Another "Does This Require a Commercial Pilot?" Thread

[poadeleted20]

Can you provide any possible scenario that a turnip farmer could use his own airplane in the furtherance of his turnip farm?

I already did.

It looks like there is zero acceptable uses of a plane for a turnip farmer other than weekend travel to hamburgers.

If you really think that, I won't argue with you.

 

[poadeleted20]

This guy's computer, paint brushes, and toolbox are acceptable,

The FAA has never said otherwise, and I'm bloody well not asking them that question specifically when I don't think I could stand the answer. My feel based on all these interpretations is you can take with you only that you'll take home.

but I can't go fetch a part for a turnip harvester?

That's how I read Mangiamele. But if you really need a reliable answer, write to the Chief Counsel with that specific question.

 

[JoseCuervo]

That's not true. Read Mangiamele -- you can certainly fly yourself around to get to places you need to be for the job. But that's about it.

True.

Not true. The travel to the meeting is incidental to attending the meeting. However, you can't take anyone with you.

Now you're just being silly.

Only if you insist on being obtuse.

Thanks for your answers.

"incidental" is probably the word I am struggling with.

If I were to fly 150 miles and teach a Turnip Soup Cooking Class, and bring 25lbs of my fresh turnips, then the travel would be incidental to my "job" of teaching the class and the 25lbs of turnips would also be incidental to the teaching the class, just like my whiteboard, dry erase markers, and handouts.

 

[poadeleted20]

Thanks for your answers.

Happy to help.

"incidental" is probably the word I am struggling with.

It appears to be a struggle for most people, but the key is differentiating between what is "a foreseeable and normal part of the business" (like moving product to market) and what is something you'd do on the job but is not the job itself (like moving yourself to a business meeting, even if the meeting itself is "a foreseeable and normal part of the business").

If I were to fly 150 miles and teach a Turnip Soup Cooking Class, and bring 25lbs of my fresh turnips, then the travel would be incidental to my "job" of teaching the class and the 25lbs of turnips would also be incidental to the teaching the class, just like my whiteboard, dry erase markers, and handouts.

I think it would be (as long as you don't sell the turnips to the attendees), but the FAA has never specifically addressed that question, and I don't think it's a question I'd care to ask them for fear of another Mangiamele debacle. As R&W pointed out, no FAA Inspector is going to be out there checking to see if you're carrying the tools of your trade as "property for compensation or hire", so why start a problem with that?

Or just go get your CP and stop worrying about it.

 

[Gucci Pilot]

That's not true. Read Mangiamele -- you can certainly fly yourself around to get to places you need to be for the job. But that's about it.

Didn't you say they could justify free flight time as compensation? In that respect...I see no way any private pilot could fly anything that is "incidental" to a business.

 

[Henning]

By your interpretation, Amalgamated Widget would need a 135 to haul its executives around in its own planes, and we know that's not true. However, by Mangiamele, Amalgamated's pilots do need CP tickets. Go back and do some research on "incidental" versus ""foreseeable and normal part of the business."

The CP is hired as a pilot in your example. The business owner and owner of the urnips is the pilot. He is transporting personal property. Your interpretation says a PP can't haul a birthday cake in their plane either.

 

[poadeleted20]

Didn't you say they could justify free flight time as compensation? In that respect...I see no way any private pilot could fly anything that is "incidental" to a business.

You may not, but the FAA says it's OK within certain limits discussed in the Mangiamele letter. See 14 CFR 61.113:

(b) A private pilot may, for compensation or hire, act as pilot in command of an aircraft in connection with any business or employment if:
(1) The flight is only incidental to that business or employment; and
(2) The aircraft does not carry passengers or property for compensation or hire.

Again, you have to separate "incidental" as the FAA defines it (search that web site on that term) versus "a foreseeable and normal part of the business".

 

[poadeleted20]

The CP is hired as a pilot in your example. The business owner and owner of the urnips is the pilot. He is transporting personal property.

No, he is transporting the property of the business. The fact that he owns the business isn't relevant.

