Applications and Petitions: None Answers and Replies: Wet Lease Policy Guidance - Comments of Air Services / Airline Dispatchers Federation / American Flight Group / Chantilly Air / Creative Airport Solutions / General Aviation Manufacturers Association / Jet Air / Jet Solutions / Mayo Aviation / National Air Transportation Association Orders and Notices: None Rules and Regulations: None Grant of Petitions: None

	Wet Lease Policy Guidance FAA-2005-22765 November 23, 2005 Comments of Air Services, Inc. Air Services, Inc. (Air Carrier Certificate # A6YA104Y) supports this docket number. It is our opinion that all Part 135 air carriers should be required to ensure proper operational command and control of their flights, requiring pilots to be employed by the air carrier. By: Air Services, Roy Nichols November 28, 2005 Comments of Airline Dispatchers Federation | Word ADF fully understands that this issue is not about Part 121 Flag or Domestic air carrier operations. It is however about Operational Control in commercial operations. Some Part 135 on demand operations are larger and more complex than some Part 121 operations. Everyone operates in the same NAS and frequently to the same congested airports. All forecasts call for significant increases in the numbers business aircraft operations. Appropriate Positive Operational Control contributes to the highest possible level of aviation safety. As the FAA, operators and associations involved in on demand commercial operations work to resolve the current issue, ADF offers the following for consideration: 1. Federal Regulations should be as straightforward and easy to understand as possible. 2. The regulations should be strictly enforced. 3. Operational Control should be appropriate to the size and complexity of the operation. If violations of clear and understandable regulations are found they should result in significant and detrimental consequences to those responsible. This would include certificate and or civil action against the pilot, certificate holder and owner as appropriate. Passengers do not have the ability, nor should they be expected to conduct a risk analysis each time they wish to travel by air. Above all, the FAA and the entire air transportation industry must maintain and advance the public trust in the highest possible level of safety. Positive Operational Control, utilizing a properly trained and certificated aircraft dispatcher with joint responsibility with the Captain for the conduct and safety of each flight should the single standard for all Part 121 operations, Part 135 scheduled service and should also be required for complex Part 135 on demand operations. Having a certificated person on duty and on site responsible for Operational Control, representing the certificate holder and answerable to the FAA, would reduce or eliminate the impulse to conduct unauthorized flights and contribute to the highest possible level of safety. By: ADF, Norm Joseph, NJoseph@dispatcher.org http://www.dispatcher.org/ November 23, 2005 Comments of American Flight Group The wording in a lease has very little relevance to the safety of Part 135 ondemand operations. The FAA should focus on the things that are important to safety: ensuring that the carrier is in fact complying with operational and maintenance requirements in the FAR's. The regs are written to promote safety, not management contracts. The few bad apples that are flaunting the rules need to be stopped. The legitimate operators shouldn't be tarred with the same brush. The FAA's actions following recent accidents appear to be knee-jerk responses that show little understanding or appreciation of the on-demand air carrier industry - which by and large is devoted to providing the traveler the highest level of safety and service. Focusing on leases is short sighted and puts too much power in the hands of the legal eagles at FAA. The power needs to be given to qualified operations and airworthiness inspectors in the field. It is they who can best determine if an on-demand air carrier is operating safely. By: AFG, David Russell http://www.americanflightgroup.com/ November 22, 2005 Comments of Chantilly Air While Chantilly Air agrees with the FAA's position that a Part 135 Air Carrier may not franchise out its air carrier certificate or otherwise facilitate air carrier operations by unqualified persons and must have proper controls in place to maintain operational control of all air carrier flight operated under its certificate, Chantilly Air strongly disagrees with the proposed guidance. The guidance appears to address two issues without clearly defining these issues: First that the general public should only be utilizing the air carrier services of properly certificated entities; and Second that a certificated Part 135 air carrier have operational control of air carrier flights operated under its certificate. Unfortunately the guidance in its present form does not offer a clear understanding for air carriers and FAA inspectors to utilize when addressing these issues and would most certainly devastate the safety of the 135 industry without accomplishing the intent of the guidance. Many 135 aircraft are made available to the general public through a relationship where an individual or company purchases an aircraft for use as tool for business or other noncommercial purpose. However the aircraft owner may not require enough utilization at all times to justify the full cost of ownership. Consequently the aircraft owner will legally enter into a business arrangement with a Part 135 Air Carrier to allow the 135 Air Carrier to utilize the owner's aircraft and crew for 135 flights when not being used for the owner's purpose. As long as the crew is qualified for a flight, the aircraft owner's crew should be permitted to fly the aircraft This does not remove the 135 Air Carriers responsibility to ensure those pilots are properly trained and qualified for 135 