NTSB recommends numerous FAA changes
The line between Part 91 and Part 135 is nebulous and tightening
Getting Airline Operating Certificate NOW reduces risk of insurance exclusion
The NTSB has issued an Aviation Investigation Report that identifies a number of safety issues with some revenue passenger-carrying operations conducted under Part 91, and has outlined a new list of recommendations to the Federal Aviation Administration (FAA). The 62 page paper reviews a number of old cases involving the fine regulatory distinctions as to operating under the GA more generous rules against the Part 135 strictures intended to protect the unsuspecting aviation consumer.
Assuming, for argument, that the FAA moves expeditiously to implement these suggestions, the formal and informal processes that control such changes will consume months or more probably years before the operators and FAA field staff will face the Board’s tighter solutions.
There are, however, more immediate reasons to upgrade your operations NOW!!! The most obvious result will be greater safety based on the systems required by Part 135 (or other appropriate rules). Mandated training, manuals, maintenance standards, etc. will reduce risks and your worries. Yes, these steps will increase your costs, but being able to advertise to prospective passengers, that you have an FAA Certificate, should attract consumers who are safety conscious.
There is an even more financially compelling rational to upgrade. Your insurance policy includes exclusions. These clauses or paragraphs or pages or addendum establish very rigid standards for what risks your insurance carrier will insure and equally carefully crafted language that defines when the insurer will IGNORE YOU when you call about an accident.
One such clause indicates that the insured must have appropriate safety and economic authorities issued by the FAA and DoT respectively. Your greatest nightmare will be when you call your broker to notify her or him that you has a crash with fatalities and the return question is whether the deceased PAID any money under any Part 91 provision. An affirmative action will result in a team of insurance investigators arriving at your offices to assess whether the revenue flight should have been under Part 135.
With this NTSB declaration and all of the interest generated by the Gray Charter scrutiny by the FAA and industry, Government and industry experts may read the exclusions broadly while referencing all of these safety reasons to do so.
This very real consequence should motivate your company to file for an Airline Operator Certificate. There are experts who have been recognized by the FAA as a trustworthy, credible SMEs in this process. The greatest advantage in this process in seeking your AOC is to submit all of the documents in a form that is likely to be approved by the FAA. Those who file multiple Part 135 requests in multiple locations have the experience to submit things like the following:
FAA Master Change Process Document (MCPD) which is a structured system safety-based approach to assess the design and performance of the certificate holder’s proposed change(s) which includes 5 Phases.
- Initial Inquiry.
- Element Design Assessment (EDA).
- Element Performance Assessment (EPA).
- FAA Administrative Functions.
Advanced Qualification Program (AQP)
- FAA Application.
- Curriculum Development,
- Small Group Tryout (Implementation),
- Initial Operations and,
- Continuing Operations.
Upgrade Part 135 Operating Certificate
- There are several categories of Part 135 Operations Specifications (OpSpecs), and as a 135 operator’s business grows the certificate holder may want to upgrade from a Part 135 Single Pilot to a Basic or Full 135 Certificate. Often 135 operators want to add a new airplane to its OpSpecs and operate as a Part 135 “10 or more” air carrier or even upgrade to a Part 135 Commuter. Experience in supporting numerous Part 135 upgrades ensure that every FAA requirement is completed to meet your schedule and needs.
Now is a good time to get started in improving your safety status and assure that you are not naked as to your insurance.
BY SKIES MAGAZINE | APRIL 30, 2021
The National Transportation Safety Board (NTSB) has released its Aviation Investigation Report that identifies a number of safety issues with some revenue passenger-carrying operations conducted under Part 91, and has outlined a new list of recommendations to the Federal Aviation Administration (FAA).
In its report, the NTSB makes clear that such operations “are not held to the same maintenance, airworthiness, and operational standards as air carrier, commuter and on-demand, and air tour operations conducted under [Title 14 Code of Federal Regulations (CFR)] Parts 121, 135, and 136, respectively.”
Pictured is the aftermath of the 2019 sightseeing
flight where a Boeing B-17G collided with vehicles
and a deicing fluid tank after making a precautionary landing.
In other words, the FAA has allowed some revenue passenger-carrying operations to be governed by general aviation regulations, known as Part 91, and are, as a result, not subject to the stricter safety requirements that apply to other commercial aviation operations. Part 91 general aviation operations do not require operating certificates, operations specifications, and FAA-approved training and maintenance programs, all of which are required for Part 135 operations.
In its analysis, the NTSB notes that the FAA previously stated that passengers who are transported under Parts 121 and 135 “exercise no control over and bear no responsibility for the airworthiness or operation of the aircraft aboard which they are flown,” so, as a result, the “appropriate level of public safety is provided by . . . very stringent regulations and oversight under part 121 and part 135.”