Your interpretation says a PP can't haul a birthday cake in their plane either.

Correct -- if the PP is getting paid and is going to sell that cake. But if I'm hauling the cake in my own plane at my own expense to give to my niece for her birthday, then there's no compensation involved and 61.113 isn't an issue. The difference is that Jose and/or his business is getting compensated in one way or another by his customer with whom he has a business relationship for delivering those turnips, while the FAA doesn't see the affection of my niece as an issue.

 

[JasonM]

It is quite ridiculous how strict the CP rules are at times. I do respect those that have earned it, just don't think personally if you are not hauling paid freight for other people or people for money that anything else should really matter.

On another note, how are these guys on youtube allowed to profit from making videos without a CP? Ran across this kid making videos and looking for money. Kinda falls in the same lines of getting compensation for flying. https://www.patreon.com/mraviation101

 

[poadeleted20]

It is quite ridiculous how strict the CP rules are at times. I do respect those that have earned it, just don't think personally if you are not hauling paid freight for other people or people for money that anything else should really matter.

You're entitled to that opinion, and if you really think it should be that way, you can petition the FAA to change the rules accordingly. See Part 11 for how to file a petition for rulemaking. But the FAA is very hardover on the implementation of its Congressional mandate to establish higher levels of safety whenever money is changing hands, and their past trend is more towards tightening rather than loosening safety-related restrictions on what PP's can do when compensation of any recognizable form is involved.

On another note, how are these guys on youtube allowed to profit from making videos without a CP? Ran across this kid making videos and looking for money. Kinda falls in the same lines of getting compensation for flying. https://www.patreon.com/mraviation101

I've not examined the video, but it may well not be legal. However, the FAA doesn't have the resources or interest to cruise YouTube looking for violations, so there are quite a few videos out there which very neatly document major regulatory violations. As long as nobody wrecks and nobody gets hurt and nobody complains, the FAA isn't going to get involved.

 

[N801BH]

It is quite ridiculous how strict the CP rules are at times. I do respect those that have earned it, just don't think personally if you are not hauling paid freight for other people or people for money that anything else should really matter.

On another note, how are these guys on youtube allowed to profit from making videos without a CP? Ran across this kid making videos and looking for money. Kinda falls in the same lines of getting compensation for flying. https://www.patreon.com/mraviation101

Which brings up a topic I wonder about ...

Jackson is home to several "extreme" video production groups, either skiing /snowboarding, or snowmobiling and even rock climbing.. A few times a year I have people contact me to see if I would bolt on their fancy gyro stabilized camera and shoot some footage for them... The question of being a CP always comes up and even though I am in the plane by myself and just happen to get some video of a guy launching off a cliff on his skis/snowboard/snowmobile seems to put me in "no mans land"..

Some of these groups have claimed they checked with their "people" and I have heard 50 different answers...

The most common one is I need to join the SAG and pay union dues which I find bizarre ,, but probably true....

Next is the CP conversation comes up and I cannot get a clear grasp if that applies no matter who I ask... And once that is all addressed the word "EXPERIMENTAL" rears it's ugly head and that alone would probably derail any filming work.....

Comments anyone ????

 

[JoseCuervo]

No, he is transporting the property of the business. The fact that he owns the business isn't relevant.
Correct -- if the PP is getting paid and is going to sell that cake. But if I'm hauling the cake in my own plane at my own expense to give to my niece for her birthday, then there's no compensation involved and 61.113 isn't an issue. The difference is that Jose and/or his business is getting compensated in one way or another by his customer with whom he has a business relationship for delivering those turnips, while the FAA doesn't see the affection of my niece as an issue.

If I start teaching the Turnip Soup Cooking Class, and use recipes from my best-selling cookbook, "101 Uses of Turnips You Never Donsidered" and make my cooking students by the book for $19.95, including signature on the title page, by me, can I haul the books to my next scheduled cooking class?

Does it change, in the FAA's view, if I just include the book for "free" in the $149 registration fee for the class?

