Even when operating for charity in a flight in which the pilot accepts no pay...it still won't wash:
March 8, 1993
The Honorable Phil Gramm
This is in further response to your letter on behalf of your constituent Mr. Robert Bean concerning the Federal Aviation Administration (FAA) and the National Transportation Safety Board (NTSB) interpretation of Section 61.118 of the Federal Aviation Regulations (FAR).
Section 61.118 states, in pertinent part, that a private pilot may not act as a pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may a private pilot, for compensation or hire, act as pilot in command of an aircraft, even when the transportation of passengers or property is not involved. The NTSB has held that compensation or hire exists where a private pilot receives reimbursement of expenses or takes a tax deduction for voluntarily carrying persons or property on flights. The NTSB ruled such flights to be in violation of Section 61.118. The FAA argued for this interpretation and agrees with the NTSB decision.
Private pilots making volunteer air flights involving the carriage of persons or property are in violation of Section 61.118 if they receive any reimbursement of expenses or take any tax deductions for those flights. In addition, if the operator of the aircraft does not have an FAA operating certificate, carriage of persons or property for compensation or hire is also a violation of Part 121 or 135 of the FAR. On the other hand, if the flights conducted by Angel Flight do not involve compensation or hire, as that phrase has been interpreted by the FAA and the NTSB, then neither Angel Flight nor the pilots involved would be in violation of Section 61.118, Part 121, or Part 135.
In the past, the FAA has issued exemptions from Section 61.118 to allow for reimbursement of fuel, oil, and maintenance costs when incurred in the performance of official search activities. Under these exemptions, official search activities cannot include the carriage of persons or property, which would require an exemption from Part 121 or 135. Angel Flight may qualify for an exemption from Section 61.118, and thus its members could be reimbursed for fuel, oil, and maintenance costs for official search activities.
Such an exemption would not permit the transportation of persons or property for compensation or hire, since Angel Flight would have to have the appropriate air carrier operating certificate or commercial operating certificate. Parts 135 and 121 govern the transportation of persons or property for compensation or hire. People or entities that hold themselves out to the public to provide transportation by air of persons or property for compensation or hire are considered "air carriers." If they do not advertise or otherwise hold themselves out to the public, they are considered commercial operators. It has never been the policy of the FAA to allow people to act as air carriers or commercial operators without an FAA air carrier operating certificate or FAA commercial operating certificate. In order to obtain such a certificate, one must meet the additional safety requirements in Parts 121 or 135.
I hope the above information will assist you in responding to your constituent.
Sincerely,
John H. Cassady
Acting Chief Counsel
Even the federal government is subject to the provisions of limitations regarding compensation and hire...even when operating public use aircraft, carrying public personnel. This is an important point to consider when remembering that public use aircraft are exempt from most of the regulation...and even they are not exempt from compensation issues. How much chance do you think a private pilot accepting compensation as a commercial corporate pilot has? (Hint: zero).
February 1, 1995
John R. Prukop Chief Pilot
Oregon Department of Forestry
2600 State Street Salem, OR 97310
Dear Mr. Prukop:
This is in response to your letter of January 3, 1995, requesting an opinion with respect to operation of public aircraft. You state that the Oregon State Department of Forestry owns and operates two twin-engine aircraft in support of its agency mission. It also makes the aircraft available to other state agencies for personnel transportation, such as the State Police, Department of Fish and Wildlife, Department of Justice, and Department of Transportation. These agencies are billed at the same hourly rate, which the Forestry Department users pay internally. Funds are electronically transferred to Forestry's receivable account. You question whether this arrangement might jeopardize the "public aircraft" character of the aircraft.
A recent amendment to Title 49 of the U.S. Code (P.L. 103-411, Section 3) amended the definition of "public aircraft" to exclude government-owned aircraft transporting passengers (other than crewmembers) unless their presence on the aircraft is required to perform, or associated with the performance of a governmental function such as firefighting, search and rescue, law enforcement, aeronautical research, or biological or geological resource management. This amendment, which becomes effective April 25, 1995, would require that the personnel transportation operations conducted by the Department of Forestry, both for itself and for other units of the state government, be conducted under Part 91 of the Federal Aviation Regulations.
In my opinion, the reimbursement for the use of Forestry aircraft by other state agencies would not constitute a commercial use of the aircraft, which would require that operations be conducted under the provisions of Part 135.
Such use would not be a commercial use because the aircraft could be used by agencies of the same political entity--the State of Oregon--and the funds which are electronically transferred originate with the same source, the state treasury. The state is merely providing transportation services to itself--the electronic funds transfer constituting a reallocation of funds within the same overall state budget.
You also indicate that on other occasions, state fire control personnel are flown on these aircraft to other states for wildfire control on state, federal, and private lands. The aircraft pool internally charges the fire protection division and that division may or may not share the expense for such flights with state or federal agencies involved in a cooperative fire control effort.
While the internal billing of flight operations within the state government of Oregon would not constitute commercial activity, the receipt of payment by the state of Oregon for any share of flight operations from any other governmental entity, local or federal, would constitute a commercial operation, absent a formal timesharing, interchange, or joint ownership agreement under 14 C.F.R. 91.501(b)(6). The provision of the Federal Aviation Regulations allowing for the sharing of flight expenses is limited to that of a private pilot sharing the operating expenses of a flight with his passengers. It would not permit the state of Oregon to accept payment from other governmental agencies for their "share" of the operating costs of the flight under Part 91. This would be true even if the payment were to be received by an agency of the state which did not, itself, provide the air transportation since we would consider the state to be the operator of the aircraft.