The NTSB report points out that “even though passengers exercise no control over, and bear no responsibility for, revenue passenger-carrying flights conducted under Part 91, the FAA continues to allow these flights to be conducted under less stringent regulations and with little to no oversight.”
To better demonstrate the ongoing safety issues associated with Part 91 revenue passenger-carrying operations, the NTSB presented accident investigation findings for eight aircraft accidents
— including the 2019 parachute jump flight where a Beech King Air 65-A90 airplane impacted terrain after takeoff,
the 2019 sightseeing flight where a Boeing B-17G collided with vehicles and a deicing fluid tank after making a precautionary landing
(full accident investigation reports can be found here).
The accident investigations were used to evaluate four key safety issues involving Part 91 revenue passenger-carrying operations. The first safety issue is the need for an appropriate framework for such operations. Based on the investigations of multiple accidents presented in its report, the NTSB found that “under the current regulatory framework for revenue passenger-carrying operations, a lack of structured pilot training, deficiencies in pilot skills and decision-making, and inadequate aircraft maintenance were occurring.”
The second safety issue is the need to identify regulatory loopholes and omissions and address them in the new framework. “Two of the accidents presented in this report involved revenue passenger-carrying flights that were operating under the premise of student instruction,” but were actually carried out for other purposes (a tour flight and an extreme aerobatic experience flight), the NTSB found. These operators were able to avoid both FAA oversight and certain regulatory requirements because the FAA’s local inspectors “did not have the means for providing the necessary oversight” due to “limitations in the regulatory framework for such operations,” the report reads.
One of the accident examples referenced above was the EXTRA EA 300/L aircraft that collided with terrain near Four Corners, California, on Oct. 21, 2017. The pilot/flight instructor and passenger sustained fatal injuries, and the airplane was destroyed by impact forces and a post-crash fire. Although operating as a flight training company, the operator (Sky Combat Ace) described itself as an “extreme aviation attraction.”
This was a revenue passenger-carrying flight sold as a 25-minute-long “Top Gun” experience, operating as a student instruction flight that involved aerobatics, high-G maneuvers, and a low-level bombing run simulation.
According to the NTSB, the probable cause of this accident was “collision with terrain after the pilot was unable to regain airplane control during an aerobatic maneuver.” The operator’s failure to provide “effective internal oversight to identify and prohibit exceedance of the airplane’s performance parameters, and the lack of regulatory framework available to oversee and regulate such flight operations,” also contributed to the accident.
The NTSB said the revenue passenger aboard the Four Corners accident flight was “clearly not being carried for the purpose of student instruction.” As well, Sky Combat Ace’s air combat/extreme aerobatic aircraft and curriculum were not appropriate for initial flight training. The NTSB investigation determined that “the FAA was aware of operators that were conducting flights under the guise of flight instruction, but that the FAA’s local FSDO inspectors did not have the means to provide the necessary oversight for these operations because of limitations in the regulatory framework.”
Naturally, the third safety issue addressed is the need for increased FAA oversight. The NTSB said more guidance for and comprehensive oversight of Part 91 revenue passenger-carrying operators “could help ensure that these operators are properly maintaining their aircraft and safely conducting operations.”
Additionally, while the FAA currently maintains a database with “basic information” about each Part 91 air tour operator, the NTSB believes the FAA should also have this information for other Part 91 revenue passenger-carrying operators.
The final safety issue is the need for safety management systems (SMS). The NTSB’s investigations found that organizational safety management failures played a role in three of the accidents presented in its report. “Only Part 121 air carriers are currently required to incorporate SMS; the FAA has encouraged the voluntary implementation of SMS beyond Part 121 operations,” the report reads.
In its findings, the NTSB concluded that some operators have been “exploiting and/or inappropriately capitalizing” on the exceptions within Title 14 CFR 119.1(e) to avoid the additional requirements and oversight intended to apply to the revenue passenger-carrying operations being conducted.
On the subject of commercial glider sightseeing flights, the NTSB found those flights have essentially been operating with almost no oversight because of a regulatory omission. (Glider sightseeing operations are not required to comply with 14 CFR 91.147 rules or Part 136 commercial air tour rules, and do not need a Part 119 operating certificate.)
The report also confirms the message that the FAA has a “responsibility to bolster regulations and oversight” for all Part 91 revenue passenger-carrying operations “to ensure an increased level of safety for those participants who pay for these flights.”
The agency made a list of new recommendations to the FAA to enhance the safety of Part 91 revenue passenger-carrying operations, which mainly revolve around the safety issues found in the report. The recommendation at the top of the list is for the FAA to develop national safety standards, or equivalent regulations, for revenue passenger-carrying operations that are currently conducted under Part 91. The NTSB recommends that these standards “should include requirements for initial and recurrent training and maintenance and management policies and procedures.”
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