 

[poadeleted20]

Which brings up a topic I wonder about ...

Jackson is home to several "extreme" video production groups, either skiing /snowboarding, or snowmobiling and even rock climbing.. A few times a year I have people contact me to see if I would bolt on their fancy gyro stabilized camera and shoot some footage for them... The question of being a CP always comes up and even though I am in the plane by myself and just happen to get some video of a guy launching off a cliff on his skis/snowboard/snowmobile seems to put me in "no mans land"..

Some of these groups have claimed they checked with their "people" and I have heard 50 different answers...

The most common one is I need to join the SAG and pay union dues which I find bizarre ,, but probably true....

Next is the CP conversation comes up and I cannot get a clear grasp if that applies no matter who I ask... And once that is all addressed the word "EXPERIMENTAL" rears it's ugly head and that alone would probably derail any filming work.....

Comments anyone ????

Depends on whether you're getting any compensation, including whether you have any business relationship with those folks from which you could reap "goodwill" even if you don't actually get paid. If so, you'll need a CP ticket. And, of course, there's the issue of bolting that camera onto your plane, which would be an alteration to be addressed IAW Part 43.

See the following interpretations:

http://www.faa.gov/about/office_org.../2010/perry - (2010) legal interpretation.pdf regarding PP vs CP

http://www.faa.gov/about/office_org.../1995/white - (1995) legal interpretation.pdf and http://www.faa.gov/about/office_org...helicopters - (2007) legal interpretation.pdf regarding 91 vs 135.

And you seem to know already that you cannot use an E-AB aircraft if there's business/compensation involved. You would also need to make sure this is an acceptable use under your insurance policy.

 

[poadeleted20]

If I start teaching the Turnip Soup Cooking Class, and use recipes from my best-selling cookbook, "101 Uses of Turnips You Never Donsidered" and make my cooking students by the book for $19.95, including signature on the title page, by me, can I haul the books to my next scheduled cooking class?

I think the FAA would say "no".

Does it change, in the FAA's view, if I just include the book for "free" in the $149 registration fee for the class?

Beats me.

 

[JoseCuervo]

Interestingly, I went looking for "incidental" and "FAA" and came across a letter to the County of San Bernadino where their employees wanted to fly foster kids as part of their "incidental" job duties.

September 8, 1977

Mr. Harry M. Mays

Dear Mr. Mays:

This is in reply to your letter of October 8, 1976, requesting an opinion as to the legal permissibility, under the Federal Aviation Regulations (FAR), of allowing private pilots to transport juvenile wards of San Bernardino County.

By way of background, you have stated that the County Probation Department currently employs a number of persons who possess private pilot certificates. The department places a number of juveniles in foster homes which are many hours during time from your central San Bernardino facility. You wish to allow persons possessing private pilot certificates to transport those juveniles by air. As we understand the facts, the aircraft used would be rented on a per trip basis. Aircraft operation is not part of the pilot's job description, nor a condition of employment or advancement. The pilot would not be compensated over and above his usual salary. The county would pay for the aircraft rental charges.

We will answer your questions in the order which they have been presented:

1. "Is it legal for the department to use personnel with pilot's licenses to transport juvenile wards?" The privileges and limitations of a private pilot certificate are found in Title 14, Code of Federal Regulations (CFR), Section 61.118. The basic rules announced therein states that "a private pilot may not act as pilot in command of an aircraft that is carrying passengers for compensation or hire, act as pilot in command of an aircraft." Subsection (a) of the regulations, however, does allow a private 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 employment or business and the aircraft does not carry passengers for compensation or hire.

So long as there is no compensation paid by or for the passengers, or received by the pilot, for the flight, a private pilot may carry passengers provided that the flight is only incident to employment. Whether a flight is merely incident to employment or a necessary or major part of his job requires a qualitative judgment based upon a number of factors including, but not limited to, the following:

a. Is the piloting of an aircraft a condition of employment or advancement; or a part of his job description? If so, flights would not be "incident" to employment.

b. Is the pilot compensated, over and above his normal income, for operating an aircraft? If so, the operation of the aircraft is not merely "incidental" to his work.

c. How much of the pilot's work time is spent operating an aircraft? The greater the amount of time, the less the operations are "incident" to employment.

