The FAA today released Notice 8400.83 relating to operational control responsibilities for part 135 operators. The Notice is being sent to all FAA Principal Operations Inspectors (“POI’s”) for use in “their certificate management and surveillance of operations by part 119 certificate holders” operating under part 135 and is intended to provide POI’s “with information concerning the appropriate use of fictitious business names (doing-business-as or DBAs) by part 135 air carriers and commercial operators.” This Notice doesn’t come as a surprise following the February 2005 crash at Teterboro airport. (As a side note, the FAA also issued an emergency order suspending the part 119 certificate holder’s certificate following that accident in part based upon the operational control issues addressed in the Notice. You can read more about that case here).
In the Notice, the FAA focuses on how an air carrier exercises operational control and also discusses the use of DBAs that may have no apparent business connection to the air carrier (one of the issues in the Darby case). The FAA states that a part 135 operator “may not franchise or lease out its authority to engage in part 135 operations to third parties. Persons and entities not certificated by the FAA to engage in part 135 operations may not be directly or indirectly authorized by a part 135 operator to conduct flights under its name or under a fictitious business name placed by the operator on its certificate.” The Notice then discusses the nine characteristics the FAA believes constitute operational control and also identifies five other characteristics the FAA believes “may affect whether a part 135 operator properly maintains operational control…” Regarding the DBA issue, the Notice provides POI’s with specific items they must review and inspect to ensure that part 135 operators are properly using such DBA’s.
In general, the Notice is likely to result in greater scrutiny of part 135 operators entering into management type agreements/relationships, as well as their intra-company structuring and use of DBA’s. Part 135 Operators should review the Notice in advance and be able to answer/address questions posed by POI’s relating to these issues. If you have questions regarding the notice, you can contact AFS-200, at (202) 267-8166.
