Lowenstein-Lowenstein Law Office 2016

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U.S. Department of Transportation Federal Aviation Administration AUG 1 2 2016 Anthony S. Lowenstein Lowenstein Law Office 4040 Civic Center Drive Suite# 200 San Rafael, CA 94903 Office of the Chief Counsel · 800 Independence Ave., S.W.

Washington, D.C. 20591

Re: Request for Legal Interpretation of 14 CFR § 91.409(b)

Dear Mr. Lowenstein:

This is in response to your letter dated March 28, 2016, in which you asked for a legal interpretation of 14 CFR § 91.409(b) with respect to whether the regulation's 100-hour aircraft inspection requirement applies when an aircraft provided by a fixed base operator (FBO) to a renter who then hires a certified flight instructor (CFI) to provide flight instruction in that aircraft. The nuance to your question is that the flight instructor's name appears on a list of CFis that are pre-approved by the FBO to operate its aircraft, and the list is maintained by the FBO and is available to the aircraft renter.

Your fact scenario may be summarized as follows: An FBO rents airplanes to renters. Some renters periodically rent an airplane from the FBO and hire a CFI to provide flight instruction to them in the rented _airplane. The FBO neither employs nor contracts in any way with any CFI. All CFis are treated by the FBO like any other [prospective] renter (in that to be eligible to rent and/or fly as pilot-in-command of one of the FBO's airplanes, the CFI must pass a "check-out ride" with one of the FBO's authorized Chief Pilots (for quality assurance purposes to ensure that all renters are cunent, proficient, and made aware of and use lawful, safe, and company approved procedures, and confomed to be familiar with local landmarks and nuances). The FBO maintains, and upon request, offers renters a list of CFis who have been checked out by the FBO to fly its airplanes. The FBO takes no role in providing or arranging for these CFis. You emphasized the following three points:

1. The FBO has no contractual relationship with any CFI. Renters compensate the CFI directly, with no involvement by the FBO.

2. The FBO does not recommend or give preference to any CFI. The FBO does not require that any CFI chosen by a renter be already pre-approved by the FBO and on its aforementioned list of CFis.

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3. Any renter is able to choose any CFI of his or her choosing, whether or not the CFI is on the pre-approved list, as described in number 2, above.

Based on the above, you asked two specific questions:

1. Does§ 91.409(b) apply to the CFis in the above scenario? (Are those CFis provitiing the aircraft for the purpose of§ 91.409(b))?

No. Section 9 l .409(b), in pettinent part, provides that "no person may give flight instruction for hire in an aircraft which that person provides, unless within the preceding 100 hours of time in service that aircraft has received an annual or 100-hour inspection ... ." Here, assumjng the accuracy of the FBO's assertion that it in no way provides the CFI (such that CFI through the FBO could be deemed as providing the aircraft), it is the renter who provides the CFI and, tlu·ough the rental of the aircraft, the person receiving the instruction is providing the aircraft (the same as if he or she owned, rented/leased, or borrowed it from elsewhere) the arrangement does not come within the purview of§ 91.409(b).

2. Is the scenario here (as relates to § 9 l .409(b)) any different than the "Aircraft owner scenario" (where an Aircraft owner, provides the aircraft and hires his own Instructor - which is not subject to a 100-hour inspection under § 91.409(b)? (Is it different in this Scenario where instead of an Aircraft Owner, there is an Aircraft Renter who provides the aircraft and hires his own Instructor?)

No. As indicated in our answer to your first question, above, it makes no difference whether the person providing the aircraft is an owner, renter, lessee, or borrower, so long as the person providing flight instruction is not in any way providing the aircraft.