Rights, and disqualify any pilots the 135 Air Carrier deems not meeting the standards required for 135 flights. Essentially the owner may nominate his pilots, but the air carrier must approve the pilots before they may be utilized for any 135 flights. The guidance later goes on to state that if an air carrier at times must provide pilots for use on the owner's aircraft when flying 135 trips and charges the owner for supplying those pilots, it would be a violation. For many reasons such as sickness, training, vacation, etc, the owner's pilots may not be available for use when flying 135 trips, and the air carrier would have to provide another suitably 135 qualified pilot It would then seem reasonable since the financial arrangement between the aircraft owner and 135 Air Carrier had changed, that the air carrier be able to seek compensation in some form for supplying the substitute pilot Chantilly Air was perplexed that the FAA would issue Policy Guidance with eight questions, for which no answers were provided. In order to ensure adequate answers are provided in final guidance, we support NBAA and NATA'S request that the FAA work with the industry to review and refine the proposed guidance. By working with industry, the FAA will get a significantly better understanding of the 135 industry and the industry will have a better understanding of the FAA's concerns on this issue. Furthermore, comprehensive final guidance that includes the best practices of the industry can be developed and disseminated throughout the air charter industry through this cooperative effort In conclusion Chantilly would like to reaffirm and commend the FAA for addressing this very serious issue, however we feel the proposed guidance will not accomplish the intent and will inevitably result in many well maintained newer aircraft and highly trained crews being pulled from the 135 environment, only to be replaced with older aircraft and less experienced crews. By: Chantilly Air, Timothy Sullivan http://www.chantillyair.com/ November 28, 2005 Comments of Creative Airport Solutions | Word I serve as a consultant to a Part 135 operator, located in the greater Washington area, which has provided on-demand aviation services for over twenty-two years. Throughout these years, this company has never suffered an accident, incident, or violation; this company has never filed an insurance claim. From day one, this particular company has operated safely. The company has very experienced management personnel who have always exercised effective “operational control” over its flight and maintenance activities. Recently, just a week or two before the FAA’s request for comments on its newly-announced regulations for wet leases and management agreements, the Eastern Region of the FAA initiated a “letter of investigation” into this above-referenced carrier’s leases and operational issues. It was absurd to single out this carrier, especially since this carrier had never been sighted regarding safety issues.  Both the FSDO and the carrier were burdened by a totally uncalled for waste of resources, especially those of the carrier - on which was imposed an economic hardship due to legal expenses. The carrier has been forced to jump through poorly defined “hoops” and respond to what were obviously outdated mandates, even before the comment period has ended and the evolving guidance is formalized. This action is a heavy-handed example of how a legitimate operator can be harmed by the schizophrenia exhibited by the FAA following accidents in the air-taxi industry. It’s appalling that a carrier could operate safely for more than twenty-two years under the watchful eye of its FSDO, and now be treated in such an arbitrary and capricious fashion. If the leases it has in place are defective, perhaps the FAA, at the regional or national level, has been asleep at the switch all these years. The above-referenced carrier certainly didn’t cause the Teterboro accident, nor did the hundreds of other carriers nationwide who operate legally and safely every day. The FAA leadership should take a serious look at its lack of support for the on-demand industry. An aircraft owner, who wishes to get his own certificate, will have to wait years. If he wishes to put his airplane to work, his only legal option is to place it on an existing certificate.  Yet, the FAA’s proposed guidelines would make this almost impossible.  In summary, it was irresponsible of the FAA to initiate an investigation of an on-demand carrier based on regulations that were going to be out-of-date within weeks.  Certainly, the FAA knew that the new regulations were coming out; yet, they did not hesitate to cause a carrier great business and financial hardship to respond to their inquiry.  I urge the FAA to stop all “investigations” of Part 135 operators until a new set of regulations is firmly in place.  I urge the FAA to speak with operators of all sizes to better understand the impact of the new “wet lease” rules.  Finally, I urge the FAA to consider the financial hardships that responding to the capricious actions of a regional FAA office can cause Part 135 operators and their crews, staff and related businesses. By: Creative Airport Solutions, Betsey SanpereThe legitimate carriers are not part of the problem, but they do deserve a voice in the solution. I would appreciate the opportunity for the carrier that I work with, as well as others, to participate in any new regulatory guidance. November 27, 2005 Comments of General Aviation Manufacturers Association GAMA agrees that it is critical that the FAA be able to identify who is accountable for the safety of each flight, whether commercial or not. GAMA also believes it is critical that an air carrier exercise proper “operational control” over each flight no matter what entity provides the aircraft and/or crew. However, GAMA believes that the FAA’s Notice on Wet Lease Policy Guidance identifies a number of complex issues with respect to business relationships which are best resolved through a cooperative partnership between industry and the FAA. GAMA would welcome a dialogue with the FAA about the safety considerations raised by this notice. By: GAMA, Jens Hennig http://www.gama.aero/ November 25, 2005 Comments of Jet Air, Inc. Certainly safety is primary for all of us who make our living providing public transportation, but there are many additional factors involved, as well: 1. Smaller operators do not have the capital resources, nor are their profit margins sufficient to allow the operators to fully-own their fleet. Our fleet of nine aircraft is 40% owned and 60% leased. 