Overcoming Current Operations Challenges for Part 91 and ... - NBAA

NBAA Domestic Operations Committee:Overcoming Current OperationsChallenges for Part 91 and Part 135NBAA Annual Meeting & ConventionAtlanta, GeorgiaOctober 19, 20102

OverviewIntroduction – David Norton, Chair of the DOCShuttle Working Group Update (Will Das)SMS Implementation (Lucille Fisher)Part 91 Operational Control (Aaron Goerlich)Current Part 135 Issues (Ashley Smith)LOAs and OpSpec Issues (David Norton)Questions & Close3

Domestic Ops: Shuttle Work GroupWill DasJohnson Controls49541Ecorse RoadBelleville, MI 48111Office: (734) 358-0106Email : Willem.Das@jci.com4

Training/Checking Part 142 SchoolsFAR 61.58 Progressive check under Part 125 Common practice for checks under 61.58 AFS 820 approval For 125 operators.5

Training/Checking Part 142 Schools125.291 Aircraft substitution LODA Operators with both 91 and 125 Ops Ease training yearly training/Checking burden Requested through local FSDO FSDO may request AFS 820 approval6

125.211 (b) 125.269 (c) Flight Attendant Requirements. applicability local FSDO interpretation Inconsistencies7

Beginning a shuttle operationAvailable NBAA resources through the DOC Shuttle work group Mature shuttle operations 91 vs.125 Analyzing route structure Presentation to management Match aircraft to mission8

SMS ImplementationLucille FisherQUALITY RESOURCES, LLC355 Richmond RoadRichmond Heights, OH 44143Office (216) 797-1710lfisher@qualityresources.biz9

Safety Management SystemDefinitionThe systematic and comprehensive process forthe proactive management of safety-risks thatintegrates the management of operations andtechnical systems with financial and humanresource management.10

ICAO Annex 6 Part IIDriving forceChapter 3.3 General3.3.2 Safety management system3.3.2.1 An operator shall establish and maintain a safetymanagement system that is appropriate to the size andcomplexity of the operation.11

Annex 6 Part IIChapter 3.33.3.2.2 Recommendation. – The safety management systemshould as minimum includea) a process to identify actual and potential safety hazards andassess the associated risks.b) a process to develop and implement remedial action necessaryto maintain an acceptable level of safety; andc) provision for continuous monitoring and regular assessment ofthe appropriateness and effectiveness of safety managementactivities.12

Annex 6 Part IIChapter 3.3Note – Guidance on safety management systems is contained inthe Safety Management Manual (SMM) (Doc 9859) and industrycodes of practice.13

What about the FAAAC 120-92ARecently publishedThis advisory circular (AC) provides a Framework for SafetyManagement System (SMS) development by aviation serviceproviders. It contains a uniform set of expectations that align withthe structure and format of the International Civil AviationOrganization (ICAO) Framework; and Aviation Safety (AVS)policy in Federal Aviation Administration (FAA) Order VS8000.367, AVS Safety Management System Requirements,Appendix B.14

Implementing Safety Management SystemsYou already do it!Write it downCreate a systematic approach to safety and operational issuesConsider the International Standard for Business AviationOperations – IS-BAOWhat do you have to do to comply with the ICAO requirements?15

Part 91 Operational ControlAaron A. GoerlichGarofalo Goerlich Hainbach PC1200 New Hampshire Ave NWWashington DC 20036-6802Office (202) 776-3974agoerlich@ggh-airlaw.com16

Part 91 Operational Control Concern: some Part 91 operators do not fully grasp concept ofaircraft operational control (O/C) unaware or unsure which entity FAA considers and/or requires to bein O/C Additional Concern: issue especially prevalent when aircraftmanagement is outsourced Goal: clarify appropriate roles and responsibilities with respect toO/C17

FAA definitions of operational control andoperate (FAR 1.1) “Operational control, with respect to a flight, means the exerciseof authority over initiating, conducting or terminating a flight.” “Operate, with respect to aircraft, means use, cause to use orauthorize to use aircraft, for the purpose (except as provided in91.13 of this chapter) of air navigation including the piloting ofaircraft, with or without the right of legal control (as owner,lessee, or otherwise).” Broadly-worded definitions, by design Authority – and the exercise thereof – is key19

