Is this a Part 135 Operation?

[Jeff Oslick]

This is a continuation of the "Las Vegas" thread in Hangar Talk.


Scenario:

A pilot elected to do a precautionary landing and left his plane at a remote airfield due to a mechanical problem. Mechanical problem is fixed, but now he needs to get back to the remote airfield. He has a non-pilot friend that also needs to fly with him back to his plane.

The pilot of the stranded aircraft rents an aircraft to return to their plane, being PIC on the outbound flight (he is fully qualified as PIC for the rental plane as far as the FAA is concerned). He brings along a commercial pilot to ferry the plane (solo) back to the rental FBO. Let's assume the commercial pilot is being paid for their time to fly out and back, but is not PIC nor required crew on the outbound flight.

Can this be construed as a Part 135 operation with regard to the commercial pilot's or FBO's involvement? If so, what about this operation makes it fall under Part 135?

My read is that the commercial pilot is not carrying passengers for compensation/hire, and this is a Part 91 activity.

Jeff

 

[AdamZ]

Jeff: VERY good question! Thanks for asking it. I don't have the answer but look forward to reading the responses.

 

[SkyHog]

Well...if the commercial rated pilot is rated as a CFI, couldn't they just turn it into a dual flight?

When I went on my discovery flight, I took a friend along and the CFI had no problem with it.

When I flew to Nantucket for lunch, I (still student pilot) went with a CFI and my cousin...he had no problem either.

Both of them are very rule aware (it seems).

 

[bbchien]

Well...if the commercial rated pilot is rated as a CFI, couldn't they just turn it into a dual flight?

Nick, that is precisely how I got my Seneca for less than the price of a baby lexus. The ATP rated pilot was taking people places and signing their logbooks as instruction. The FBO on the field suspected this and sic'd FAA on him. The penalty is REVOCATION OF ALL CERTIFICATES. He managed to get a consent decree for 180 day suspensions if he disposed of the runout aircraft (at annual) by month's end. The kid was lucky- he didn't even have a bachelor's. He would have been out on his a__ as it were.

This is the "Richie Valens" rule. FAA has broad authority to clean out anyone guilty of busting 135, and it holds up on appeal.

 

[EdFred]

This is a continuation of the "Las Vegas" thread in Hangar Talk.


Scenario:

A pilot elected to do a precautionary landing and left his plane at a remote airfield due to a mechanical problem. Mechanical problem is fixed, but now he needs to get back to the remote airfield. He has a non-pilot friend that also needs to fly with him back to his plane.

The pilot of the stranded aircraft rents an aircraft to return to their plane, being PIC on the outbound flight (he is fully qualified as PIC for the rental plane as far as the FAA is concerned). He brings along a commercial pilot to ferry the plane (solo) back to the rental FBO. Let's assume the commercial pilot is being paid for their time to fly out and back, but is not PIC nor required crew on the outbound flight.

Can this be construed as a Part 135 operation with regard to the commercial pilot's or FBO's involvement? If so, what about this operation makes it fall under Part 135?

My read is that the commercial pilot is not carrying passengers for compensation/hire, and this is a Part 91 activity.

Jeff

I would say it is not a 135 op. The CFI/commercial pilot is ferrying a plane back - in this case the rental. In order to ferry a plane, all you need is a commercial, rated, current, blah blah blah.

 

[Ed Guthrie]

Nick, that is precisely how I got my Seneca for less than the price of a baby lexus.

Apples vs. Oranges.

The ATP rated pilot was taking people places and signing their logbooks as instruction.

Any of those "students" fully qualified pilots? Doubtful. The ATP was running a Part 135 op hauling non-pilot passengers. The question at hand is a pilot hauling a commercial pilot in his employ to the site of a flying job. Totally different scenarios.

 

[Jeff Oslick]

The question at hand is a pilot hauling a commercial pilot in his employ to the site of a flying job.

Ed-

Thanks, that's a great way of describing this operation in simpler terms.

Jeff

 

[gismo]

Apples vs. Oranges.The question at hand is a pilot hauling a commercial pilot in his employ to the site of a flying job. Totally different scenarios.

