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Safety Recommendation Details

Safety Recommendation A-09-076
Details
Synopsis: On March 4, 2008, about 1515 central standard time, a Cessna 500, N113SH, registered to Southwest Orthopedic & Sports Medicine Clinic PC of Oklahoma City, Oklahoma, entered a steep descent and crashed after colliding in flight with a flock of large birds about 2 minutes after takeoff from Wiley Post Airport (PWA) in Oklahoma City.2 None of the entities associated with the flight claimed to be its operator. The pilot, the second pilot,3 and the three passengers were killed, and the airplane was destroyed by impact forces and postcrash fire. The flight was operated under 14 Code of Federal Regulations (CFR) Part 91 with an instrument flight rules (IFR) flight plan filed. Visual meteorological conditions prevailed. The flight originated from the ramp of Interstate Helicopters (a 14 CFR Part 135 on-demand helicopter operator at PWA) and was en route to Mankato Regional Airport (MKT), Mankato, Minnesota, carrying company executives who worked for United Engines and United Holdings, LLC.
Recommendation: TO THE FEDERAL AVIATION ADMINISTRATION: Revise 14 Code of Federal Regulations 91.23 truth-in-leasing regulations to include all turbine-powered airplanes.
Original recommendation transmittal letter: PDF
Overall Status: Closed - Unacceptable Action
Mode: Aviation
Location: Oklahoma City, OK, United States
Is Reiterated: No
Is Hazmat: No
Is NPRM: No
Accident #: DFW08MA076
Accident Reports: Crash of Cessna 500, N113SH, Following an In-Flight Collision with Large Birds
Report #: AAR-09-05
Accident Date: 3/4/2008
Issue Date: 9/29/2009
Date Closed: 6/7/2016
Addressee(s) and Addressee Status: FAA (Closed - Unacceptable Action)
Keyword(s):

Safety Recommendation History
From: NTSB
To: FAA
Date: 6/7/2016
Response: We issued this recommendation because, in our investigation of the March 4, 2008, accident in Oklahoma City, we had found it difficult to determine who had operational control of the flight, and because none of the organizations involved—the owner of the airplane, the organization for whom the flight was chartered, or the organization that had arranged the flight—believed it had the responsibility for operational control. We believe that, had an organization been required to comply with Section 91.23, which requires a clear statement on who has operational control for a flight, this situation would have been avoided. Although the accident airplane was turbine powered, Section 91.23 did not apply to the aircraft because it had a maximum allowable takeoff weight of less than 12,500 pounds. We note that you analyzed incident and accident safety data from the 1980s to the present and you did not find that leasing, truth in leasing, or operational control was related to the safety issues in the accidents and incidents reviewed. As a result, you were unable to find any justification for the recommended rulemaking. However, on February 10, 2016, you revised advisory circular (AC) 91-37, “Truth in Leasing” to clarify issues related to leasing and operational control. Although the updated AC encourages owners, managers, lessees, operators, and customers to understand chartered and leased airplane arrangements, and assists the FAA in detecting improper activity in all airplanes, regardless of current Section 91.23 applicability, we do not agree that issuing the revised AC constitutes an acceptable alternative to the recommended action. We continue to believe that the requirements of Sections 91.23 need to apply to turbine-powered aircraft with a maximum allowable takeoff weight of less than 12,500 pounds to ensure that the organization responsible for operational control is clearly identified to all parties involved. We remain concerned that, even with the revisions in the AC, organizations may continue to enter into a lease or charter arrangement without any single organization or person accepting responsibility for operations. Were the organizations entering into a charter arrangement required to execute an agreement that clearly defined such responsibility, potential confusion would be eliminated. We continue to believe that the requirements of Section 91.23 should be applicable to all turbine-powered flights, not only to those with a maximum allowable takeoff weight above 12,500 pounds. We do not believe the AC alone will bring about this action. However, because you have indicated that you plan no further action to satisfy Safety Recommendation A-09-76, it is classified CLOSED—UNACCEPTABLE ACTION.

From: FAA
To: NTSB
Date: 4/28/2016
Response: -From Michael P. Huerta, Administrator: During the initial rulemaking effort that led to 14 CFR 91.23, the Federal Aviation Administration (FAA) considered applying the truth in leasing clause to large or turbine-powered aircraft. After study and consideration of the public comments received on the original notice of proposed rulemaking, we concluded that safety would not be compromised if the "truth in leasing'' clause was only made applicable to large aircraft. However, we did note that rulemaking could be proposed at a later date to require truth in leasing for additional aircraft if circumstances warrant. The issue of truth in leasing was revisited for Very Light Jets aircraft (less than 12,500 pounds) during a 2010 rulemaking effort, and again the determination was made that truth in leasing regulations would apply only to large aircraft. As we previously reported to the Board, we considered establishing a workgroup to review this recommendation. We conducted a preliminary accident analysis to determine the feasibility of that effort. We analyzed the Board's incident and accident safety data from the 1980s to the present to determine if negative safety trends demonstrate a need to change "truth in leasing'' requirements to include all turbine-powered airplanes. The data reviewed included numbers of incidents or accidents where "lease," "leasing," "truth in leasing," and/or "operational control" were mentioned in the incident/accident reports. We found that leasing, truth in leasing and operational control had little bearing on aircraft accidents during this time frame. As a result of this analysis, the FAA was unable to validate any increase in leasing activity or accidents due to misunderstanding of operational control that would substantiate a need for a workgroup or additional rulemaking. To clarify leasing and operational control, however on February 10, 2016, the FAA published Advisory Circular (AC) 91 -378, Truth in Leasing. The AC includes current regulations, an accurate explanation of the differences between a wet and dry lease, and how to detem1ine responsibility for operational control. The revised AC is located at the following Web site: http://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.infOJmation/document!0/1028946. We believe the updated AC meets the intent of this recommendation by encouraging owners, managers, lessees, operators, and customers to understand chartered and leased airplane arrangements, and assists the FAA in detecting improper activity in all airplanes, regardless of current 14 CFR 9 1.23 applicability. I believe that the FAA has effectively addressed this safety recommendation and consider our actions complete.

From: NTSB
To: FAA
Date: 5/23/2013
Response: In its December 23, 2009, letter, the FAA stated that, in response to these recommendations, it intended to initiate a workgroup to review Safety Recommendation A-09-76 and that it would determine the feasibility of modifying the flight plan form. We are concerned that, although more than 3 years have passed, we have received no additional information regarding the status of either effort. Pending our timely receipt of an update and completion of the recommended action, Safety Recommendation A 09 76 and -77 are classified OPEN—UNACCEPTABLE RESPONSE.

From: NTSB
To: FAA
Date: 5/27/2010
Response: The FAA’s plan to initiate a workgroup to review this recommendation is the first step in taking the recommended action. Pending the FAA’s completing that action, Safety Recommendation A 09 76 is classified OPEN -- ACCEPTABLE RESPONSE.

From: FAA
To: NTSB
Date: 12/23/2009
Response: Letter Mail Controlled 1/7/2010 3:59:43 PM MC# 2100009: - From J. Randolph Babbitt, Administrator: FAA is initiating a workgroup to review this recommendation. This action is expected to be complete by September 30, 2010. When it is completed, FAA will provide an updated response to the Board.