Three fundamental questions in determining whohas O/C Who makes decision to assign flight crewmembers and aircraftfor a flight? Who makes decision to initiate, conduct and terminate the flight? For whom do the pilots work as direct employees or, alternatively,as agents? Common thread: exercise of authority20

Answer to all three questions should be thesame… …and that is (or should be) the entity with operational control Compare Part 135 requirement: system of “complete, effectiveand sustainable O/C” Why not take same approach to Part 91 operations?21

Re: Who makes decision to assign flightcrewmembers and aircraft for a flight?NBAA survey results:For aircraft on aPart 135certificate, whoassigns theflightcrew/aircraft to theflight?Certificateholder makesdecisionwithout inputfrom aircraftownerAircraftownerrecommends,certificateholder makesfinal decisionAircraftowner makesfinal decisionOtherFlightcrew 67.6% 17.6% 11.8% 2.9%Aircraft 48.6% 31.4% 8.6% 11.4%22

Re: Who makes decision to initiate, conduct andterminate the flight?NBAA survey results:Who exercisesauthorityto initiateeachflight?AircraftownerPart 135operator/managementcompanyPart 91-onlymanagementcompanyOtherPart 91 flights 67.0% 17.0% 6.8% 9.1%Part 135 flights 8.8% 82.4% 2.9% 5.9%23

Re: For whom do the pilots work as directemployees or, alternatively, as agents?NBAA survey results:Who pays thewages orsalary offlight crewmembersused for Part91/Part 135flights?AircraftownerPart 135operator/managementcompanyPart 91-onlymanagementcompanyAircraftowner andmanagementcompanyeach paypartOtherPart 91 60.9% 21.8% 8.0% 4.6% 4.6%Part 135 13.5% 59.5% 5.4% 13.5% 8.1%24

Other survey results of special interest:Are passengers briefed on who is in operationalcontrol of each flight?YesNoPart 91 21.6% 78.4%Part 135 60.0% 40.0%Does youragreement withthemanagementcompany/Part135 operatordelineate clearlywho is inoperationalcontrol of eachflight?The agreement isclear that the aircraftowner is inoperational controlof Part 91 flights forthe owner and thatthe managementcompany/Part 135operator is not inoperational controlof such flights. Italso indicates thatthe Part 135 operatorwill be in operationalcontrol of its Part135 flights.Theagreementindicates thatthemanagementcompany/Part 135operator is inoperationalcontrol of allflights.The agreement isclear that theaircraft owner isin operationalcontrol of Part 91flights for theowner and that themanagementcompany/Part 135operator is not inoperationalcontrol of suchflights.Theagreement isunclear ordoes notaddress thesubject ofoperationalcontrol.I don’tknow whattheagreementprovides. 53.8% 23.1% 5.1% 5.1% 5.1% 7.7%Other25

Other O/C considerations and pitfalls O/C system described in manuals or otherwise in written form? (highlyrecommended) O/C responsibility not transferable (though functions can be delegatedto qualified personnel) Passengers briefed on O/C? (compare fractional - FAR 91.1013; seealso 91.1009 and 91.1011) Transfers of possession of aircraft must be legal and effective (cont’dnext slide)26

Other O/C considerations and pitfalls (cont’d) Sample lease provision: Lessee shall have complete, effective and sustainableoperational control over the Aircraft whenever operated under this Agreement.Lessee's operational control over the Aircraft shall include without limitation thesole authority to make flightcrew assignments, to designate the Aircraft for theperformance of any particular flight, and to make decisions regarding theinitiation, conduct and termination of any particular flight. Lessee shall beaccountable and liable for the acts and omissions of each flightcrew member.Lessor agrees and acknowledges that Lessee shall have sole operationalcontrol of the Aircraft and Lessor shall take no action that would interfere with ordiminish such operational control by Lessee. Similar provisions in aircraft management agreement? Should be. Also – Where aircraft “migrates” between Part 91 and Part 135 operations,agreement must make clear: 91 operations: Owner has O/C 135 operations:Air Carrier Certificate holder (management company) has O/C27