A limited exception to this general principle was created in P.L. 103-411, Sec 3. This legislation allows an aircraft to be operated on behalf of another unit of government pursuant to a cost reimbursement agreement if the using agency certifies to the Administrator of the FAA that the particular operation was necessary to respond to a significant and imminent threat to life, property, or natural resources and that no service by a private operator was reasonably available to meet the threat.
Sincerely,
George L. Thompson
Assistant Chief Counsel
The FAA's policy regarding foreign pilot certificates, member states, and the EU:
November 14, 2004
Mr. Raymond C. Speciale 3617 Byron Circle Frederick, MD 21704
Re: Application of 14 CFR § 61.3(a)(1) Dear Mr. Speciale:
This letter responds to your August 17, 2004, request for interpretation of 14 CFR § 61.3(a). You present the following facts: A client holds a commercial pilot certificate issued by the Kingdom of Belgium. On the face of the license there is a statement indicating that it is a "Kingdom of Belgium, Joint Aviation Authorities, Flight Crew License." Your client does not hold a U.S.-issued pilot certificate and operates a U.S.-registered civil aircraft in accord with the Federal regulations. The question presented is whether under 14 CFR §61.3(a), the pilot is permitted to operate a U.S.-registered aircraft in any foreign country in which his Belgian/JAA pilot license is recognized. As explained below, the Federal regulations under Title 14 of the Code of Federal Regulations (14 CFR) and the U.S. obligations under Article 1 of the 1944 Convention on International Civil Aviation (the Chicago Convention)' do not permit such action.
Section 61.3(a) (1) of the Federal regulations states "when [an] aircraft is operated within a foreign country, a current pilot license issued by the country in which the aircraft is operated may be used." A strict reading of the rule requires that the country of issuance of the pilot's license match the country in which the aircraft is operated. The FAA, through an interpretation, cannot extend the meaning of "country" under § 61.3 to include JAA member States. Additionally, Article 32a of The Chicago Convention requires that a pilot license match the state of registration of the aircraft, unless a validation is made. The FAA made a
The Chicago Convention is the basic multilateral international convention on civil aviation and was entered into force on April 4, 1947. Convention on International Civil Aviation, December 7, 1944.; 61 Stat. 1180 T.I.A.S. No. 1591, 15 U.N.T.S. 295 (amended several times since enactment).
specific grant of validation respecting the Belgian license whereby a U.S.-registered aircraft may only be flown within Belgium by a Belgian licensed pilot. No JAA agreement can extend that specific validation.
We trust this letter responds to your inquiry. Should you have additional questions, please do not hesitate to contact us.
Sincerely,
Rebecca B. MacPherson
Assistant Chief Counsel for Regulations
While the codification (numerical reference) of the regulation has been altered since the following Legal Interpretation was issued, the ruling is still applicable and defensible; it still holds the same authority and the point remains unchanged:
October 29, 1992
Mr. Jon S. Gorski
First Security Building
911 West Idaho P.O. Box 829
Boise, ID 83701
Dear Mr. Gorski:
This is in response to your letter of September 18, 1992, to the FAA Salt Lake City Flight Standards District Office.
Your letter states that the First Security Bank of Idaho North America (FSB) owns and operates a Cessna 425. The aircraft is used to transport financial documents from FSB Idaho branches to Salt Lake City for processing. On the return trip from Salt Lake City to Boise, Idaho, there is extra cargo space unutilized. FSB would like to use this space to carry the same type of cargo for another financial institution. The other financial institution would share operating expenses on a pro rata basis, and FSB would like to conduct the return flight under Part 91 of the Federal Aviation Regulations (FAR), specifically using the "cost sharing" authority of Section 61.118 of the FAR's.
In the company's perspective, it obviously makes more economic sense to fly the back haul with a loaded aircraft than with an empty one. Section 61.118 of the Federal Aviation Regulations, however, will not support this objective. That section simply permits a private pilot to share the expenses of a flight with a passenger. It provides no authority for an institution to carry the property of another for any payment.
I have also reviewed the provisions of 14 CFR Part 91 Subpart F (which may be applicable to aircraft such as the Cessna 425, under an exemption) to determine whether any of the operations permitted under Section 91.501(b)(1)(9) may cover your client's situation.
Initially, it would appear that 91.501(b)(6) might have some application if a timesharing agreement or interchange agreement for the use of the aircraft existed between the two companies. However, it seems that carriage would have to be limited to people--company officials, employees, and clients--rather than property and, therefore, it would not accomplish your client's objective.
Section 901.501(b)(7), on the other hand, does address the carriage of property. Such carriage, however, is limited to that within the scope of, and incidental to, the company's primary business [where that business is other than transportation by air]. I do not believe that the carriage of another financial company's cargo from Salt Lake City to Boise could fairly be said to fall within the scope of FSB's banking business. Therefore, it appears that this alternative, also, is not applicable.
I regret that my advice cannot be more encouraging on this issue.
Sincerely,
George L. Thompson
Assistant Chief Counsel