AOPA Pilot Magazine - November 2011 - 34

PILOTCOUNSEL

BY JOHN S. YODICE
AOPA SECRETARY

A

Private vs. commercial operations

t AOPA’s Aviation Summit in Hartford, Connecticut, I was reminded that general aviation pilots still wrestle with who and what they can

What was discussed at Summit was the part of the rule that allows a pilot, for compensation or hire, to act as pilot in command of an aircraft in connection with any business or employment if “the flight is only incidental to that business or employment” and “the aircraft does not carry passengers or property for compensation or hire.” Everyone understood that FAR 61.113 covers the pilot businessman and employee. But many balked at the FAA position that the pilot businessman/employee legally carry in their aircraft without running afoul may not legally transport employees, customers, or of the commercial regulations. The question that other passengers in connection with that business John S. Yodice or employment. caused the most consternation was whether a pilot is a private pilot flying incidental to his/her business or employment Unfortunately, the FAA chief counsel interpretawho owns a could legally carry other employees, customers, or tion supports the FAA position. The interpretation Cessna 310. passengers in connection with that business or addresses the scenario of a director of vehicle testing (not related to air transportation) who on employment. There is a relatively recent interpreoccasion uses his aircraft, a Bellanca Super Viking, for transtation by the FAA Chief Counsel (2009-7) on that point. Pilots understand that there is an important regulatory dif- portation to business meetings. The questions addressed were ference between “private” and “commercial” operations. The whether the director could be reimbursed for the cost of this FAA regulates both for safety, but commercial operators have transportation, and to what extent he may be reimbursed if he additional costly and burdensome regulation beyond the gen- also transports coworkers to these business meetings. eral operating and flight rules of FAR Part 91, and other rules. The FAA chief counsel opined that where the director only We all can easily recognize the classic private operation, which transported himself to the business meeting, the director may, is a pilot flying his or her own aircraft (or a rented or borrowed under the “incidental” part of the rule, be compensated for the aircraft) for his or her own purposes, specifically including car- expense of the flight. That is the positive part of the interprerying passengers. This is classically one within the privileges of tation. But the chief counsel, in considerably narrowing the a private pilot certificate (and may also be conducted by com- interpretation, opined that the rule would not allow the director mercial and ATP pilots exercising the lesser “private” privileges to seek reimbursement from his employer for transporting his implicitly included in their certificates). At the other end of the colleagues to the meeting. According to the chief counsel, the spectrum, we easily recognize the classic commercial opera- rule only allows the director to use his private pilot certificate tion such as those conducted by the airlines, air taxi operators, for compensation or hire if the operation is incidental to the charter, et cetera, by those engaged in the business of carrying director’s employment and only if the director is not transportpersons or property for compensation or hire. ing other passengers or property. Thus, because the director is It is the gray area in between private and commercial oper- transporting people to the meeting, he may not seek reimburseations that raises many questions. FAR 61.113 provides the ment from his employer for this flight. general rule that “no person who holds a private pilot certifiThe interpretation says the “shared expense” would not apply cate may act as pilot in command of an aircraft that is carrying because it only allows reimbursement from fellow passengers, passengers or property for compensation or hire; nor may that not a third party, such as the employer. “You [the director] may person, for compensation or hire, act as pilot in command.” only seek reimbursement for the operating expense of the flight The rule then goes on to permit some operations that might from your passengers, provided you pay your own pro rata share otherwise be considered commercial operations. Some familiar of the operating expenses, and you all share a common purpose, examples: A private pilot (or a commercial/ATP pilot exercising such as attending the business meeting.” private privileges) may, under limited circumstances, share the I could agree with the interpretation if the sole reason the pilot expenses of a flight with his passengers (the pilot is technically was going on the trip was to transport his colleagues, and not for receiving compensation even though it is only the passengers’ his own business or employment purpose in attending the meetpro rata share of direct operating costs). A private pilot may ing. Otherwise, I respectfully disagree. The pilot is only being carry passengers in a charitable airlift that technically involves reimbursed for the cost of his carriage. Carrying his colleagues “compensation or hire,” but to the benefit of the charity. Simi- does not add to the cost of the trip. I believe a more reasonable larly, within the specific terms of the rule, search and location interpretation is that the colleagues are not being carried “for operations are permitted, as are the flights of an aircraft sales- compensation or hire” on this common-business-purpose flight, man, and towing a glider or ultralight. and the “incidental” exception should apply. 34 • NOVEMBER
2011

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AOPA Pilot Magazine - November 2011

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