2. Is there any restriction as to the distance persons can be transported? There is no distance restriction.

3. Could a person possessing a commercial license perform these duties? If so, would there be any restrictions? A commercial pilot may carry persons or property for compensation or hire, and may act as pilot in command of an aircraft for compensation or hire, as stated in FAR 61.139 (14 CFR 61.139). If the pilots are not already employees of the Probation Department and are hired as independent contractors for the purpose of providing a transportation service, the requirements of FAR Part (135 Air Taxi/Commercial Operator) apply. These persons would not be considered as executive, or business aviation pilots engaged in Part 91 operation.

Sincerely,

DEWITTE T. LAWSON, JR.
Regional Counsel

Delivering kids or delivering turnips is different?

 

[JoseCuervo]

So, as a Turnip Farmer, I am required to go to the Pickling and Processing Plant every year to sign my new contract. I get to go on a tour of the Pickling line, have lunch in the fancy conference room with them styrofoam containers of Eye-Talian Food from the Olive Garden, and then return home for the evening.

I am thinking I am good to fly to the meeting, as the flight is incidental to the business of growing and selling, via contract, of my Turnips.

But, just out of being a good neighbor, can I offer to let the Radish Farmer across the highway ride along with me? He is required to also go sign his contract at the Pickling and Processing Plant. I won't charge him anything, I won't ask him to share any expenses, as, let's be honest, Radish Farmers don't make nearly as much money as Turnip Farmers, so I wouldn't collect anything from him even if I wanted.

He is good people, he would do anything for you, if he could.

 

[Checkout_my_Six]

just so ya don't go inviting the carrot farmer down the street.....those ones are a batty mess.

 

[JoseCuervo]

just so ya don't go inviting the carrot farmer down the street.....those ones are a batty mess.

Interestingly enough, if you knew anything about the Carrot Farmer down the street's daughters, well, let's just say that is another story.

But, the Carrot Farmer does have one daughter that is attending the University in the same town as the Pickle and Processing Plant. Can I offer to let her ride back from the airport near the Pickle and Processing Plant for free?

So, when I fly over for my trip to sign my Turnip contract at the Pickle and Processing Plant with the Radish Farmer, can I haul the Carrot Farmer's daughter back?

 

[nosehair]

No, he is transporting the property of the business. The fact that he owns the business isn't relevant.

The fact that he owns the turnips is all about the relevancy.
He is not being paid to fly someone else's property.
Compensation for flying cargo means someone else's cargo, not your own.
Having said that, if there is a contract worded such that the turnips are already
bought, and the pilot is being compensated to fly them to market, then he would need a CPC & a 135 certificate.

 

[poadeleted20]

The fact that he owns the turnips is all about the relevancy.
He is not being paid to fly someone else's property.
Compensation for flying cargo means someone else's cargo, not your own.

He is not the business even if he owns the business. But either way, the regulation says "passengers or property for compensation or hire", not "passengers or property of another for compensation or hire". And he is being compensated in one way or another for transporting the turnips even if nobody's paying him cash money to pilot the plane.

Having said that, if there is a contract worded such that the turnips are already bought, and the pilot is being compensated to fly them to market, then he would need a CPC & a 135 certificate.

That sounds right to me.

 

[Henning]

No, he is transporting the property of the business. The fact that he owns the business isn't relevant.
Correct -- if the PP is getting paid and is going to sell that cake. But if I'm hauling the cake in my own plane at my own expense to give to my niece for her birthday, then there's no compensation involved and 61.113 isn't an issue. The difference is that Jose and/or his business is getting compensated in one way or another by his customer with whom he has a business relationship for delivering those turnips, while the FAA doesn't see the affection of my niece as an issue.

