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Aviation History
2003
2003 - 2129.PDF
Fractionals the 11 meetings, stated their position and left," says Ian Clark, aviation lawyer and partner of London-based law firm Clark Ricketts. Clark and other industry repre sentatives are unanimous in their rebuke of the UK's actions. "How can you hope to influence the debate if you are not in on it from the start," says Blouin. Others suggest the dispute between the UK and the USA may have been avoided if the UK had been prepared to play a greater part in the rule-making process. A FOARC committee member says: "They probably wouldn't have changed their minds, but they would have had more information on how this thing has developed and how comprehensive the rule is." The FAA has, through Part 91 Subpart K, tightened the rules covering fractional pro grammes. They now also reflect the current aircraft technology and certification stan dards, and include updated and improved the rules for on-demand charter. For fractionals, however, the final rule has thrown up a couple of unwelcome and significant additions to the FOARC is final submission, establishing a 14h flight and duty time limitation and reducing the allowable landing distance from 80% to 60% of runway length - although approval will be granted by the FAA for an 80% landing if a safety analysis of the destina tion airport is completed, the NBAA says. In Subpart K, the FAA for the first time clearly places responsibility and authority for safety and oversight of flight operations with the owner. This is at odds with the UK and Europe's position, however, which states that the management company and not the frac tional owner has overall control of the operation, a position which means that the fractional operation must therefore be regarded as public transport. This stance is dismissed by Clark. "Pri vate companies, heads of state and flight departments sometimes all use manage ment companies. Some are holders of air operators certificates and use the man aged aircraft for the transportation of fee- paying passengers under public transport [commercial] - some are not". He adds: "Do you apply the UK's logic across the board? If so it would throw corporate avia tion into chaos." The legal argument is this, Clark says: under Article 113 of the UK's Air Navigation Order, where a foreign aircraft is operating commercially, the Transport Secretary's permission is required for the picking up and setting down of passengers. This is based on two tests - safety and eco- 3 nomic. The safety concerns are believed to | have been addressed, "the CAA having § now been persuaded that the safeguard in 5 Subpart K is of a high enough standard", § "The very nature of fractional ownership is that you can fly at short notice. If you JM75TTHTT take two days, you lose the advantages DOUG CARR, NBAA US fractionals heading for the UK will require landing permits says Clark, although the authority has yet to state its position publicly. So what is the economic issue? The UK says it normally gives permission where there is reciprocity, or where the right would be granted equally in the USA. Here, the UK government says there is not reci procity because there are no fractional ownership schemes in the UK. "It is ridicu lous to use this as a case for non-reciproc ity," Clark says. "Logically, they have defeated their argument." Private operations The USA argues that as fractionals are con sidered private operations there should be no requirement to seek permission under Article 113. On the other hand, why is the USA opposed to fractionals operating under Part 135 and applying for permission from the Secretary of State for Transport? "Because it's unacceptable" says NBAA's director of operations Doug Carr. "The very nature of fractional ownership is that you can fly at short notice. If you have to apply for clearances, which can typically take two days, you lose a lot of the advantages." Even if they have permission to fly transatlantic under Part 135, operators are not permitted to undertake internal domestic flights in Europe. "This is a hin drance if you are a fractional owner plan ning business in several European destina tions," Carr adds. The frustrations felt by the US industry towards the UK's stance resulted late last month in a top level meeting in Wash ington between UK and US government officials and industry leaders. This was fol lowed last week by a second meeting in London, although the outcome of these discussions has not been disclosed. The UK appears to be the solitary voice of dissent in Europe as the rest of the con tinent, throughout which Article 113 is not standardised, has yet to declare their positions. While France is known to be renewing its position on fractional owner ship, Clark adds: "Many countries haven't applied their minds to it and because of that there is no unified voice." Meanwhile, as the international business aviation community is keen to see an end to this dispute, the ramifications of either outcome are wide-ranging. "If the UK insists on putting up barriers to US fractionals, what is to stop the US from reciprocating?" says Brian Humphries, chairman of the European Business Aviation Association and managing director of Shell Aircraft International, the corporate aircraft depart ment and aviation policy advisor for the Shell Group. "If the US decides to play hard ball with corporate operators from the UK, it will be chaos," says Blouin. The USA may in the end think this issue is significant enough to influence the cur rent bilaterals on air traffic rights with the UK, says Clark. He adds: "The UK stands a chance of having its industry curtailed if it doesn't recognise Subpart K." On the other hand, if the UK and even tually the rest of Europe accept Subpart K operations, what would be the knock-on effect for Europe public transport opera tors? "It would certainly make the compet itive and operating playing field uneven if fractionals were allowed to operate under a different and less restrictive set of rules", EBAA's Humphries says. Of particular concern for Europe's air- taxi operators is the freedom for US frac tionals, if considered private, to by-pass cabotage rules and drop off and pick up passengers, "We are totally against this," says David Antrobus, managing director of Manchester-based charter operator Northern Executive Aviation. www.flightinternational.com FLIGHT INTERNATIONAL 30 SEPTEMBER - 6 OCTOBER 2003 35
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