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EASA Rules for ‘Off-Lease’ Flights

This is a cautionary, but hopefully informative, tale. Over the last three years, I managed a program that transitioned Airbus aircraft from a European Union Aviation Safety Agency (EASA) registration through a cargo conversion and into another, more demanding registration.

A “twist in the tail” was that these were the first of the type to be certified in the destination register. They had to be unambiguously squeaky clean in every facet. To get through the process, each aircraft had to be ferried many times and over long distances. It was only when this was being planned that I came to understand that times have changed from the days of my youth where a ferry flight meant calling a couple of buddies with the right licences and a few spare days in their rosters.

That led to thinking that there may still be other colleagues out there as yet unsure of the regulations and all their EASA three-letter designators, and who might like a quick layman’s guide.

A Layman’s Guide to Maintenance Check Flights and ‘Demos’

The changes came about in EASA, as so often, because of a tragedy: the crash of an aircraft on a maintenance check flight. Following the investigation, EASA realized that it did not have an adequate regulatory framework around the non-commercial operation of large complex aircraft. Often these operations took place with crews that may not have flown together before, were used to different operational environments and with no operational or quality oversight. It became evident that differing layers of complexity in the tasks undertaken demanded different considerations.

A simple A to B ferry flight was a different project when compared with managing a flight that involved checks on normal system operation and very different again to checks on abnormal system operations. To ensure that these were all captured, properly planned and documented, EASA went back to the tried-and-tested route of the approved organization. While that organization might not be an air operator’s certificate holder, it ought to behave like one, and that is how the regulations are now structured.

As with maintenance, the EASA rules differ in basic principle from those of the United States’ Federal Aviation Administration (FAA), and I will touch on those differences later. However, much of the rest of the world looks upon EASA as the gold standard and adopts similar approaches. We will look at the rules as they apply to a complex commercial aircraft operated under the authority of any EASA state.

Ferrying, demonstration and maintenance check flights all fall under these regulations. Until now, some latitude has been allowed by waivers appropriate to standard uncomplicated ferry flights, but the scope has been progressively tightened, especially in relation to ferry flights being used as demo flights.

In very dry terms, the regulations we must be concerned with are covered by EASA 965/2012 Part – SPO.SPEC.MCF regulations and specifically within this, Annex VIII (Part SPO) and Annex III (Part ORO), and the amending Regulation (EU) 2019/1387. (This makes for hard reading, but them’s the rules!) The first thing to note is that, in accordance with regulation EU 965/2012, all operations of EASA-registered large commercial aircraft outside of an air operator’s certificate must be undertaken by an NCC (non-commercial complex) compliant organization, and the NCC needs to be structured pretty much like an airline, with post holders, safety management systems, quality management systems, etc., and full adherence to the detailed part NCC regulations as posted and regularly amended by EASA.

If you feel drawn to it, this can be found summarized online in the “Acceptable Means of Compliance and Guidance Material document for Part NCC” and “Easy Access Rules for Air Operations,” and this applies to all ferry flights. It also sits over the more detailed regulations for demo flights and maintenance check flights (MCFs). 

Unfortunate and tragic incidents, some of them fatal, have caused EASA to issue further detailed regulations to cover MCFs under EASA 965/2012 Part SPO.SPEC.MCF and amendment EU2019/1387. (I promise I will stop soon!) What these have done is to state that all MCFs are part SPO (specialized operations) and that some are more critical and regulated than others under that part.

The legislation now splits MCFs into two levels:

1. Level A: 1) a flight where the use of abnormal or emergency procedures as defined in the AFM is expected; and 2) any flight required to prove the functioning of backup systems or safety devices
2. Level B: Any MCF other than a level A MCF. This recognizes that all MCFs are inherently riskier than a routine flight and that crews require more training to perform them and particularly to recover from any hazardous situation that might arise. These flights are governed by Part SPO.SPEC.MCF.100 (specialized operations) and Part ORO to ensure correctly trained crew operate the flight and appropriate risk mitigations are in place due to the higher safety risks associated with testing backup and critical systems.