Lol, you've never been a farmer have you. Whatever you want to believe, when you are the sole proprietor of a farm business, it all runs through you personally anyway. You're stupid if you set it up any other way, because with a Schedule F, you'll never pay taxes unless you are in a position of making cubic money. The turnip farmer who is flying his crop in his Cherokee 6 I guarantee you is not in that bracket.

 

[poadeleted20]

Lol, you've never been a farmer have you. Whatever you want to believe, when you are the sole proprietor of a farm business, it all runs through you personally anyway. You're stupid if you set it up any other way, because with a Schedule F, you'll never pay taxes unless you are in a position of making cubic money. The turnip farmer who is flying his crop in his Cherokee 6 I guarantee you is not in that bracket.

Still doesn't change things -- you're transporting property for compensation, even if it's your business' property.

 

[JoseCuervo]

Lol, you've never been a farmer have you. Whatever you want to believe, when you are the sole proprietor of a farm business, it all runs through you personally anyway. You're stupid if you set it up any other way, because with a Schedule F, you'll never pay taxes unless you are in a position of making cubic money. The turnip farmer who is flying his crop in his Cherokee 6 I guarantee you is not in that bracket.

That is where I struggle with the compensation-thing.

There is no compensation, per the FAR, I don't get paid extra to make the flight, "flight time" is of no value to me, and, costs money out of one of my pockets.

Essentially, 24 hours a day, I am being compensated, or not, incidental to flying the plane or digging turnips. I can't figure out a "flight time" argument that would not get laughed at by all the attorneys in the room. Hell, I forget to log many of my flights.


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[JoseCuervo]

Still doesn't change things -- you're transporting property for compensation, even if it's your business' property.

Are all the compensation decisions : letters from examples where it was an employee or someone else sharing the costs? Has there ever been an applicable decision on someone who owned the business, plane, and all contents?

How is my Saturday joyride flight not "compensation" in the form of free flight time by my money clip in my left pocket?


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[Greg Bockelman]

And he is being compensated in one way or another for transporting the turnips even if nobody's paying him cash money to pilot the plane.

That interpretation by the FAA is absurd, IMO.

 

[Greg Bockelman]

Still doesn't change things -- you're transporting property for compensation, even if it's your business' property.

That interpretation, official as it may be, is total and utter BS, IMO.

 

[PPC1052]

That interpretation by the FAA is absurd, IMO.

In fairness, that Ron's interpretation; not the FAA's. I am aware of no opinion or letter that is directly on point in this case. That's not to say the FAA won't agree, though.

 

[poadeleted20]

In fairness, that Ron's interpretation; not the FAA's. I am aware of no opinion or letter that is directly on point in this case.

Concur. However, having read a ton of interpretations on 61.113, and seeing a definite trend towards increasing strictness...

That's not to say the FAA won't agree, though.

...I'm pretty sure that if asked, the FAA Chief Counsel would say a turnip farmer needs a CP ticket to pilot his/her airplane to haul his/her turnips to market. You just can't tell me the farmer isn't receiving compensation unless s/he's giving the turnips away.

 

[JoseCuervo]

Concur. However, having read a ton of interpretations on 61.113, and seeing a definite trend towards increasing strictness...

...I'm pretty sure that if asked, the FAA Chief Counsel would say a turnip farmer needs a CP ticket to pilot his/her airplane to haul his/her turnips to market. You just can't tell me the farmer isn't receiving compensation unless s/he's giving the turnips away.

Does the San Bernadino letter carry any weight, or has it been superseded?

It seems like an obvious need for a Commercial, but their opinion provides otherwise.

Maybe I did fall off a Turnip truck last night....

 

[Hank S]

In a nutshell, if you have to think or ask if you need a Comm ticket or not, you do.

Spread this around, maybe there'll be fewer of these threads. Doesn't have to make any more sense than the oft-quoted Mangiamele letter that effectively squashed much business flying in this country (because no interpretation of the rule could possibly make LESS sense than that one . . . ).

