Restoring the Freedom to Fly for Private Benefit

[ronnieh]

Roto, you are being optimistic. I predict a snowball's chance in....

 

[Perezhr]

If you're referring to the Mangiamele letter, yes, they can. The pilot on such a flight incidental to employment can accept pro rata shares from each passenger. What those passengers do after that isn't the FAA's concern, so those passengers can claim reimbursement from their employer without the FAA's knowledge or consent. The only thing the pilot cannot do in that case is collect reimbursement from his/her employer for his/her own share of the direct cost of the flight. So, under Mangiamele, the more passengers the pilot has, the less the pilot is out of pocket for his/her share of the flight, which seems to me to encourage carrying as many passengers as possible on such flights -- which I don't think was the FAA's intent in this matter. Chalk it up to the unintended consequences of some FAA attorney twisting the wording of 61.113 all out of shape.

I bit confused here, and at the risk of finding out I'm doing something illegal I'll ask anyway. I take my Mooney on business trips occasionally. The US Government's own Joint Travel Regulations state that I can use my own private aircraft for government business related travel and they will reimburse my expenses at $1 per mile up to the cost of commercial carrier. In my Mooney, that is typically sufficient to cover all of my expenses. Are the US Governments own travel regulations in conflict with FAA regulations?


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[poadeleted20]

You know what I like about this bill...it comes out and changes the rule directly. It's not the typical "The Administrator shall initiate rulemaking to..."

Instead it just declares a right, and as a consequence makes the regulations to the contrary null and void.

I'm not sure Congress has the power to do that since it appears to me that would conflict with the Administrative Procedures Act. Any of you lawyers know for sure about that?

 

[poadeleted20]

If you're referring to the Mangiamele letter, yes, they can. The pilot on such a flight incidental to employment can accept pro rata shares from each passenger. What those passengers do after that isn't the FAA's concern, so those passengers can claim reimbursement from their employer without the FAA's knowledge or consent. The only thing the pilot cannot do in that case is collect reimbursement from his/her employer for his/her own share of the direct cost of the flight. So, under Mangiamele, the more passengers the pilot has, the less the pilot is out of pocket for his/her share of the flight, which seems to me to encourage carrying as many passengers as possible on such flights -- which I don't think was the FAA's intent in this matter. Chalk it up to the unintended consequences of some FAA attorney twisting the wording of 61.113 all out of shape.

I bit confused here, and at the risk of finding out I'm doing something illegal I'll ask anyway. I take my Mooney on business trips occasionally. The US Government's own Joint Travel Regulations state that I can use my own private aircraft for government business related travel and they will reimburse my expenses at $1 per mile up to the cost of commercial carrier. In my Mooney, that is typically sufficient to cover all of my expenses. Are the US Governments own travel regulations in conflict with FAA regulations?

No, they are not. The JTR's on this only establish the maximum rate at which the government or government contractors can reimburse government employees and contractors for air travel in privately owned aircraft without further justification. However, that does not provide permission for individual pilots who happen to be government employees or contractors to accept that reimbursement -- only the FAA has the authority to approve that.

Further, it doesn't establish that rate as an approved rate for income tax purposes -- that's an IRS function, and the IRS is on record saying you still must justify the actual expense of the flight with IRS-quality records with no "standard" mileage rate authorized as their is for privately owned automobiles. If you collect $200 from DoD for flying your privately-owned 172 on government business on a trip of 100 miles each way on a $1/mile basis per the JTR's (or whatever it is currently), you still have to be able to show the IRS you actually paid at least $200 in expenses for that flight even if you don't have to show your employing/contracting Federal agency. If it didn't actually cost that much, anything over the actual, documentable cost is taxable income. OTOH, if it cost you more than $200, you can deduct that excess expense as an unreimbursed business expense on your personal income taxes. And yes, I've been over this with the IRS and two tax professionals, but feel free to get your own review from your own tax professionals.

However, none of that authorizes you to accept reimbursement from your employer for carrying passengers when that is prohibited by the FAA even if you can legally accept pro rata shares directly from your passengers under 61.113(c). So, as I said, on a business flight with three passengers, you can collect 3/4 of the cost directly from the passengers, but you cannot collect the other 1/4 from your employer or collect their shares directly from your employer even if your employer is the Federal government. I realize that appears a bit of a paperwork dodge, but that's how Mangiamele reads.