You asked a final, un-numbered question: "Given the above Scenario, ([the FBO] has no contractual relationship with CFis, and is merely renting its aircraft to Renters and requiring them to hire independent CFis, with specifics above), for CFis to provide instructions on [the FBO's] aircraft, does [the FBO] need to conduct 100-hour inspections on its aircraft? No, under the narrow facts provided, the FBO would not be held to the regulation's 100-hour inspection requirement. We caution, however, that this arrangement should not be used as a "work-around" the regulation, whereby a company rents the aircraft to a student and then later also provides, or is instrumental in providing, the flight instructor separately. On May 4, 2016, the FAA' s Office of the Chief Counsel issued a legal interpretation that addressed similar issues. 1 (Copy enclosed.) In it we stated: "If the person receiving flight instruction does not own the aircraft, the FAA may review the manner by which that person provided the aircraft to ensure the instructor, or an entity represented by the instructor, did not effectively provide the aircraft." 1 Letter dated May 4, 2016, to Nicholas Pipitone from Lorelei Peter, Assistant Chief Counsel for Regulations, AGC-200. Your request referenced a related interpretation we issued in 2014, which, although addressing six different scenarios did not answer your precise issue. We issued the Pipitone letter after you mailed your request to us, and we believe it will help clarify these matters for you.

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I hope this information is helpful. This response was prepared by Edmund Avennan, an attorney on my staff, and coordinated with the FAA's Aircraft Maintenance Division (AFS-300). If you have fuither questions concerning this response, please contact us on (202) 267-3073.

Sincerely,

cfliu_c_.;_~ Lorelei Peter Assistant Chief Counsel for Regulations, AGC-200 Enclosure

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To: Page 1 of 2 2016-03-29 02:28:22 (GMT) Lowenstein Law Offic From: Anthony Lowenstein LQ1'/B.lf~BJN LAW OFFJCB 4040 Civic Center D.-. #200, San Rafael, CA 94903 415-272-1292 • 415-366-2110 Fox Anthony S. Lowenstein, Esq. A@LowcnstclnLnw.com • Lowcnsteiul.Atw.com March 28, 2016 Offic-e of the Chief Cotmsel 800 Independence A venue SW Washington, DC 20591 (202) 267-3222 I 202-267-3073 (202) 267-3227 Fax AGC-200 Interpretation Department Kim L. Young

RE: Request for Legal Interpretation of 14 CFR §9l .409(b)

Dear FAA:

This Jetter requests FAA interpretation on a very specific- point in 14 CFR § 91.409(b) regarding the applicability of the 100-hour inspections requirement. under that regulation to rental aircraft. For your reference, I have attached a 2014 FAA Interpretation of §91.409(b), which addresses other issues in six different scenarios, however I request interpretation on an issue not addressed in those scenarios. To confin:n my understandiug of 14 CFR §9 l .409(b)- and please advise if this is, in any way, not eorrect: §91.409 Inspections.

(b) Exceptns provided in paragraph (c) of this section, no person mny operate an aircraft. cnrrylng any person (other thnn a crewmcmbcr) for hire, and 110 ncrson m ay gi.vc flight instr.uction for Jiirc in an air.cruft which that pcrso11 provides, tmless within the preceding 1.00 hours of timl! io service the:: aircraft has received an annual or 1.00-hour inspectiot1 ...

SllMMAUY - Tl1e LOO-hour inspection is required for aircraft.: that carry :my person (other tba11 n crewmember) for hire; and/or thnt are provided by any person giving flight instnicdon for bi re. The phrase "for hire" refers to the person, not the aircraft. If a flight iustrnctor provides an aircraft, or any organization thnt. supplies both flight instruction ond an oircrnft, t.hat. nircraft. is subject to the l 00-hour inspe.ction. Conversely, au nircrnft provided (owned or rented) by the (student) Pilot, who is receiving, i nstrnc~ ion, is not subject to the 100-hour inspection.' J l. · ' '; . . .. • Is the above S1nnmary accmate and correct? If not, please advise and explain how and why it is in any way inaccurate or incorrect.

