AOPA Turbine Pilot Magazine - May 2022 - 28

FOR THE RECORD
Owning is
operating
Are you responsible for FAR violations
committed by pilots borrowing your aircraft?
BY IAN ARENDT
AN AIRCRAFT OWNER lends her aircraft to a longtime friend, who
departs from a nontowered airport and conducts a routine VFR
flight. The friend inadvertently enters the outer ring of Class C airspace
without first establishing two-way radio communications
with ATC-potentially violating FAR 91.130(c)(1)-but realizes his
mistake and immediately exits the Class C airspace without ever
speaking to ATC. After landing, the friend confesses his mistake to
the aircraft owner, who agrees not to divulge the friend's identity
as the pilot in command of the flight if the FAA comes knocking.
However, this aircraft owner-like all others-should be aware of
her potential liability for violations involving her aircraft.
When the FAA identifies a possible deviation but the identity
of the aircraft's pilot in command is unknown, the FAA will
typically contact the registered owner of the aircraft by sending
a certified letter. Among other things, the letter states that the
FAA is investigating whether a violation of the FARs occurred
and requests that the owner provide the contact information for
the pilot. Additionally, the letter warns, " [i]f we do not obtain
this information, and the investigation results in an enforcement
action, the enforcement action could be placed on the registered
owner of the aircraft in the form of a civil penalty. "
If an owner does not respond or divulge the requested information,
the FAA can pursue a civil penalty against the owner. In
a recent, factually similar case, the owner of a Cessna 172 was
ordered to pay a $2,450 civil penalty after the aircraft entered
Atlantic City International Airport Class C airspace without establishing
two-way radio communications with ATC in violation of
FAR 91.130(c)(1). The outcome arises from the FAA's broad definition
of the term " operate. " According to the FAA, the definition
of " operate " in 49 USC 40102(a)(35) and in FAR 1.1 is construed
such that an owner is presumed to be " operating " the aircraft even
when it is clear that the aircraft was piloted by someone else.
A 1996 case involving near-midair-collisions was the first to
affirm this position, concluding that " the statutory definition of
the term 'operate' indicates that [the aircraft owner] 'operated'
the aircraft, because the pilot had permission to use the aircraft. "
Further, " [n]either the statutory nor the regulatory definition of
the term 'operate' contains any language indicating that in order
to have 'operated' an aircraft, a person must have authorized the
pilot's particular use or manner of use of the aircraft. "
28
AOPA PILOT / May 2022
Accordingly, in the absence of evidence to the contrary, the aircraft
owner is presumed to be " operating " the aircraft and may be
held responsible for any violation of the FARs-even if the pilot
was operating the aircraft inconsistent with the owner's authorization.
It is the owner's burden to prove the presumption false by
demonstrating that the aircraft was utilized without permission.
Even in the presence of a lease that transfers operational control
of the aircraft to another party (i.e., a dry lease), there might not be
enough to overcome this presumption since the statutory and regulatory
definitions of " operate " effectively disregard who has the
legal control over the aircraft. Consider, however, that in Advisory
Circular 91-37B the FAA states, " when you dry lease an aircraft for
your use, you normally become the aircraft operator. "
When the FAA pursues a civil penalty against the owner, it does
so under a different set of rules than those that apply to airman certificate
actions against a pilot. Rather than an appeal to an NTSB
administrative law judge (ALJ), an owner assessed a civil penalty
may appeal to an ALJ in the Office of Hearings, which is part of the
United States Department of Transportation. The FAA, it should be
noted, is also part of the DOT. If this arrangement does not invite
questions about impartiality, then consider that if an owner elects
to appeal the initial decision of one of these ALJs, the FAA administrator
hears the matter while serving in the role of " decisionmaker. "
Arguably, other differences stack the odds even further
against an owner. For example, the FAA has two years to initiate
civil penalty proceedings against the aircraft owner, where
it would typically have six months to initiate certificate action
against the pilot. Additionally, where the Pilot's Bill of Rights
grants pilots the right to remain silent during investigations concerning
possible certificate actions, the PBR is not applicable to
civil penalty actions against aircraft owners.
Be wary whom you permit to use your aircraft, because owning
is presumed to be operating. If the pilot violates any FARs
and you do not play ball with the FAA, you could be on the hook.
Although such an amount is rare, the sanction you face could be
more than $14,000 for each
violation depending on the
type and severity.
ian.arendt@aopa.org
aopa.org/pps
IAN ARENDT is an in-house
attorney with the AOPA Legal
Services Plan.
http://www.aopa.org/pps
AOPA Turbine Pilot Magazine - May 2022

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