry management who not only have a vested interest in safety, but who also have a vested interest in controlling costs.” He singled out the proposed rest requirements as “ludicrous” and asked, “Why do we still have different rules for Part 135 operators and another set of rules for Part 121 operators?” Smith alleged that the “cumulative effects of working several consecutive days of 14 hr on and 10 hr off (as is often experienced by fractional crews) were also ignored.”

The issue of operational control “has been danced around, but never honestly addressed by FOARC,” said Smith. “Fractional owners have no control over the flights they book except to define the departure time and place and the destination. The determination of which aircraft will cover the trip, the actual operation of specific aircraft and whether or not a third-party provider is used for the trip is determined by the corporate entity providing the fractional-ownership service. [Fractional providers] are no different from a major airline.” Therefore, Smith concluded that fractional providers require “even more corporate management and federal oversight” because of these circumstances.

Smith called the proposed revision of the 60-percent runway rule an “appeasement” to the charter community. “It makes no sense whatsoever to lessen the safety requirements that have worked so well for decades just to remove a financial injustice from a segment of the aviation community.” Instead of eliminating the 60-percent rule and weather requirements for air-taxi operators, Smith would keep them in Part 135 and apply them to fractional operators under Part 91. Finally, Smith faulted the proposed rule for not requiring fractional operators to use FAA-certified dispatchers and professional meteorologists.

‘Working Pilots Like Mules’

An anonymous commenter who claimed to be a pilot for a large fractional-ownership program that was a member of the FOARC is concerned about the “ramifications of the extended duty days reaching 16 hours,” as permitted under the proposed rule. “Extended duty is not the safest way to make up for mismanagement or under-staffing of pilots.” Growth of the fractional industry calls for more than simply “working the pilots like mules.” This pilot wants fractional-ownership programs tailored to Part 135 requirements.

No requirement for dispatchers is the main gripe with the NPRM from the Airline Dispatchers Federation (ADF), a Washington group that represents about 1,100 airline dispatchers. ADF president Giles O’Keefe believes that requiring the use of dispatchers will ensure proper operational control, the proposal’s “most serious shortcoming.” Fractional aircraft ownership operations and charter companies would be regulated under Part 121, if ADF gets its way. Among the staff requirements for operators under Part 121 are certified dispatchers.

ADF said there is “clear evidence” that charter operations without the benefit of dispatchers are not as safe as they could be. “The recent [fatal] crashes of a Gulfstream III at Aspen and the [Cessna 402] accident that killed R&B singer Aaliyah [and eight others] sadly highlight that fact since both accidents appear to be linked to dispatch-specific contributing factors.” ADF went so far as to suggest the Aspen accident would never have happened because it “could not have been legally authorized to depart.” The association noted that Executive Jet uses qualified dispatchers in its NetJets fractional program.

Another organization that has misgivings over the proposal is the Professional Airways Systems Specialists (PASS), the union that represents more than 11,000 FAA employees, including aviation safety inspectors responsible for ensuring compliance with the FARs. According to PASS, operational control and responsibility is “ambiguous” under the proposed rule. The union believes that “more direction as to who is ultimately responsible for the ‘operation’ of the aircraft is necessary.”

Specifically, the union is concerned that if this rule is issued as proposed, “it will not require the necessary oversight and surveillance by FAA safety inspectors to ensure the level of safety desired.” The union also believes that revising the runway distance limitations rule from 60 percent to 85 percent is not justified on the basis of “limited data” regarding overrun accidents. It also said that fractional pilots should be on an FAA-approved drug-testing program and not just receiving education and training, as the proposal requires. Additionally, PASS believes flight and duty times should be the same as for Part 121 or 135, and fractional aircraft “should never” be used for Part 135 operations. “The [aircraft] owner should never be in operational control.”

Airport Operators Not in FOARC

Although no representative for airport operators was on the FOARC team, there were negative comments from only a couple of airport interests. Most notable among these was from Santa Monica (Calif.) Airport manager Robert Trimborn. After noting that FOARC included neither airport operators nor community representatives, he contended that “fractional operations account for increasing proportions of noise violations, as well as use at Santa Monica Airport.”

Trimborn said revising upwards the runway distance limitations requirement increases access by fractional and air-taxi aircraft to “thousands of additional airports” and also increases the size of aircraft that will be allowed to use these airports. He suggested that the FAA conduct a study to determine the effect of these increased operations on safety, noise and congestion at Santa Monica and other general aviation airports.

Trimborn’s comments were echoed by comments from the Sunset Park Neighborhood Association, a coalition of communities surrounding Santa Monica Airport and the Santa Monica law firm of Condon, Condon & Festa. Using the more liberal 85-percent rule instead of the 60-percent rule will indeed open up additional runway-limited airports to larger air taxi airplanes, according to FOARC’s own study (see charts on page 42).

