FAA Issues "Operational Control" Guidance

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The latest government reaction to the Feb. 2, 2005, crash of a Bombardier Challenger CL-600-1A11 at the Teterboro Airport (KTEB) in New Jersey was published last week in the form of a newly revised operations specification (OpSpec) for Part 135 charter operators. The new OpSpec, A008, was published Dec. 28, and is a direct reaction to NTSB findings that the charter flight was being conducted without proper FAA certification or compliance with FAR Part 135. The FAA said it had "become aware" of business practices calling into question "whether an air carrier has control of its operations purportedly conducted under the authority of its certificate." According to the FAA, the revised OpSpec allows it to ensure "who is responsible and who should be held accountable for the safety of any flight, whether commercial or not" by evaluating the "facts and circumstances surrounding that flight." The FAA hopes to clarify and prevent the kind of ownership and operational issues the NTSB believes precipitated the accident, in which the Challenger was operated by Platinum Jet Management LLC of Fort Lauderdale, Fla., under a management agreement with Darby Aviation, based in Muscle Shoals, Ala. As part of its reaction to the accident, which destroyed the airplane but did not result in fatalities, the FAA recently conducted a review of Part 135 operators. That review, according to the FAA, highlighted that numerous "Part 119 certificate holders conducting operations under Part 135 had been authorized to use several 'doing business as' (DBA) names, some of which were identical or substantially similar to the name of an aircraft owner and/or management company that is otherwise legally distinct from the air carrier."

According to the FAA, in some instances uncovered by its review, "it appeared that these parties characterized their business arrangement so an aircraft owner or management company purportedly could operate the aircraft in common carriage under the auspices of the air carrier’s certificate." For its part, the National Business Aviation Association (NBAA) reacted swiftly, sending a letter from its president, Ed Bolen, to all its member companies, noting, "Aircraft owners will need to understand and adhere to important limitations that are placed on their involvement with a charter company’s control of aircraft and crew used in Part 135 charter operations." According to NBAA, it "worked very closely with inspectors and legal counsel from FAA headquarters" during the new policy's development, believing early drafts severely impact the charter industry but without enhancing safety. In Bolen's letter, NBAA said it succeeded in removing the "particularly harmful" draft provisions in the OpSpec and will continue to work with the agency "on identifying problems" with it. The last three sentences of Bolen's letter well sums up the reasons for the NTSB's concern and for the FAA's actions: "Arguably, the tragic accidents and incidents that led FAA to scrutinize operational control were textbook examples of how not to conduct a charter business. I have heard concerns expressed about other 'bad apples' or rogue operators. Implementation of this operational control OpSpec ultimately will further enhance the safety record of the air charter industry, as every operator should be held to the same standard."