2. The owners of the lease aircraft are primarily leasing their aircraft to maximize tax incentives and to help defray maintenance cost. Any additional restrictions that increase their bureaucratic paperwork and restrict their personal or business use of the aircraft will discourage most of them from entering into this kind of agreement. 3. The net result will significantly reduce the equipment available to small operators and curtail or eliminate their ability to provide air transportation services to the general public that cannot afford the multi-million dollar services offered by so called "Fractional Ownership," or cannot afford the price tag of today's corporate aircraft. 4. Eighty percent of our FAR 135 operations is providing rapid-response flights for organ transplants and air medical flights. These flights serve the general public, both rich and poor, and are almost 100% accomplished by small operations like ours that utilize leased aircraft to keep the cost at reasonable levels. 5. The FAA statutes already contain volumes of regulations that address the issues discussed here. Surely the problem cannot be solved by adding more paperwork! Those operations that cheat obviously don't follow rules, so the answer must be in enforcing the rules we already have. 6. A major step to resolving this situation is simplifying the current statutes. They are so obtuse and confusing that most individuals cannot fully understand their meaning. Even the FAA's own legal divisions usually cannot fully interpret the real meaning, as written. 7. Simple straight forward language and interpretations would certainly help the entities that intend to follow the rules to better understand how they must structure their leases and operating procedures Our company has been in the aviation business for thirty years, and like gun, auto, corporate accounting, and many other regulations, more stringent and voluminous FAA regulations will not matter to those who choose to ignore them anyway, but only really impact those who attempt to comply. By: Jet Air, Phillip Wolford November 23, 2005 Comments of Jet Solutions, LLC Jet Solutions concurs with NATA and NBAA that this policy guidance, in its current form and without additional clarification, has the likely potential to cause substantial harm to the U.S. air charter industry, and should be withdrawn. Jet Solutions supports the request by NATA and NBAA for a FAA/Industry dialogue on the proposed policy. Jet Solutions would gladly contribute to and support such a dialogue. Jet Solutions strongly believes that the FAA would be very pleased with the best practices that have been developed by a number of charter operators who share aircraft with owners to deal with system safety. The FAA has embedded a number of questionable regulatory concepts in the Wet Lease Policy Guidance. For instance, in footnote 2 in the proposed policy guidance, the FAA essentially asserts that a FAR Part 135 operator must have dispatch and release procedures similar to FAR Part 121 operators. This represents a substantial regulatory change, one that the FAA should not attempt to achieve through a footnote in the Federal Register. It also demonstrates a lack of understanding of the business aviation industry. However, through an active dialogue with industry, the FAA can learn the best practices that have been developed to meet the unique nature of flight release issues in on-demand charter operations. Another serious flaw with the Wet Lease Policy Guidance is the concept that if an aircraft owner has veto power over pilot assignments, then the air carrier will be deemed to have lost operational control of the aircraft. This is another example of a misunderstanding about business aviation. Customer service is a key element in all of business aviation. Airline pilots aren’t expected to carry passengers’ bags. Charter pilots carry bags and shepherd passengers to and from the aircraft. Neither the FAA nor the charter operators typically have personal experience with the sophisticated level of service that charter passengers expect. Owners of multi-million dollar aircraft have experience in judging pilot’s discretion and demeanor in carrying out these tasks. Dialogue between the industry and the FAA can easily determine methods to protect the FAA’s vital safety interest, and still accommodate the industry’s fundamental mission to provide premium customer service. Jet Solutions agrees with other commenter’s who have suggested clarification language for the FARs: When acting as a crewmember on a flight operated under this Part, the individual is an agent of the certificate holder, regardless of the employment law or employment tax status of such individual. This agency clarification will help the FAA, air carriers, and aircraft owners in understanding the proper relationships in charter management agreements. We believe that this agency clarification will resolve much of the legal concerns that are dominating the current discussion. Resolving these issues with this simple clarification will allow the FAA-industry dialogue to focus on the fundamental safety issues of ensuring, and documenting prior to each charter flight, that the aircraft, crew, flight and passengers are legal. By: Jet