Marc Fruchter, a member of FOARC and owner of Marc Fruchter Aviation in Reading, Pa., wants two additions to the proposal “to prevent owners from using their shares to provide illegal commercial travel” on fractional aircraft, a problem that he said is acknowledged by fractional program companies. Fruchter recommended that all solicitation for share purchases be mandated to contain “exact definitions and explicit warnings about the legal and economic consequences” of illegal commercial use of fractional share flights. In addition, Fruchter suggested that the rules “spell out” penalties against the share owner and fractional provider should this activity occur.

Raytheon Aircraft Charter & Management took issue with the 25-hr proving flight requirement of the proposed revisions to Part 135, saying, “There is no increase in safety realized by flying an aircraft 25 hours to ‘prove’ it can be operated safely.” Such a requirement is an unnecessary “economic burden” to the carrier and fails to take into account current regulations and advances in modern technology, it said. “There is nothing that occurs during proving flights that cannot be simulated on the ground.” If there must be proving flights, said Raytheon, they should be limited to six hours.

AOPA doesn’t think the proposal makes a clear enough distinction between fractional operators and multiple-ownership arrangements of light general aviation airplanes. The association said the definition of a fractional program should include the requirement that a “professional flight crew” be provided. By “professional,” AOPA means career or salaried individuals, people who make their living flying airplanes.
The association hopes this distinction “would make it clear that multiple ownership programs using smaller single- and multi-engine aircraft are excluded from the proposed fractional rules.”

The association also recommended that any new security mandates for Part 135 air-taxi operators should also apply to fractional-ownership programs.

Under proposed Part 91 Subpart K, fractional aircraft will have to be equipped with CVRs, FDRs, GPWS, weather radar and TCAS. Dassault Falcon Jet noted that the rule doesn’t say when this equipment must be installed, so the airframe manufacturer wants the rule to contain a compliance schedule that will “ensure sufficient time for the required equipment to be ordered and installed.” The FAA intends to implement this proposed rule, if adopted, within a 15-month period using a phased-in compliance schedule, which would allow continued operations under existing Part 91 while incrementally transitioning to the new regulatory requirements. But 15 months may not be sufficiently long enough to accomplish the installations. In any case, the schedule should not be more stringent than under Part 121 and 135, added Dassault.

The UK is taking an entirely different approach from the FAA on how to regulate fractional ownership. In comments to the docket on the NPRM, the UK’s Civil Aviation Authority doesn’t see fractional operations as being different from any other commercial operation because “the fractional owner will have little or no involvement in the operation other than selecting a competent fractional-ownership program manager,” wrote the CAA. “The proposal appears to be contrary to the provisions of the Chicago Convention,” alleged the CAA. “A commercial air transport operation is defined in ICAO Annex 6 as ‘an aircraft operation involving the transport of passengers, cargo or mail for remuneration or hire.’ Fractional-ownership operations appear to fall under this definition given that they involve the transport of passengers for remuneration [to the fractional program provider].”

Stats Show Part 135 No Safer

It’s clear that many of the arguments against the frax proposal center on the perceived safety benefits of current Part 135 vs proposed Part 91 Subpart K and revised Part 135. Because there is no operational history, it’s impossible to validate that perception. On the other hand, actual statistics reveal a disturbing trend. According to comments to the docket submitted by safety analyst Robert E. Breiling Associates, the accident picture is better for Part 91 than for Part 135.

“Analysis of accidents involving Part 135 turbine aircraft operators vs those of Part 91 turbine operators over the years supports the fact that the more restrictive Part 135 requirements have had little effect on the accident involvement rate,” said Breiling. The Part 135 accident rate has been “continually worse” than that of Part 91 operators, who are “required to comply with far less restrictive requirements [than Part 135].”  

Style Air, a Van Nuys, Calif.-based air-taxi operator, did not take offense with any specific elements of the proposal, but said in its comments, “The FAA currently suffers from staffing shortages to sufficiently service Part 135 operators in a timely manner. The addition of training inspectors should be addressed before any implementation of new regulations.” Style Air said safeguards must be in place to prevent the marginal fractional operator “from providing less than the highest level of safety. Part 135 regulations provide the direction to achieve that level of safety,” notwithstanding Breiling’s statistics.  

Maintenance aspects of Subpart K didn’t escape criticism either. Airframe and powerplant mechanic Richard Wussler is opposed to the proposed requirement that maintenance inspection programs be approved by the local FSDO and that operators must use only FAA forms.  Wussler said that Part 91 requirements currently in effect are adequate. These rules permit operators to use manufacturer-approved maintenance programs and forms. He noted that these programs and forms have been approved by the FAA and “the current rules even provide for the FAA to intervene if it can be demonstrated that there is justification.”

Depending on how seriously the FAA reacts to these negative comments, particularly those concerning operational control and the duty time and rest periods, the final rule the agency eventually adopts could be far different from what’s been proposed. Not only would that be a disappointment to FOARC members, but resolving the issues raised by the respondents, each with their own special interests, could also further drag out a rulemaking process that began more than two years ago.