Viewed from that perspective it doesn't look like a part 135 Op to me either, at least as long as the pilot (the one who's plane was stranded) was indeed PIC on the outbound flight. If not (for instance if he wasn't endorsed for a HP or complex and the airplane was such) or perhaps even if the only issue was that the FBO wouldn't rent him the plane because he wasn't "current" with them then the flight would have been an "instructional flight" that terminated at an airport that wasn't the point of origin and happened to be where the pilot needed to be transported to. IMO that would be at least a grey area even if technically OK. In any case the return flight by the CFI sounds completely legit to me (always has) since the CFI obviously has commercial privledges in that airplane and that's all he needs.

 

[gismo]

Well...if the commercial rated pilot is rated as a CFI, couldn't they just turn it into a dual flight?

When I went on my discovery flight, I took a friend along and the CFI had no problem with it.

When I flew to Nantucket for lunch, I (still student pilot) went with a CFI and my cousin...he had no problem either.

Both of them are very rule aware (it seems).

I see absolutely no problems with either of those flights. The difference is the purpose of the flights was obviously instructional. It doesn't matter one whit if another person (pilot, student or passenger) rides along. Where I would become concerned is when the real purpose is transportation and the CFI tries to disguise it as instruction.

In the case Jeff's posting, the true purpose of the outbound flight was transportation. If the pilot (not the CFI) could make the trip legally without the CFI then it looks quite legal assuming the arrangement was that the pilot was acting PIC. In that case as Ed points out he was simply taking himself, his friend, and the CFI to the remote airport (a perfectly legal part 91 non-commercial flight ) and then paying the CFI to ferry the rented plane back home (a commercial operation, but not part 135).

 

[BruceAir]

This topic is almost as fun as a "logging time" discussion.

The following articles available on the AOPA Web site (if you're a member) provide some good background on these questions:

Flying For Hire:
http://www.aopa.org/members/ftmag/article.cfm?article=2672:

Unless you're established as a certificated Part 135 air taxi operator, you'll find your commercial certificate restricted to seven basic categories of fly-for-hire activities. As listed in FAR 135.1 (b), Applicability, these activities are not covered by the regulatory umbrella of air taxi operations:

1. Student instruction (assuming you're a CFI)
2. Nonstop sightseeing flights that begin and land at the same airport and are conducted within a 25-statute-mile (sm) radius of that airport
3. Ferry or training flights
4. Aerial work operations, including:
   • a. Crop dusting, seeding, spraying, and bird chasing
   • b. Banner towing
   • c. Aerial photography or survey
   • d. Fire fighting
   • e. Helicopter operations in construction or repair work (but not including transportation to and from the site of operations)
   • f. Power line or pipeline patrol or similar types of patrol approved by the administrator
5. Sightseeing flights conducted in hot air balloons
6. Nonstop flights conducted within a 25-sm radius of the airport of takeoff' carrying persons for the purpose of intentional parachute jumps
7. Helicopter flights conducted within a 25-sm radius of the airport of takeoff, if...(see FAR 135.1 for additional helicopter items)

Private vs. commercial flying
http://www.aopa.org/members/files/pilot/1999/pc9912.html

Commercial operations and the private pilot
http://www.aopa.org/members/files/pilot/2004/pc0403.html

 

[EdFred]

I don't think any of those seven are applicable if Jeff flies the plane out there. Even if he only logs PIC and isn't actually PIC.

 

[Ed Guthrie]

I don't think any of those seven are applicable if Jeff flies the plane out there. Even if he only logs PIC and isn't actually PIC.

Careful. That last one "only logs PIC and isn't actually PIC" puts the flight into a Part 135 bin. The only other PIC legal pilot in the aircraft is being paid to make the trip and the company for which he works provided the aircraft. Solid Part 135 activity.

 

[EdFred]

Careful. That last one "only logs PIC and isn't actually PIC" puts the flight into a Part 135 bin. The only other PIC legal pilot in the aircraft is being paid to make the trip and the company for which he works provided the aircraft. Solid Part 135 activity.

So iff Jeff isn't qualified to act as PIC (lacks the endorsements) then if he gets the necessary endorsements on that flight, it does end up being a legit training flight. The CFI is being paid for instruction. Like you said before, it's not like Jeff is a non-student / non-pilot and getting a ride. As far as the return goes, that seems like a ferry issue to me.

 

[Ed Guthrie]

So iff Jeff isn't qualified to act as PIC (lacks the endorsements) then if he gets the necessary endorsements on that flight, it does end up being a legit training flight. The CFI is being paid for instruction. Like you said before, it's not like Jeff is a non-student / non-pilot and getting a ride. As far as the return goes, that seems like a ferry issue to me.