IOW, just because some department of the government is authorized to pay you something doesn't necessarily mean you are authorized to receive it and/or not pay taxes on it. That may sound like a Catch-22, but it is the law.

 

[JeffDG]

I'm not sure Congress has the power to do that since it appears to me that would conflict with the Administrative Procedures Act. Any of you lawyers know for sure about that?

And who created the APA?

 

[PPC1052]

I'm not sure Congress has the power to do that since it appears to me that would conflict with the Administrative Procedures Act. Any of you lawyers know for sure about that?

Any act of congress can be undone by an act of congress.

The APA governs how administrative agencies must operate to implement regulations. It doesn't prevent congress from passing statutes.

 

[poadeleted20]

Any act of congress can be undone by an act of congress.

The APA governs how administrative agencies must operate to implement regulations. It doesn't prevent congress from passing statutes.

I agree, but I don't think Congress can enact a statute saying "Section X of Title Y of the Code of Federal Regulations is hereby changed as follows..." I think that would violate the separation of powers requirements of the Constitution.

 

[JeffDG]

I agree, but I don't think Congress can enact a statute saying "Section X of Title Y of the Code of Federal Regulations is hereby changed as follows..." I think that would violate the separation of powers requirements of the Constitution.

The power to make laws is vested in Congress, not the executive. The very power of rulemaking belongs to Congress and is delegated by Congress to the Executive, and may be reclaimed at any time they wish to.

In the event of a conflict between a regulation and a statute passed by Congress, the statute always prevails.

So, yes, Congress could most certainly do that should they choose to.

 

[poadeleted20]

The power to make laws is vested in Congress, not the executive. The very power of rulemaking belongs to Congress and is delegated by Congress to the Executive, and may be reclaimed at any time they wish to.

In the event of a conflict between a regulation and a statute passed by Congress, the statute always prevails.

So, yes, Congress could most certainly do that should they choose to.

Do you have any references on point?

 

[mcmanigle]

Do you have any references on point?

The Nondelegation Doctrine is fundamental to the separation of powers, so doesn't have a constructing reference per se. These days Congressional delegation of power to Executive agencies like the FAA is very common, but from Congress the power came, and the expressed will of Congress guides it irrevocably.

If you want a good example, how about your personal favorite, the Chevron case? Just before the bit where Justice Stevens says that the court will generally defer to the agency in interpreting its own regulations and guiding laws, he states the more general rule:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.

He goes on to write that if "Congress has not directly addressed the precise question at issue", the court will generally defer to the agency. The footnote is even more explicit, saying:

The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect. [Internal citations omitted.]

 

[JeffDG]

Good references.

If Congress were to pass a law that said "Private Pilots may accept any compensation that they wish to." they could. The regulations prohibiting compensation would still exist in 14 CFR, however, they would be of no force or effect. Were the FAA to try and enforce them, any court would simply ignore them as being "otherwise contrary to the law" and beyond the authority of the FAA to make regulations.

It would be similar to if the Congress were to pass a bill entitled the "Ron Levy Shut the **** Up Act of 2014" . Such an act would become part of the US Code, however if a US Attorney tried to enforce such a law, the courts would rule it was not valid as both an infringement of the 1st Amendment, and the Bill of Attainder clause, as the Constitution defines the powers of Congress and has prohibited precisely this exercise of power.

 

[JeffDG]

Do you have any references on point?

Sure...Burwell v. Hobby Lobby Stores. The Department of Health and Human Services proposed, and attempted to enforce, a regulation that ran contrary to the clear language of the Religious Freedom Restoration Act. The Supreme Court held that the regulation must yield to the statute.

Do you have any instance where the courts upheld regulations in the face of clear Congressional enactments to the contrary?

Regulations are promulgated by the Executive based upon powers delegated by Congress. Should those regulations run contrary to the clearly expressed will of Congress, those regulations are of no force or effect. This is just basic law regarding the powers of the branches.