Flight crewmember issuesDistinction between direct employees (W-2) and agents Note - 2006 FAA guidance:“The significance of the words „agent‟ and „agents‟ as used in these [135] operationsspecifications is that the certificate holder is the principal and that the certificate holderis accountable and liable for the acts or omissions of each of its agent(s).” Same principle applies for Part 91 operations - see FAA legal interpretation issued9/10/2007 to self-employed contract pilot flying Part 91 flights:“When you fly [aircraft owner and owner‟s employees] on [owner‟s] aircraft, if [owner]does not acknowledge that you are [owner‟s] direct employee or agent for the flight anddoes not acknowledge that [owner] is liable for your actions and inactions, then [owner]is not assuming operational control of the flight. Instead, it would appear that [owner]has hired you for your aviation expertise to transport [owner] and [owner‟s] employeesfrom point to point. As such, you would have operational control of this „compensationor hire‟ flight. As such you would have to be certificated to conduct Part 135operations.”Importance of written agency agreements with pilots28

Aircraft Management Outsourced? In particular, 91/135 “migrations” trigger variety of O/C issues Contents of agreements vital In-house? Be wary of flight department company issue – if FDC, commercialoperations in FAA’s eyes, 135 certificate required29

In sum, it pays to have a structured Part 91operational control system Enhance safety Minimize regulatory risk Minimize unanticipated liability exposure30

Part 135 IssuesW. Ashley Smith Jr.President / Director of OperationsJet Logistics, Inc.5400 Airport Drive, Suite 1311Charlotte, NC 28208Office: (919) 840.0555Email: ashley@jetlogistics.us31

OSWG Update (Ops Spec Working Group)C052/C053/C074, Basic Straight-in Non-Precision, APV, and Category 1Precision Approach and Landing Minima-All AirportsHistory: Third Quarter, 2008 FAA decided to combineC052/C053/C074Why: What are the regulatory requirements with regard to recurrenttraining and checking requirements for pilots using stand aloneGPS units?Issue: Initial draft Ops Specs language required pilottraining/checking in each aircraft make/model/GPS combination32

OSWG Update (Ops Spec Working Group)C052/C053/C074, Basic Straight-in Non-Precision, APV, and Category 1Precision Approach and Landing Minima-All AirportsPotential issues:1. Fleets with multiple GPS units2. Simulators with different and/or no GPS3. Training/Checking issue33

OSWG Update (Ops Spec Working Group)C052/C053/C074, Basic Straight-in Non-Precision, APV, and Category 1Precision Approach and Landing Minima-All AirportsArguments for/against:1. GPS equipment should be trained/checked (for)2. Promotes training and checking in the aircraft (against)3. Promotes non-use of GPS approaches (against)4. Contradicts current regulation 135.297 (against),(Requires Random Sampling of non-precision approaches that operator isauthorized to conduct)34

OSWG Update (Ops Spec Working Group)C052/C053/C074, Basic Straight-in Non-Precision, APV, and Category 1Precision Approach and Landing Minima-All AirportsOutcome:1. No requirement to train/check GPS approaches in the C0522. No regulatory change3. Language added to 8900.10, Volume 3, Chapter 18, Section 5,Part C – Airplane Terminal Instrument Procedures and AirportAuthorizations and Limitations, that requires training checkingfor each “make/model/GPS” combination.4. 8900.10 is NOT regulatory (?)35

NBAA FAR 135 Working GroupFuture issues Training/checking requirements 135/142 Credit for previous training Flight time/duty limitations What can you add?36

Letters of Authorization (LOAs) &Operations SpecificationsDavid T. NortonChair, DOCShackelford, Melton & McKinley, LLC3333 Lee Parkway, 10 th FloorDallas, TX 75219Office: (214) 780-1407dnorton@shacklaw.net37

LOAs & OpSpecs Three Primary Issues: RVSM SUA MEL’s38

LOAs & OpSpecs Regulatory History – Confusion Abounds!! Lack of clarity as to actual problem and potential solutions within theFAA Essential problem noted: only one authorization on one airplane ata timeBut what about joint owners?What about airplanes on charter certificates that are still used bytheir underlying owners for Part 91 operations? Meeting in Spring of 2010 – new plan of attack!39

LOAs & OpSpecs Two Primary Sources of the Problem(s) Lack of clear guidance WebOps!40

LOAs & OpSpecs Pending Solution: Detailed letter to FAA from NBAA:In depth discussion of applicable regulationsRequest for clarifications in FSIMS (with example)Request for update WebOps41