Personally, I'd be careful with that sort of detail, too. How long does the normal checkout take for whatever endorsement is missing? Was this flight significantly longer/shorter? Was the training significantly different? For example, for complex we'd spend most of the time in the pattern doing multiple T/O's and landings, but this was a one T/O, one landing "training flight". Oops. Doesn't look good. The closer you push the flight's appearance to one of Jeff catching a ride from the legal PIC commercial pilot/CFI, in a plane the commercial pilot/CFI provided, and for which Jeff paid, the closer you push the interpretation to a Part 135 activity. Best to stay far, far away.

 

[poadeleted3]

Could the whole issue be resolved by going to the FBO, renting a plane, and hiring one of their CFIs to ferry your plane back? That way there is no doubt about whether or not you are just transporting him/her to the location of the job. You bring back the same plane you took out, and he/she brings your plane back, the job they were hired to do.

 

[Jeff Oslick]

Could the whole issue be resolved by going to the FBO, renting a plane, and hiring one of their CFIs to ferry your plane back?

In the situation in question, the plane was landed at an airport closer to the pilot's home airport - they arranged ground transportation to their business destination, and wanted to pick up their plane "on the way home". (They were not trying to rent from an FBO at/near the planes' home base.)

Jeff

 

[Ed Guthrie]

In the situation in question, the plane was landed at an airport closer to the pilot's home airport - they arranged ground transportation to their business destination, and wanted to pick up their plane "on the way home". (They were not trying to rent from an FBO at/near the planes' home base.)

The deciding factor is still whether or not the commercial pilot/CFI was a passenger or a crew member on the flight. Even allowing for the added scenario twist above, if the commercial pilot/CFI was paid to ride along it is a Part 91 flight. If the stranded pilot did the flying/acting as legal PIC the commercial pilot/CFI is a paid passenger (as opposed to a paying passenger) for as many legs as his employer cares to ask him/her to make.

 

[ErikU]

As the basis for the original question, I should point out that none of the 6 or so outfits I contacted had any problem with this. I would be renting a plane and flying it myself one way and hiring a CFI to fly it back. I think it is rather common.

It would be a different story if I were not a qualified pilot and I was hiring someone to fly me around... That would be part 135.

-Erik

 

[Bones]

Well.....I think "intent" in this situation would be looked at closely. This was a 1 time flight, and considerting the circumstances it seems to me its a 91. You are NOT "holding yourself out to the public." Which is one of those key phrases in the Regs somewhere. I don't think any inspector would waste his/her time on something like this. But if they suspected this was an ongoing behavior of yours you might get a nasty letter.

I have a good friend that was an Inspector in Manhattan, KS for years, and I really don't think that was the goal to bust folks for ambigous things like this. Ignorence won't save you much; but I think intent, if you can stand on it, will.

 

[sshekels]

I tried to do this same thing with a local FBO in Northern MN - They would not touch it with a 10 foot pole. The said they had been "busted" in the past, and would not do it.

I had asked to rent/fly one of their 172s to an airport about 15 miles away to get back to my car after dropping my aircraft off for work, and wanted a CFI to fly it back. No Way! After hashing it over a few minutes, the CFI drove me in her car. Go figure...

 

[gkainz]

After hashing it over a few minutes, the CFI drove me in her car. Go figure...

But did she charge you for instruction? Did you log it as dual given/received?

 

[sshekels]

LOL - I wish. It was nice for an old married guy like me to spend some quality time with a very pretty (and quite intelligent and accomplished) young woman!

 

[gkainz]

LOL - I wish. It was nice for an old married guy like me to spend some quality time with a very pretty (and quite intelligent and accomplished) young woman!

Here's to old married guys (of which I am one) :cheerio: and spending "legitimate quality time with a very pretty (and quite intelligent and accomplished) young women!" - with the wife's knowledge and support!
-------------
MN native
SD transplant
CA escapee
CO resident

 

[inav8r]

Would it be considered a 135 op if my CFI and I flew to another airport and picked somone up (known to me) and flew them back to our home base (assuming I paid 100% of rental and instruction)?

 

[Jeff Oslick]

Would it be considered a 135 op if my CFI and I flew to another airport and picked somone up (known to me) and flew them back to our home base (assuming I paid 100% of rental and instruction)?