 

[PPC1052]

I agree, but I don't think Congress can enact a statute saying "Section X of Title Y of the Code of Federal Regulations is hereby changed as follows..." I think that would violate the separation of powers requirements of the Constitution.

As others said above (and said better), Congress trumps mere administrative bodies. Congress is one of the three branches of government set forth in the constitution. The FAA only has what power congress gave it. And Congress can take that power away.

Heck, Congress could, if they want, wipe out all federal district courts if they want to. A bit of a non-sequiter, I know, but it illustrates the point.

 

[JeffDG]

Heck, Congress could, if they want, wipe out all federal district courts if they want to. A bit of a non-sequiter, I know, but it illustrates the point.

And all circuit courts of appeal. The power to create or eliminate courts inferior to the Supreme Court belongs to Congress alone.

 

[PPC1052]

And all circuit courts of appeal. The power to create or eliminate courts inferior to the Supreme Court belongs to Congress alone.

yep. .

 

[DrMack]

Congress created the FAA. Like all federal regulations, those in Title 14 have been created to comply with statutes, mostly the Federal Aviation Act of 1958. So if a statute like the Restoring the Freedom to Fly Act of 2015 is signed into law, the CFRs will have to be amended by the FAA and the agency will have no choice in the matter. Note that the bill amends the Federal Aviation Act of 1958, not the FARs. The FAA will have no choice but to amend the FARs if they are no longer in compliance with the Act. The fact that the language of the bill happens to affect a particular FAR ( in this case 14 CFR 61.113) is of no concern to Congress.

 

[Jim Logajan]

(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.​

I think if one strikes out the text indicated from the regulations, the sentence below highlighted in red in Mangiamele would be a reasonable conclusion:

In regard to whether you may seek reimbursement from your employer for transporting your colleagues, since you are transporting people to the meeting, the allowance for the flight to be conducted for compensation or hire (i.e., reimbursement) under 61.113(b) does not apply. The exception in paragraph (b) allows you to use your private pilot certificate only for compensation or hire if the operation is incidental to your employment and you are not transporting other passengers or property. Thus, because you are transporting people to the meeting, you may not seek reimbursement from your employer for this flight under 14 C.F.R. § 61.113(b).​

The struck qualifier, "for compensation or hire," when added back in, can be seen to reduce the scope of the prohibition - it does not expand it. Specifically, it seems to allow for cases where a pilot is compensated for a flight so long as the passengers or property are riding free. The problem with the letter seems to be that the assumption in green is not the only permutation, and the letter contains a non sequitur in generating the statement in red.

Lastly, the Alaska Hunters case makes reference to two cases, Marshall (1963) and Humble (1992) that were adjudicated in favor of private pilots who had passengers and property on board and were compensated for the flights. In both cases the judges found the transport to be incidental to their businesses.

I would normally expect case law to take precedence over an opinion letter when parsing the scope and meaning of regulations. As it happens I have been fully compensated as a private pilot when I flew to a client a couple months ago and had on board some intellectual property that I also delivered. I think I was within the law.

 

[JeffDG]

Congress created the FAA. Like all federal regulations, those in Title 14 have been created to comply with statutes, mostly the Federal Aviation Act of 1958. So if a statute like the Restoring the Freedom to Fly Act of 2015 is signed into law, the CFRs will have to be amended by the FAA and the agency will have no choice in the matter. Note that the bill amends the Federal Aviation Act of 1958, not the FARs. The FAA will have no choice but to amend the FARs if they are no longer in compliance with the Act. The fact that the language of the bill happens to affect a particular FAR ( in this case 14 CFR 61.113) is of no concern to Congress.

Well, technically, that's what Congress usually does...they pass a law instructing the FAA to change such and such regulation...like photo pilot certificates, and the FAA duly drags their feet in complying.

But in this case, Congress is simply establishing a rule on their own. The FAA can amend the regulations to bring them into compliance, but even if they don't, regulations inconsistent with the new law are of no force or effect as soon as the law takes effect, regardless of whether the FAA does anything to change the regulations or not.

 

[Dr. O]

The FAA is incompetent and bungling and self absorbed in gazing at their navels - but on this issue, they got it right.
Count me out on any petition.