FAA still not policing Part 91 management companies
There is an irony apparent in the events following the February 2005 Challenger accident at Teterboro. Investigators nearly ignored the primary cause of the crash, as the NTSB focused primarily on 14 CFR Part 135 operational control issues and the lack of FAA oversight as the secondary causes. The industry and the media then homed in on the FAA’s efforts to tighten the reins of operational control for 14 CFR Part 135 operators and the aircraft on their certificates.
The FAA enacted changes to its Operations Specifications A002 and A008 as well as FAA Order 8900.1. It then began evaluating operator compliance with the new measures and in some cases taking certificate action against operators who did not conform. Finally, the FAA pursued legal action against the principal officers of Platinum Jet Management, the company that operated the Challenger, and the two pilots involved in the crash.
But the irony of the Platinum Jet debacle is that the primary cause of the accident had little to do with charter or commercial operations. The cause was something far more basic. Platinum Jet mandated the practice of tankering fuel as a company cost-saving measure. When the Challenger 600 taxied for takeoff on Feb. 2, 2005, it was carrying too much fuel for the payload aboard and the center of gravity was too far forward. As a result, the pilot was unable to raise the nose at rotation speed, resulting in the aborted takeoff and the airplane’s departure from the runway and collision with a warehouse.
Clearly, the accident was the result of the company’s deliberate disregard of aircraft flight manual limits and willful or ignorant negligence on the part of the pilot-in-command. How could such blatant non-compliance occur without FAA knowledge? The answer is both simple and disturbing: Platinum Jet was an aircraft management company operating under 14 CFR Part 91 with virtually no FAA oversight. This gap in FAA supervision, left unresolved in the wake of the accident, still exists today.
There are hundreds of aircraft management companies operating in the U.S. While many of them possess Part 135 certificates and operate all of their aircraft to this standard, there are numerous companies that do not and, indeed, many that specialize solely in Part 91 management. These Part 91 companies enjoy loopholes in both the FAA regulatory and IRS tax structures. From a regulatory standpoint, they can manage aircraft as small as Cessna 172s and as large as VIP-configured airliners and oversee aircraft fleets of unlimited size. The management personnel are not required to have formal training or documented experience and they can be hired, replaced or fired with no notice to the local Flight Standards District Office (FSDO).
In addition, no documented operations procedures or pilot-training programs are required and no currencies, other than those specified by 14 CFR Part 61, are necessary. While training vendors must be specified in the letters of authorization for reduced vertical separation minimums or required navigation performance, the training programs themselves do not have to be described or approved. Furthermore, no approved maintenance programs are necessary other than those required by the aircraft manufacturer.
For the services they provide, Part 91 management companies are permitted to collect management fees from their clients. They may also bill for crew services, maintenance performed on client aircraft, aircraft cleaning and any other fees they deem appropriate and to which the client agrees. Part 91 management companies are exempt from the definition of a commercial operator laid out in 14 CFR Part 1.1, and since they do not charge their clients on a per-leg or per-person basis, they are also exempt from IRS Federal Excise Tax considerations as well.
While benefiting from the loopholes in the regulatory and tax structures, Part 91 management companies exercise de facto operational control of their clients’ aircraft as the FAA defines it for commercial operators. While 14 CFR Part 1.1 provides the primary definition of operational control––that is, “the exercise of authority over initiating, conducting or terminating a flight”–the FAA relies equally on the criteria listed in 14 CFR Part 119.53. These criteria include:
• Does the operator hire and pay the crewmembers?
• Does the operator train and qualify the crewmembers?
• Is the operator responsible for the airworthiness of the aircraft?
• Does the operator perform maintenance on the aircraft?
• Does the operator service the aircraft?
• Does the operator schedule and dispatch the aircraft?
• Any other issues the Administrator deems applicable.
A typical Part 91 management company performs nearly all of these services for its clients. Furthermore, if an owner’s trip plans clash with the management company’s operations policy, the company may restrict or modify an owner’s itinerary, thereby even limiting an owner’s ability to initiate or conduct a flight.
There are many management companies operating and maintaining aircraft for compensation with de facto operational control over those aircraft and with little to no FAA oversight whatsoever–precisely what occurred with Platinum Jet in its operation of the ill-fated Challenger at Teterboro.
Management Rules beyond the U.S.
It is noteworthy that among countries with a large business aviation industry, the phenomenon of unregulated aircraft management companies is unique to the U.S. For example, in Canada, anyone operating a large aircraft (greater than single engine) is required to possess a private operator’s certificate (POC). POC holders require approved management personnel, company operations manuals, training programs and an approved safety management system. A management company may operate an aircraft for a company with a POC, but the management company itself normally has either a POC or the commercial equivalent, an air operator’s certificate (AOC). Holders of POCs and AOCs are subject to similar government-regulated standards and oversight in the Canadian system.
The UK-generated Overseas Territories Aviation Requirements regulations also feature close oversight of private operators. In Europe, the European Aviation Safety Agency (EASA) still recognizes a difference between private and commercial operators for oversight purposes, but the regulations that govern these organizations have yet to be written in detail. When the final regulations are enacted, most European operators expect little difference between the EASA’s guidance for commercial and private operators. Unlike U.S. regs, under which the certificate of airworthiness (CofA) is tied to the aircraft alone, under EASA regulations the CofA is tied to an aircraft’s entire operating structure, so the agency can revoke it if an operation doesn’t meet its standards.
Would FAA oversight of Part 91 management companies have affected the outcome of the Challenger crash at Teterboro? While it is impossible to answer this question with certainty, requirements for qualified management personnel, an approved training program, an accepted operations manual, an approved maintenance program and regular audits by the local FSDO might have gone a long way to breaking the chain of events that ended in a serious accident. What form should oversight take? Management specifications for Part 91 management companies, similar to those issued to fractional operators under Part 91K, might be an appropriate answer. Certification might be another.
Regardless of the final form FAA oversight takes, the FAA will not demonstrate that it has learned the lessons from the Platinum Jet crash until it takes regulatory action for Part 91 management companies. The fact is that if the Challenger had been owner flown, the outcome would have been no different. The aircraft would still have been destroyed and the passengers would have still barely escaped with their lives. Without FAA oversight, the next passengers of an unsupervised Part 91 management company might not be so fortunate.
Chris Broyhill is the chief pilot for a corporate operator. A 20-year USAF veteran (retired as Lt. Col.) and Air Force Academy distinguished graduate, he is currently working on a Ph.D. in aviation from Embry Riddle. He was previously national chief pilot at Sentient/JetDirect/Wayfarer Aviation.