Recently a Fixed Base Operator (FBO) contacted me concerned that they may be violating a Code of Federal Regulation (CFR). Their concern was whether their actions would constitute a flight operation under Part 135, which would require much more regulation and oversight, or whether the operation would qualify under Part 91, a much more relaxed area of regulations in which to operate. The issue was whether an individual business person, who independently rents an aircraft from the FBO and then hires an independent pilot to fly him in that aircraft to various locations on an “as needed” basis would constitute an operation under CFR Part 91?
Under CFR Part 91 it is permissible for a pilot to work for as a pilot for hire for another individual (assuming the contracted pilot meets all other commercial requirements under the CFR’s). The caveat is that the hiring party (we will refer to him as a non-pilot party, NPP), and not the contracted pilot, procures the aircraft. In order for the flight to stay within FAR Part 91, if the NPP procures an aircraft, and then retains a pilot to transport that NPP, the NPP may not delegate certain acts attendant to the rental agreement to the flying pilot. The NPP must make the rental arrangements for the aircraft, negotiate the times of aircraft usage, and make the rental payments directly to the lessor, (in this case, the FBO). The contracted pilot may not be involved in these activities. If, on the other hand, the NPP contracts with a pilot to fly that NPP, and it is the contracted pilot who rents the aircraft to perform that service for the individual, the pilot is required to hold a Part 135 certificate.
In order to qualify as an operation under FAR Part 91, the pilot must be the servant of the entity renting the aircraft. The fewer the ties between the pilot and the provider of the aircraft for rent, the clearer the line between pilot service and an operation conducted for hire, subject to the operating limitations of FAR Part 135. To remain operating under Part 91, the contracted pilot must be paid by the entity renting the aircraft, and should not be involved in the renting process in any way. The FAA has commented that it would not criticize an arrangement where an enterprising businessman realized that he can save money over charter rates by renting an aircraft and hiring a qualified local pilot to fly the trip for him.
It is important to follow the specific restrictions in order to maintain operations under FAR Part 91. A pilot is subject to CFR Part 91 rules at all times, because these are Air Traffic and General Operating Rules that govern all flights. The rules of Part 135 are imposed in addition to Part 91, and a crewmember is responsible for both. However, if Part 135 further restricts a provision of Part 91, the part 135 regulation controls. Any doubts regarding the applicability of Part 135 to a proposed operation will most likely be determined that Part 135 applies.
If you have received a notice of enforcement action from the F.A.A. for violation of a federal aviation regulation, you need the assistant of a competent aviation lawyer immediately. Do not wait and do not make any statements to any investigators without first speaking to your aviation lawyer. Anything you say can AND WILL BE used against you. The rules of evidence are very different between criminal law and administrative law proceedings. The investigator is permitted to testify as to what you told him, and may even testify as to a statement that someone else told him you made. It is important to safeguard your rights as well as your flying privileges by contacting the aviation attorney’s at The Trial Lab immediately. Call (562) 452-9522 today, or email at TGH@TheTrialLab.com
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