As many of you are aware, the FAA has increased both its investigation of and enforcement against illegal charter operators. One of the consequences of this heightened oversight is an increase in the FAA’s scrutiny of Part 91 dry-leasing structures. Using an operational control briefing in connection with those Part 91 flights can help minimize unwanted FAA attention.
To start, if structured properly, these leasing structures are legal and comply with FAA regulations. They ARE NOT illegal charter. However, in order to be legitimate, dry-leasing arrangements must be documented correctly.
The actual flight operations also need to be conducted consistent with those documents and the applicable regulations. But proper documentation will not save an operator from FAA enforcement if the operations ignore the documents and are conducted as illegal charter flights.
How does the FAA figure out whether a properly documented operation is actually being conducted as an illegal charter? FAA inspectors start asking questions. For example, if an FAA inspector conducts a ramp check of a Part 91 dry-lease flight, he or she will first speak to the pilot. Next, the inspector will talk to the passengers in the back of the airplane.
The passengers’ answers to the inspector’s questions need to be consistent with a Part 91 dry-leasing structure. Incorrect answers can, and have, resulted in an illegal charter investigation of an otherwise proper Part 91 dry-lease flight. And this is where an operational control briefing given by the pilot at the beginning of the flight can make all of the difference in the world.
The operational control briefing is intended to ensure that the passengers are able to tell the FAA inspector who has operational control of the flight. Subject to a few very specific exceptions, the lessee, not the lessor, has operational control of a Part 91 dry-lease flight, even if the lessee or its principals are not physically on the flight. The passengers need to know this fact so they can answer the inspector’s questions correctly.
So, what should be included in an operational control briefing? Here are a few, but not necessarily all, of the points that should be covered with the passengers:
- The flight IS NOT a charter flight.
- The flight will operate under Part 91 of the Federal Aviation Administration regulations.
- The flight is operated under a lease between the aircraft owner (or another lessor) and the lessee. And a copy of that lease agreement is in the aircraft.
- The flight is under the operational control of the lessee. (Identification of the lessee is critical, especially when the aircraft may also be leased to other affiliates or related entities). This means that the passenger, by virtue of his or her relationship with lessee, has operational control of the flight. He or she has the authority to initiate, conduct and terminate the flight.
- The pilot is on board to help the passenger operate the aircraft in a safe and prudent manner and in full compliance with the applicable rules and regulations. He or she will comply with the instructions and directions provided by the passenger, both written and oral, to enable the passenger to exercise operational control.
- The passenger will still have operational control. That operational control is only be subject to the pilot’s authority to make all safety related decisions relating to the aircraft and the flight.
The operational control briefing should be used regardless of whether the flight is carrying the lessee (or its principal) or the lessee’s employees/guests/invitees. Although the lessee should understand the nature of the Part 91 dry-leasing structure to which it has agreed, the briefing can serve as a reminder of the basic requirements.
When the flight is carrying other passengers, the briefing is an important tool to make sure those passengers understand the nature of the flight so they are able to convey that information to an FAA inspector if or when asked. This will help prevent confusion and, perhaps, an unwanted investigation.
At the end of the day, it is the lessee’s responsibility as operator of the aircraft to make sure the lessee’s flights are conducted legally. An operational control briefing is a simple, but effective way to make sure the folks in the back of the aircraft also understand who is responsible for the flight.