Solutions, Dennis Keith http://www.jetsolutions.com/ November 28, 2005 Comments of Mayo Aviation | Word After review of the FAA Wet Lease Guidance I feel that the title of the document is incorrect. It should be Certificate Holder Operational Control Guidance. It appears to me that the primary issue of this document is the FAA attempting to remind FAA inspectors and part 135 certificate holders of who is responsible for operational control of an aircraft and flight crew when they are operating under part 135. In my opinion the operating procedures established by these companies set the precedent for the proper management of non owned aircraft on a part 135 certificate holder’s certificate. The FAA and Industry should be going back to those models to determine if an operator is operating appropriately. If the FAA feels it is necessary to restate the basic requirements and responsibility of Operational Control then by all means they should do so, however they should not hide it in a discussion of wet lease. The regulations clearly do not allow a 135 certificate holder to enter into a wet lease and again if there are operators that are they should be specifically dealt with. I see nothing in this proposed guidance that is any different than the way all part 135 certificate holders should be operating and managing their leased/managed aircraft flying under part 135. However I do suggest that the title be changed to reflect what is truly meant by the document. By: Mayo, Gregory Wilcox http://www.mayoaviation.com/ November 23, 2005 Comments of National Air Transportation Association NATA appreciates the opportunity to comment on this ruling on behalf of our members conducting Part 135 on-demand operations. The Wet Lease Policy Guidance recently issued by the Federal Aviation Administration is deeply troubling to NATA and our members. Although NATA agrees that clarification of operational control issues for Part 135 operations is appropriate, the association feels the notice and proposed guidance does little to improve operational control and safety, or clarify their attributes. If the concepts articulated in the notice are acted upon, they would establish new requirements under Part 135 that do not address the true safety issues and demonstrate a troubling misunderstanding of the complex Part 135 on-demand industry by the agency. Therefore, NATA requests that the FAA withdraw the proposed guidance and instead work with industry representatives to develop cohesive operational control guidance that furthers safety at air charter operations. NATA agrees that every contract between an aircraft owner and a Part 135 Certificate holder must clearly demonstrate which party has operational control of each particular flight in order to ensure that the parties understand which entity will have the ultimate responsibility for safety on each flight. However, the vastly more important parts of operational control are the systems and processes applied to the daily activities of every Part 135 certificate holder. It is these operational control systems and processes developed and implemented by Part 135 operators that serve the safety goal behind the operational control concept. The contracts entered into by owners and Part 135 operators are meant only to be a simple acknowledgement of the basic regulatory concepts and economic aspects of the managed charter relationship. However, this guidance seems to focus solely on the mundane economic aspects of these agreements, such as owner-provided crews and economic arrangements, and does little to address that which the FAA is obligated to pursue: safety. NATA strongly opposes several concepts outlined in the notice, which if taken to their extreme by FAA inspectors create new and unjustified regulatory burdens. For example, the FAA states that a certificate holder lacks operational control if it lacks timely knowledge of the flight and duty status of its pilots, or the means to communicate an order to the crew to delay, cancel, or divert a flight. This statement can be read to establish Part 121-like “dispatch functions,” and an operator-to-pilot communication requirement that do not exist in current Part 135 regulations. The implications of this dispatch requirement for all Part 135 air carriers would require significant investment in new staff and equipment, without a significant impact on safety. Further, “the means to communicate an order to the crew” has no limits. It can be read to require not only continuous ground communication with the crew, but also continuous in-flight communications, neither of which are required by current Part 135 regulations and which would be impossible to implement in certain operational environments. With limited radar and voice communication coverage even in many areas of the continental United States, it is difficult to imagine that the FAA is attempting to place a demand on operators as small as single-pilot, single-aircraft, that the FAA itself cannot meet. NATA respectfully suggests several means to achieve the FAA’s true goal: more definitive demonstration of operational control for Part 135 certificate holders. As stated earlier, as a reasonable means to clarify the pilot’s obligations the following should be added as a regulation under Part 135: When acting as a crew member on a flight operated under this Part, the individual is an agent of the certificate holder, regardless of the employment law or employment tax status of such individual. Finally, the Federal Register notice should be rescinded and Order 8400.83 rewritten to provide FAA inspectors with simple guidance that considers a Part 135 certificate holder’s entire operational procedure, not a few isolated aspects of the written agreement. We are confident that a less stringent alternative can provide the same safety benefits without the negative ramifications of this proposed rule. By: NATA, James Coyne http://www.nata.aero/ Index