If you have not heard rumblings of new FAA guidance on operational control then you have either been sleeping for the last couple years or lost on a deserted island. There have been hundreds of discussions about operational control and understanding the whole picture is difficult at best. The effort here is to untangle the issue enough for us to get a clearer picture of what happened to cause the FAA to issue new guidance and what the new guidance really means to the Part 135 air carrier.
When a Part 135 operator receives authority from the FAA to conduct operations under Part 135, their authority comes in the form of an air carrier certificate as well as an operations specification (OpSpec). In addition, the operator must have produced the appropriate manuals that describe how the operation is to be run as well as how maintenance and operations will be kept in compliance with applicable federal regulations. The General Operations Manual (GOM) includes the air carrier’s instructions and policy on maintaining operational control.
The term “operational control,” seems pretty self-explanatory. Who is in control of the operation of the aircraft? Right? As defined by FAR Part 1: “Operational control, with respect to a flight, means the exercise of authority over initiating, conducting, or terminating a flight.”
Forever we have considered the pilot to be the person who has responsibility and authority to make decisions and exercise operational control over the aircraft. The pilot will take-off and land the aircraft and navigate as needed for the intended flight. Seems to make sense that the pilot is the one in control and therefore has operational control.
All of this is true; however, it is more complicated than that, and as business within our industry has and continues to evolve and change, more and more what-ifs emerge.
Rules governing operational control have been in place for quite some time. Following are a couple of those rules:
14 CFR Part 135.77
Responsibility for operational control
Each certificate holder is responsible for operational control and shall list, in the manual required by Sec. 135.21, the name and title of each person authorized by it to exercise operational control.
14 CFR Part 135.79
Flight locating requirements
(a) Each certificate holder must have procedures established for locating each flight, for which an FAA flight plan is not filed, that —
(1) Provide the certificate holder with at least the information required to be included in a VFR flight plan;
(2) Provide for timely notification of an FAA facility or search and rescue facility, if an aircraft is overdue or missing; and
(3) Provide the certificate holder with the location, date, and estimated time for reestablishing radio or telephone communications, if the flight will operate in an area where communications cannot be maintained.
(b) Flight locating information shall be retained at the certificate holder’s principal place of business, or at other places designated by the certificate holder in the flight locating procedures, until the completion of the flight.
(c) Each certificate holder shall furnish the representative of the Administrator assigned to it with a copy of its flight locating procedures and any changes or additions, unless those procedures are included in a manual required under this part.
However, some operators’ loose interpretation of the rules when faced with a new “what-if” scenario has caused concern for the FAA. The result is the new safety inspector guidance being discussed here, Notice N 8000.347 and subsequently Notice N 8900.4.
Who is in control?
Basically, several FAA field offices have found it difficult to put their finger on who really was in control of some operations being conducted by Part 135 certificate holders. For instance, it is not uncommon for a Part 91 aircraft owner to lease his aircraft out for operation under a Part 135 certificate. This sort of leasing arrangement, in and of itself, is not a problem and has long been a source of income that helps to offset the cost of owning an aircraft. When leasing out the aircraft, however, the Part 91 owner must not have operational control of the aircraft while it is being used by the certificate holder.
According to the new guidance from the FAA, the pilot has to receive any compensation for the flight from the air carrier under whose certificate the operation was conducted. In order for the air carrier to demonstrate that it has and can maintain operational control over the flight it must “maintain control and authority over the initiation, continuation, conduct, and termination of the Part 135 flights” (Ref Notice N 8900.4). This is all encompassing, from the decision to provide the customer with the requested flight, assignment of the proper crew (trained and rested) to conduct the flight, on through to completion of the flight at the intended destination.
14 CFR Part 135.25
Another rule that plays into the issue of leasing an aircraft for operations under Part 135 is 135.25:
(b) Each certificate holder must have the exclusive use of at least one aircraft that meets the requirements for at least one kind of operation authorized in the certificate holder’s operations specifications.
Air carrier certification
An air carrier cannot obtain a certificate unless it has and maintains exclusive use of at least one aircraft for which it will be certificated to operate under Part 135. This rule prevents the creation of a Part 135 air carrier that is only using other people’s aircraft for its flight operations.
The OpSpec is basically the agreement between the FAA and the operator. It is created and signed by both parties and is revised periodically as needed. An OpSpec is divided into several sections: General (A); En Route Authorizations, Limitations, and Procedures (B); Airplane Terminal Instrument Procedures & Airport Authorizations and Limitations (C); Aircraft Maintenance (D); and Weight and Balance (E).
These are only a few sections. Various other sections depend upon the type aircraft and type of operations to be conducted by the air carrier. Within each of those sections are numbered subsections such as A001, A002, and A003.
Both notice N 8000.347 and N 8900.4, require that OpSpec A002 — “Definitions and Abbreviations” and A008 — “Operational Control” be revised to the FAA’s most current revisions (A002 revision 100 and A008 revision 020) which more clearly spell out the operational control requirements and when incorporated as required by the order, will help to eliminate any possible misuse of the air carrier certificate. By the time this article is published, the required revisions will have been incorporated in all Part 135 air carrier OpSpecs or they will not be allowed to conduct operations under the authority of that certificate.
Need to revise GOM
In addition to the revisions within the OpSpecs, the operator’s General Operations Manual (GOM) has to be revised to spell out the process by which operational control will be maintained by the Part 135 certification holder.
NOTE: In the case where the 135 certificate holder is a single pilot operation, it is not required to have a GOM. The details will then be spelled out in the OpSpec itself.
The operational control process defined by the air carrier and included in its GOM will need to describe two tiers or levels of control. The first tier is the operational control exercised by the management of the air carrier. Each person within the organization who has “first tier” authority must be listed in the GOM by name, along with the specific responsibility that the person has with respect to operational control (i.e. dispatch, airworthiness status, crew assignment, etc.). This first tier sets up the flight, gets it ready to take place, and follows the operation as it is conducted, working closely with the flight crew to ensure that all regulations are complied with and the flight is conducted as safely as possible.
The second tier comes into play once the flight crew has been assigned to the flight. The flight crew then shares operational control of the flight with the first tier. The air carrier must have knowledge of the location of the aircraft and any deviations made to the planned flight or mission so the flight crew (first tier) maintains communication with the management team (second tier) as often as practical. Due to the fact that second tier personnel can be several people within the organization and will likely be increased and decreased in number as time goes by, the position titles and operational control responsibilities can be listed in the GOM with a separate list of the names and positions of the second tier personnel kept separately outside the GOM.
Improper use of DBA
Another issue that is addressed by the new guidance is the improper use of “doing business as (DBAs).” According to the FAA, some air carriers were leasing out their authority by allowing non-certificated operators to operate under their certificate by reference as a DBA. Obviously, it is not possible to maintain operational control under such an agreement. Moving forward, all DBAs must be certificated organizations or approved by FAA headquarters.
I hope that this information has helped you to gain a better understanding of what all of the commotion around operational control has been all about.
Copies of N 8000.347 and N 8900.4 are available at www.NATA.aero.
Joe Hertzler is the CEO and co-founder of Avtrak Inc.