REQUEST FOR LEGAL INTERPRETATION - "Scenario":

Attitude Aviation ("Attitude") is an FB0 1 that tents airplanes to Renters ("Renters"). Some of its Renters are certificated Pilots who just want to rent aircraft for private flight. Some Renters periodically want to rent the aircraft and have a Certificated Flight lnstructor'(''CFr') join to provide instruction for additional ratings and/or recurrency training and instruction (such as a Biennial Flight Review or Instrument Proficiency Check, etc.). Some of its Renters are Shiderit'Pilots, who wish (or need) to have a CFijoin for training.

1 Attitude is just an FBO an.d not n "Flight Club". It does not have "memberships". Query whether the "Scenario" would be any different for a Flight Clnb'? - '. ! , J I ~- , ! t • l l , ! 11 \' I • l j I , I I .

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To: Pcige 2 of 2 2016-03-29 02:28:22 (GMD Lowenstein Law Offic From: Anthony Lowenstein Attitude neither employs nor contracts, in any way, w ith any CFis. CFis are treated like any other [prospective] Renter of Attitude: which is that to be eligible to rent and/or 11y as P.I.C. of any or specific Attitude aircraft, one needs to pass a "check-out ride" with one of Attitude's authorized Chief :Pilots, primarily for insurance purposes (as well as quality assurance and training to ensure that a11 renters are current, proficient, and made aware of and \.!SC lawfo1, safe and company approved procedures, and. confim1ed to be familiar with local landmarks and nuances). 2 Attitude maintains, and upon request, offers to its Renters a " list" of CFis who have been check-out to fly Attitude Aircraft. However.• to be clear, other than maintaining and offering to Renters the above list, Attitude takes no role in providing or arranging CFis. Specifically, to be clear:

(l ) Attitude has no contractual relationship with its CFis. Indeed, the terms of a CFl and Renter are solely bet\veen that CPI and Renter and the Renter compensates the CFI directly (with no guidance or oversight by Attjtude).

(2) Atlitude does not recommend or give preference to any CFI~; Attitude does nol require CFis to be existing approved Pilots I CFI's of Attitude.

(3) As a result of#2, above, any Renter who wants a CFI is able to choose any CFT s/he wishes (regardless of whether that CFI is an existing approved Pilot I CFI of Attitude)- and indeed a Renter may acquire and bring and use his/her own new CF!,. who is not on the "list" - right alter that CFI passes the "check-oi.1t ride", above) T he issue for L e gal Interpretat.ion relates to Attitude and the CFls who provide instruction in Attitude's aitcraft (to Att1tude's Renters) - whetber 14 CFR. 9l.409(b) applies, and thus whether the aircraft require the 100-b.our inspection under 14 CPR 91.409(b).

. ; : ; t .. \ •. · I ~ I . l 1 P . I (1) Does §91 .409(b) apply to the CFis in the above scenario? (Are those CFis providing the aircraft for the purposes of §91.409(b)?

(2) Is the Scenario here (as relates to§ 91.409(b)) any different than the "Aircraft owner scenario" (where an Aircraft Owner, provides the aircrail and hires his own Instructor - which is not subject. to a 100-hour inspection under §91.409(b)? (Is it differen t in this Scenario where instead of an Aircratl Owner. there is an Aircrafl: Renter w ho provides the aircraft and hires his own Instructor?) Given the above Scenario, (Attitude has no cQntractual r~ l ationsh ip with CF!s, and is merely renting its aircraft to Renters and requiring them .to.hire. independent CFls,.with specifics above), for CFis to provide jnstmctions on Attitude's aircraft, does Attitude need to conduct 100-hour inspections on its aircratr!

Sincerely,

,.., / .

C:( ~~re*~k~_:_ Anthony S. Lowenstein, Esq, 2 The charge for the checkout tlight is solely for the cost of the airplane. The Rente~ is P.I.C. und the chief pilot or desig11ee who ntteL1ds is just there to conduct the flight check - not to provide instruction. lf iostniction is needed, the Pilot: will Mk them to get further instruction, supra, before attempting another check ride.

'.'! \ : . Lowenstein Law Office . .: : : ~' :... .