Mike-

I think the "conclusion" for most folks on this thread is that, if you are only a student pilot (i.e. could not otherwise make the flight without the CFI), then this would be Part 135. If you are a private pilot, and just happen to have a CFI with on this particular flight, and you are acting as PIC, then it is Part 91.

Now, if the friend you are picking up legitimately wants to take a flight lesson, sitting in the left seat (yes, I know "left or right doesn't technically matter...just trying to make a point), and you are sitting in the back, then it is a Part 91 instructional flight for the CFI.

Jeff

 

[Greebo]

What if Mike would have had to go to the area in question and pick up that person anyway - just in a car instead of by plane?

Like, hypothetically, his kids being dropped off by his ex wife? (This is not the case, just coming up with scenarios)

 

[Jeff Oslick]

What if Mike would have had to go to the area in question and pick up that person anyway - just in a car instead of by plane?

If the CFI is a "required crew member" for the flight, is getting paid for the flight (by anyone, doesn't matter who), and third person in the plane isn't there expressly to receive flight instruction, it is a 135 operation.

I will retract my earlier comment about who needs to be in which seat. So long as both are there in a "student" capacity, it shouldn't matter. Having a second student in the back seat as a student-observer is a pretty common practice.

This actually just reminded me of my very first flight in a small airplane! My sister was a student pilot, and I was about 13 or 14 years old. We all flew together in a 172 (actually I think it was technically a T-41, and it belonged to the Edwards AFB Aero Club). Her instructor flew left seat, I was in the right, and my sister was in back. We flew out to California City for lunch, and I had the controls most of the way out. On the way back, my sister was in the left seat, instructor in the right, and me in back.

Jeff

 

[poadeleted20]

If the CFI is a "required crew member" for the flight, is getting paid for the flight (by anyone, doesn't matter who), and third person in the plane isn't there expressly to receive flight instruction, it is a 135 operation.

That's just not true. If the flight is truly an instructional flight for the trainee, guests are permitted aboard as long as the guest(s) is (are) not paying for transportation (although they could be paying for the flight, e.g., giving the instruction session to the trainee as a gift).

 

[Greebo]

That's just not true. If the flight is truly an instructional flight for the trainee, guests are permitted aboard as long as the guest(s) is (are) not paying for transportation (although they could be paying for the flight, e.g., giving the instruction session to the trainee as a gift).

So a student, paying for everything, with instructor, flying from point A to B, picking up friends/family at point B, and returning to A, is no problem?

 

[Jeff Oslick]

So a student, paying for everything, with instructor, flying from point A to B, picking up friends/family at point B, and returning to A, is no problem?

I think this is all filtering down to what is the "intent/purpose" of the passenger being on the flight. If the intent is only to hitch a ride from point A to point B, I think the FAA would have a problem with it. Granted, they would probably never know, unless this was a repeated practice, someone was trying to nail someone, or you met up with very grumpy ramp inspector at the wrong time and didn't have the "right" justification for the passenger being on board.

Jeff

 

[Jeff Oslick]

That's just not true. If the flight is truly an instructional flight for the trainee, guests are permitted aboard as long as the guest(s) is (are) not paying for transportation (although they could be paying for the flight, e.g., giving the instruction session to the trainee as a gift).

Ron-

I agree that under this scenario there wouldn't be a problem, because the guest is really there to observe the lesson, and therefore is actually receiving instruction (even if it isn't logged).

Jeff

 

[poadeleted20]

I think this is all filtering down to what is the "intent/purpose" of the passenger being on the flight. If the intent is only to hitch a ride from point A to point B, I think the FAA would have a problem with it. Granted, they would probably never know, unless this was a repeated practice, someone was trying to nail someone, or you met up with very grumpy ramp inspector at the wrong time and didn't have the "right" justification for the passenger being on board.

The FAA determines whether the flight is "bona fide" instruction based on the student's training level, the aircraft used, and the nature of the training given. If the "student" is a Student Pilot with 9 hours, the airplane is a Baron, the weather is IMC, and the "student" has a business meeting at the destination 400 miles away, the FAA will go ballistic even if nobody else is aboard and the student is paying for the flight out of his own pocket rather than charging the company. If the "student" in this scenario owns the plane, has an ME rating, and is burning off his 50 hours of dual in type before the insurance company will let him be PIC, then the "student" can have the business pay for the direct expenses and the instructor as well has having a couple of other company folks along for the ride and the FAA will say, "Mighty fine."

