AOPA Pilot Magazine - December 2016 - 24

PILOT COUNSEL

BY JOHN S. YODICE

Parsing FAR 91.409(b)
Flight training and the 100-hour inspection

JOHN S. YODICE

is the former
general counsel
for AOPA and a
longtime contributor to AOPA Pilot.

IT IS ALMOST too obvious to mention, but it is necessary
to put this FAA interpretation in context. So, here we
go. The regulations say the pilot in command of a civil
aircraft is responsible for determining whether that aircraft is in condition for safe flight, including that the
aircraft must be inspected before each flight. In addition, more detailed inspections must be conducted by
aviation maintenance technicians at least once each 12
calendar months, while inspection is required for others after each 100 hours of flight. In other instances an
aircraft may be inspected in accordance with a system
set up to provide for total inspection of the aircraft over
a calendar or flight time period.
As to the preflight inspection, pilots generally
follow a checklist contained within the pilot's operating handbook when operating aircraft. The checklist
includes a section titled "Preflight Inspection." The
preflight inspection checklist includes a "walkaround" section listing items the pilot is to visually
check for general condition as he or she walks around
the airplane. Additionally, it is the pilot's responsibility
to review the airworthiness certificate, maintenance
records, and other required paperwork to verify the
aircraft is indeed airworthy.
With some exceptions, all aircraft must have a complete inspection annually. Aircraft that are used for
commercial purposes and are likely to be used more
frequently than noncommercial aircraft must have a
complete inspection every 100 hours.
Here is an August 2016 interpretation by the FAA's
chief counsel that adds a nuance to the normally
encountered flight training situation, which bears
noting. Pilots are generally aware of the requirement
for a 100-hour inspection of aircraft used for training
by flight schools-that is, in addition to the annual or
progressive inspection. On the other hand, pilots are
generally aware that there are other flight training situations that do not require a 100-hour inspection, most
particularly when an aircraft owner, renter, lessee, or
borrower receives flight instruction in the owned,
rented, leased, or borrowed aircraft. The nuance added
in the interpretation is that an aircraft may be rented
from a fixed-base operator that also maintains a list of
approved instructors, and an instructor from that list
provides the flight training.

24 | AOPA PILOT December 2016

The 100-hour inspection requirement is spelled
out in FAR 91.409(b), which should be carefully read.
It provides, in pertinent part, 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."
The key to the applicability of this regulation is the
language that the instruction must be "in an aircraft
which the person [the flight instructor or the flight
school] provides."
Here is the fact scenario presented to the FAA. "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 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 checkout ride with one of the
FBO's authorized chief pilots for quality assurance
purposes to ensure that all renters are current; proficient; and made aware of and use lawful, safe, and
company approved procedures; and confirmed 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."
The FAA says, assuming the accuracy of these
FBOs' assertions, the 100-hour inspection requirement does not apply. The nuance, an FBO-approved
list of flight instructors, is one that we don't normally
encounter. However, the FAA is very careful to offer
this caution "that this arrangement should not be used
as a 'work-around' of the regulation, whereby a company rents an aircraft to a student and then later also
provides, or is instrumental in providing, the flight
instructor separately." In an earlier interpretation, the
FAA additionally offers this caution that "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."
AOPA

Table of Contents for the Digital Edition of AOPA Pilot Magazine - December 2016