Attorney Jessica L. Pownell examines Part-NCC – the European Union’s latest mandate for operators of not-for-hire business aircraft within EASA member states… Will you be compliant by August 25?
As the compliance deadlines for other well-known regulations creep closer (such as the FAA’s 2020 deadline for Automatic Dependent Surveillance Broadcast (ADS-B) and the potential end later this year of the “stop-the-clock” provision of the European Union Emissions Trading Scheme (EU-ETS), a more immediate deadline looms for all non-commercial operators of complex motor-powered (NCC) aircraft that have their principal place of business or residence in a European Aviation Safety Agency (EASA) Member State.
Though some EASA Member States, such as France, have already implemented the Part-NCC regulations, many Member States utilized the EU regulatory option to postpone implementation of Part-NCC until August 25, 2016. Thus, NCC operators in all Member States must be ready for the final August 25 deadline.
Do I Have to Comply?
As noted, Part-NCC applies to all aircraft that are both non-commercial and complex motor-powered, where the operator has its principal place of business or residence in an EASA Member State (whether or not the aircraft is registered in an EASA Member State). Thus, determining whether Part-NCC applies to an operation requires an analysis of the type of aircraft, the characteristics of the aircraft operations, and the operator’s status.
The applicable definitions (found in the Basic Regulation) essentially provide that ‘commercial operation’ means any aircraft operation in return for remuneration or other valuable consideration available to the public or performed under a contract between an operator and a customer, where the customer has no control over the operator. The Basic Regulation further provides that “complex motor-powered aircraft” means:
If the aircraft operation is, indeed, a non-commercial operation of complex motor-powered aircraft, Part-NCC applies if the operator (defined in the Basic Regulation as any legal or natural person operating or proposing to operate the aircraft) has its principal place of business or residence in an EASA Member State. Note that the status of the aircraft’s registered owner is not determinative, and Part-NCC can apply even if the aircraft is registered, or if the owner is based in a non-EASA country.
How Do I Comply?
Part-NCC is focused on safety and is intended to implement a structured, auditable aircraft operations framework similar to that for Air Operator Certificate (AOC) holders. The regulation details requirements for various operational procedures and requirements, including aircraft performance and operating limitations; instruments, data, and equipment requirements; crew training and other requirements; regulations for the carriage of dangerous goods; and special rules for helicopters.
In particular, Part-NCC requires creation and implementation of a Minimum Equipment List (MEL), a Maintenance Control Manual (detailing the operator’s plan for the continuing management of the aircraft’s airworthiness), and a Company Operations Manual (to include a Fatigue Risk Management Program (FRMP) and a Safety Management System (SMS), and assignment of the aircraft to a Continuing Airworthiness Management Organization (CAMO)).
Further, prior to the August deadline, NCC operators must complete and submit to the aviation authority of the operator’s applicable Member State a declaration of compliance with Part-NCC, along with a list of any required specific approvals (such as RVSM).
Part-NCC aircraft operations will, thereafter, be subject to ongoing inspections and audits. Part-NCC includes a list of documentation that should be carried on board the aircraft, including the declaration; it is also advisable to carry on board any acknowledgement of the declaration that the operator receives from the applicable aviation authority.
As discussed earlier, Part-NCC may apply even if the aircraft is not registered in an EASA Member State. However, there are some exceptions for foreign, “third-country” registered aircraft. Notably, EASA has confirmed that, though like all other NCC operators, European NCC operators of third-country registered aircraft need to ensure and demonstrate the ongoing management of their aircraft’s airworthiness, such need not be done by a CAMO and can be accomplished by the operator itself or another person or organization under the responsibility of the operator. (However, dealing with a CAMO may well be a viable option.
What’s the Liability Risk for Non-Compliance?
Affected operators should be aware that the penalties for Part-NCC non-compliance can be severe, including potential civil, criminal, and administrative liability; grounding of their aircraft; and denial of aircraft insurance coverage.
Note that one may be able to appoint a third party as the aircraft operator and, accordingly, transfer the operator liability to such entity. However, before doing so, one should not only confirm that such transfer of operational control complies with applicable law but also ensure that the applicable contracting documents fully transfer all operator responsibility and liability to the third party.
As well, an operator will want to consider any potential tax implications and confirm whether the aircraft’s insurer and lender (if any) will approve of such transfer.
Where Can an NCC Operator Turn for Assistance?
Various resources exist for operators working to comply with Part-NCC. In order to assist operators in reviewing the detailed Part-NCC regulation and its various Amendments, EASA has published a Consolidated Acceptable Means of Compliance and Guidance Material to Part-NCC. As well, many Member States have issued additional guidance.
Notably, International Standard for Business Aircraft Operations (IS-BAO) – the code of best practices created by the International Business Aviation Council (IBAC) in 2003 and amended by IBAC in 2012 to include helicopter operations – is about 75% complaint with the relevant portions of Part-NCC (as well as Part-ORO and Part-SPA, the portions of the EU Air OPS Regulation governing Organization Requirements and Operations Requiring Specific Approvals, respectively). IBAC offers a gap analysis tool for IS-BAO-compliant operators.
Finally, and perhaps most importantly, various third-party providers offer nearly all levels of assistance with achieving Part-NCC compliance.
As noted, some providers even offer to act as the aircraft operator, though such a transfer can involve various considerations, as detailed earlier.
The deadline is approaching, but hopefully, with the various resources available, all European NCC operators will be able to comply with Part-NCC by August 25, 2016, and continue aircraft operations without interruption.