The Right to Self-service Aircraft
By Jeff Wagner, Shareholder
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
As a condition to receipt of a grant from the Federal Aviation Administration (FAA) under the Airport Improvement Program, each airport operator and sponsor is required to execute Grant Assurances that affect a number of different aspects of airport governance and operations. Grant Assurance 22 (Economic Non-discrimination) includes nine different assurances that the airport operator and sponsor must make to ensure that the airport remains open to the public on nondiscriminatory terms. Included as part of the Economic Non-discrimination assurances is an agreement that:
[The airport] will not exercise or grant any right or privilege which operates to prevent any person, firm, or corporation operating aircraft on the airport from performing any services on its own aircraft with its own employees [including, but not limited to maintenance, repair, and fueling] that it may choose to perform.
The obligation to allow an owner to self-maintain or self-fuel his, her or its own aircraft is, unfortunately, often misunderstood by both airport operators and aircraft owners.
On the airport operator side, the airport cannot require users of the airport to use a specified fixed-base operator (including the airport operator if it is filling that role) for aircraft maintenance or fueling. The airport may, however, specify that maintenance or fueling services may only be performed by the owner or by the owner’s bona-fide employees if not performed by an authorized on-airport operator. An aircraft owner is not free to “employ” anyone to work on the owner’s aircraft, though. An aircraft owner hiring “Fred’s Aircraft Service” to come to the airport to service its aircraft does not create the requisite employer-employee relationship. It must be a true employer-employee relationship.
The airport operator may also impose “reasonable” rules and regulations on self-servicing of aircraft. For example, an airport operator may require the solvents and other flammable or potentially hazardous materials be properly handled so as not to create a risk to the airport or to the operator. Likewise, the operator may require that certain services (e.g., aircraft painting) only be performed in certain areas that minimize risk to the aircraft owner, the airport and the environment.
Although an airport must allow an aircraft owner to fuel its own aircraft, the airport operator may place limitations on how the owner acquires its fuel in addition to imposing reasonable safety requirements on fueling operations. For example, an airport operator is not obligated to allow fuel deliveries to an aircraft owner by an off-airport fuel supplier. Further, the airport operator may require the aircraft owner to pay the same fuel flowage fee that is paid by fixed base operators or others providing fueling services at the airport.
Due to the growth in popularity of fractional ownership of aircraft, the FAA has had to make certain exceptions for companies engaged in management of fractional ownership arrangements. Even though the management company may not be the actual owner of the aircraft, the FAA considers the manager of a fractional ownership arrangement operating under 14 CFR Part 91 to be the “owner” for purposes of self-servicing, including self-fueling.
Additional information on the obligation to allow self-servicing is available in Chapter 11 of the Airport Compliance Manual, FAA Order 5190.6B.
.Jeff Wagner is a shareholder in the Jackson, Mississippi, office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., and may be reached at 601-973-3610 or by email at [email protected]