A demonstration flight or a maintenance check flight of an aircraft will involve either Level A or Level B checks of the systems of that aircraft; therefore, the conduct of such flights must be completed in accordance with the provisions laid down in Annex VIII Part SPO and Annex 3 Part ORO of the regulations.

In the past, MCF checks were sometimes carried out under exemptions to regulation EASA 965/2012 issued by national authorities, but it is clear now under the regulations that, for our types of large commercial aircraft, only ferry flights, carrying no passengers or cargo, being ferried for refurbishment, repair, inspection, delivery, export or similar purposes could qualify for such an exemption.

However, an exemption should only be granted if the owner/operator demonstrates that the aircraft cannot be put on a declaration by an NCC-compliant organization. The fact that passengers cannot be carried on such a flight means it cannot be used to demonstrate even the basic functionality of the aircraft. To do that, the flight becomes a Level B flight under Part SPO.

So, dear readers, you can see that this is a minefield for the owner who wants to demonstrate their aircraft to the next operator, especially if cycling and functioning different systems. In EASA, this has to be done by organizations that are in compliance with NCC, including Annex III ORO Annex 8 SPO and Parts SPO.SPEC.MCF.

In Summary

If the flight involves:

• Demonstration of the operation of the aircraft and its normal systems
• Testing critical systems
• Simulating failures
• Using emergency or abnormal procedures
• Using backup or protection systems

then it must be treated as a Level A or Level B flight under Part-SPO.SPEC.MCF.100, flown by an appropriately certified organization employing a qualified crew regardless of whether it is labeled a demo or an MCF flight.

If a demonstration flight involving Level A or Level B checks is conducted under an exemption to 965/2012 instead of Part-SPO.SPEC.MCF.100, the operator may be found to be in violation of EU Regulation 965/2012, and this would present compliance and safety issues due to the absence of required risk mitigations and noncompliance.

Implications include:

• Potential regulatory action from the competent authority (e.g., EASA)
• Increased risk of an incident and liability for the operator
• Insurance issues
• Penal consequences for the parties involved, including the owner, CAMO and operator

As is so often the case, aircraft operating under the FAA have an easier time of it. The closest FAR to the EASA NCC is Part 91 and, as usual, EASA NCC requires far more oversight than FAR91, which essentially governs general aviation.

EASA requires all NCC operators to maintain a comprehensive organizational structure that includes:

• Accountable manager
• Director of flight operations
• Director of ground operations
• Director of safety
• Compliance monitoring manager
• Training manager

Additionally, operators must have:

• Operations manuals
• Safety management systems (SMS)
• Risk assessment procedures

In contrast, in FAA land, FAR Part 91 requires none of these roles or documents, leaving operators to self-regulate, which can, arguably, lead to lack of accountability and formalised procedures, SOPs, safety oversight, inconsistent practices and increased risk.

MCFs under the FAA are covered by Part 91.407(b) and are not segmented into any Level A/B type structure. The only additional requirement is that if any system is to be checked in any way such that the aircraft becomes even temporarily non-airworthy, then a special flight permit must have been issued in advance.
It should noted that Part 91 operations generally experience significantly higher incident and accident rates compared to other regulated flight operations in the U.S. In 2020, the National Transportation Safety Board (NTSB) drew attention to this and requested the FAA review safety in Part 91 commercial operations. Part 91 compares less favourably with the European experience.

Takeaway

The takeaway from all this is that the flying of EASA-registered aircraft between leases has become a much more complicated process, with very specific regulations, processes and procedures that owners and lessors need to be aware of when addressing risk and compliance. As so often in this business, the best way to stay the right side of the law is to use expert ferry flight companies and ask questions until you are reassured that they are qualified for the mission you want to undertake.

As one of pioneering “low cost” airline CEOs famously said, “If you think safety compliance is expensive, you should try having an accident!”

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