 

[dtuuri]

The way I read it, is that you are carrying your own property in your own airplane and nobody is paying you to fly.
You sell your turnips when you get there.
If you worked, as a turnip digger employee of the farm, and the farm wanted you to fly their turnips, then you would need the CPC.

I've been gone all day. I've skimmed the rest of the posts. Nosehair (I love that name!), you're the only one with any common sense here or in the Chief Counsel's Office. It's on me.

dtuuri

 

[poadeleted20]

Does the San Bernadino letter carry any weight, or has it been superseded?

I'm not finding a "San Bernadino" letter. Got a link?

 

[poadeleted20]

I've been gone all day. I've skimmed the rest of the posts. Nosehair (I love that name!), you're the only one with any common sense here or in the Chief Counsel's Office.

Regrettably, it's about the law, not common sense.

 

[JoseCuervo]

I'm not finding a "San Bernadino" letter. Got a link?

Cut and pasted it up above, in this thread.

On TapAtalk right now, so cut and pasting is a challenge.


Post 95, up above.

Here it is....

September 8, 1977





Mr. Harry M. Mays





Dear Mr. Mays:





This is in reply to your letter of October 8, 1976, requesting an opinion as to the legal permissibility, under the Federal Aviation Regulations (FAR), of allowing private pilots to transport juvenile wards of San Bernardino County.





By way of background, you have stated that the County Probation Department currently employs a number of persons who possess private pilot certificates. The department places a number of juveniles in foster homes which are many hours during time from your central San Bernardino facility. You wish to allow persons possessing private pilot certificates to transport those juveniles by air. As we understand the facts, the aircraft used would be rented on a per trip basis. Aircraft operation is not part of the pilot's job description, nor a condition of employment or advancement. The pilot would not be compensated over and above his usual salary. The county would pay for the aircraft rental charges.





We will answer your questions in the order which they have been presented:





1. "Is it legal for the department to use personnel with pilot's licenses to transport juvenile wards?" The privileges and limitations of a private pilot certificate are found in Title 14, Code of Federal Regulations (CFR), Section 61.118. The basic rules announced therein states that "a private pilot may not act as pilot in command of an aircraft that is carrying passengers for compensation or hire, act as pilot in command of an aircraft." Subsection (a) of the regulations, however, does allow a private 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 employment or business and the aircraft does not carry passengers for compensation or hire.





So long as there is no compensation paid by or for the passengers, or received by the pilot, for the flight, a private pilot may carry passengers provided that the flight is only incident to employment. Whether a flight is merely incident to employment or a necessary or major part of his job requires a qualitative judgment based upon a number of factors including, but not limited to, the following:





a. Is the piloting of an aircraft a condition of employment or advancement; or a part of his job description? If so, flights would not be "incident" to employment.





b. Is the pilot compensated, over and above his normal income, for operating an aircraft? If so, the operation of the aircraft is not merely "incidental" to his work.





c. How much of the pilot's work time is spent operating an aircraft? The greater the amount of time, the less the operations are "incident" to employment.





2. Is there any restriction as to the distance persons can be transported? There is no distance restriction.





3. Could a person possessing a commercial license perform these duties? If so, would there be any restrictions? A commercial pilot may carry persons or property for compensation or hire, and may act as pilot in command of an aircraft for compensation or hire, as stated in FAR 61.139 (14 CFR 61.139). If the pilots are not already employees of the Probation Department and are hired as independent contractors for the purpose of providing a transportation service, the requirements of FAR Part (135 Air Taxi/Commercial Operator) apply. These persons would not be considered as executive, or business aviation pilots engaged in Part 91 operation.





Sincerely,





DEWITTE T. LAWSON, JR.


Regional Counsel

 

[dtuuri]

...a private pilot may carry passengers provided that the flight is only incident to employment.

Ah-ha, I knew it!

dtuuri

 

[RotorAndWing]

 

[poadeleted20]

Cut and pasted it up above, in this thread.