 

[poadeleted20]

Quote:
Originally Posted by Ron Levy
That's just not true. If the flight is truly an instructional flight for the trainee, guests are permitted aboard as long as the guest(s) is (are) not paying for transportation (although they could be paying for the flight, e.g., giving the instruction session to the trainee as a gift).

I agree that under this scenario there wouldn't be a problem, because the guest is really there to observe the lesson, and therefore is actually receiving instruction (even if it isn't logged).

Why the guest is there is immaterial if the training is bona fide and the guest is not paying for air transportation. If it's a true instructional flight, guests are permitted even if the guest isn't "actually receiving instruction" (which he isn't in this scenario, as opposed to my old buddy-system of instrument training).

 

[Jeff Oslick]

The FAA determines whether the flight is "bona fide" instruction based on the student's training level, the aircraft used, and the nature of the training given. If the "student" is a Student Pilot with 9 hours, the airplane is a Baron, the weather is IMC, and the "student" has a business meeting at the destination 400 miles away, the FAA will go ballistic even if nobody else is aboard and the student is paying for the flight out of his own pocket rather than charging the company. If the "student" in this scenario owns the plane, has an ME rating, and is burning off his 50 hours of dual in type before the insurance company will let him be PIC, then the "student" can have the business pay for the direct expenses and the instructor as well has having a couple of other company folks along for the ride and the FAA will say, "Mighty fine."

Ron,

Thank you for the above examples. That makes sense to me.

Jeff

 

[gismo]

Ron, that makes sense to me.

Just remember that if the true and obvious main purpose of the flight is transportation, any attempt to disguise that fact by tossing in some instruction may put you on the wrong side of the folks who can take away all your flight priviledges. I don't think this is a place to stand on technicalities.

 

[CFIse]

Just remember that if the true and obvious main purpose of the flight is transportation, any attempt to disguise that fact by tossing in some instruction may put you on the wrong side of the folks who can take away all your flight priviledges. I don't think this is a place to stand on technicalities.

I think that's a key point - if transportation occurs you need a 135 ticket.

Here's an example. A helicopter company was conducting Part 91 survey work. They landed somewhere so the survey people could get a closer look at something. Then they got back in the copter and continued. The FAA busted them. The basis apparently being that once you end up somewhere else transportation has occurred and the Part 119 exemptions don't apply.

 

[Everskyward]

What if you look at the whole situation this way? On the outbound leg the stranded airplane's pilot is the PIC. The commercial pilot, who doesn't even have to be a CFI, is a passenger. In fact, he or she can be asleep in the back. The return leg is a ferry for the commercial pilot and is Part 91.

Even if the commercial pilot is being paid the whole time, on the outbound leg they aren't being paid as a pilot, just for their time working in the service of their employer.

The FBO would probably require a checkout in advance for the stranded airplane's pilot, however, in order to do it this way.

On second thought, that might not work either because the the stranded airplane pilot would be transporting the commercial pilot to the job location. However, they both have a reason to be going there and the stranded airplane pilot isn't accepting money. Third thoughts? OK, I'll leave this alone now.

 

[Skip Miller]

Eversky, this is, I think, substantially the same as the original message in the thread. The answer from those with more experience than I, is that it is a 135 operation.

-Skip

 

[Everskyward]

I'm hardly the legal expert, but it just doesn't seem like Part 135 to me (and I fly 135). The second leg clearly isn't because it's a ferry with no pax or freight. It's the first leg that's in question. But if the commercial pilot is just a non-paying passenger I don't see how that can be seen as bootleg 135 either.

See, I can't leave it alone...

 

[poadeleted20]

Just remember that if the true and obvious main purpose of the flight is transportation, any attempt to disguise that fact by tossing in some instruction may put you on the wrong side of the folks who can take away all your flight priviledges. I don't think this is a place to stand on technicalities.

That's not exactly the way the FAA looks at it. It's a matter of air transportation for hire versus bona fide training. Even if the trip accomplishes air transportation, if there's bona fide training occurring, it's OK without a 135 certificate (see my businessman flying his own twin on a business trip with a CFI-ME along to be PIC for insurance purposes). Basically, it's all about the "duck rule" and Mr. Justice Stewart's observation about knowing it when he sees it.