On TapAtalk right now, so cut and pasting is a challenge.


Post 95, up above.

Here it is....

September 8, 1977

Mr. Harry M. Mays

Dear Mr. Mays:

This is in reply to your letter of October 8, 1976, requesting an opinion as to the legal permissibility, under the Federal Aviation Regulations (FAR), of allowing private pilots to transport juvenile wards of San Bernardino County.

By way of background, you have stated that the County Probation Department currently employs a number of persons who possess private pilot certificates. The department places a number of juveniles in foster homes which are many hours during time from your central San Bernardino facility. You wish to allow persons possessing private pilot certificates to transport those juveniles by air. As we understand the facts, the aircraft used would be rented on a per trip basis. Aircraft operation is not part of the pilot's job description, nor a condition of employment or advancement. The pilot would not be compensated over and above his usual salary. The county would pay for the aircraft rental charges.

We will answer your questions in the order which they have been presented:

1. "Is it legal for the department to use personnel with pilot's licenses to transport juvenile wards?" The privileges and limitations of a private pilot certificate are found in Title 14, Code of Federal Regulations (CFR), Section 61.118. The basic rules announced therein states that "a private pilot may not act as pilot in command of an aircraft that is carrying passengers for compensation or hire, act as pilot in command of an aircraft." Subsection (a) of the regulations, however, does allow a private 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 employment or business and the aircraft does not carry passengers for compensation or hire.

So long as there is no compensation paid by or for the passengers, or received by the pilot, for the flight, a private pilot may carry passengers provided that the flight is only incident to employment. Whether a flight is merely incident to employment or a necessary or major part of his job requires a qualitative judgment based upon a number of factors including, but not limited to, the following:

a. Is the piloting of an aircraft a condition of employment or advancement; or a part of his job description? If so, flights would not be "incident" to employment.

b. Is the pilot compensated, over and above his normal income, for operating an aircraft? If so, the operation of the aircraft is not merely "incidental" to his work.

c. How much of the pilot's work time is spent operating an aircraft? The greater the amount of time, the less the operations are "incident" to employment.

2. Is there any restriction as to the distance persons can be transported? There is no distance restriction.

3. Could a person possessing a commercial license perform these duties? If so, would there be any restrictions? A commercial pilot may carry persons or property for compensation or hire, and may act as pilot in command of an aircraft for compensation or hire, as stated in FAR 61.139 (14 CFR 61.139). If the pilots are not already employees of the Probation Department and are hired as independent contractors for the purpose of providing a transportation service, the requirements of FAR Part (135 Air Taxi/Commercial Operator) apply. These persons would not be considered as executive, or business aviation pilots engaged in Part 91 operation.

Sincerely,
DEWITTE T. LAWSON, JR.
Regional Counsel

Regional Counsel letter from 1976, overruled by the Chief Counsel in the more recent Mangiamele letter.

 

[Henning]

Chief Counsel Interpretations are not decisions in law, only a judge can do that. Having the prior letter and common sense against Mangiamele, a challenge would likely get Mangliamele excluded and rewritten to make sense. That no one has challenged that interpretation in court does not mean the interpretation is valid in law. Only a challenge can establish that. Until then it's the opinion of one lawyer.

 

[PPC1052]

Chief Counsel Interpretations are not decisions in law, only a judge can do that. Having the prior letter and common sense against Mangiamele, a challenge would likely get Mangliamele excluded and rewritten to make sense. That no one has challenged that interpretation in court does not mean the interpretation is valid in law. Only a challenge can establish that. Until then it's the opinion of one lawyer.

Certainly true that the Chief Counsel's interpretation of the FAA's own regulation is not gospel. But it will be given deference, provided it isn't "plainly erroneous or inconsistent with the regulation." And of course, just because one trial court rules one way doesn't mean it is binding on any other trial court.

 

[JoseCuervo]

Regional Counsel letter from 1976, overruled by the Chief Counsel in the more recent Mangiamele letter.

Is there a better definition of "incidental" in a newer letter?


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