FAA Reinforces its Position on FAR 61.113

payment postingIn a recent legal interpretation, the FAA reinforced its position regarding the prohibition on private pilots operating aircraft for compensation or hire, as specified in FAR 61.113(a).  The legal opinion examined a scenario where a private pilot would fly at an airshow performance, but would not receive any monetary compensation, would not log flight time toward an additional certificate or rating, and would not receive additional benefits, amenities, or privileges than any other flight or ground crewmember volunteer.  The FAA observed that “compensation” includes non-monetary considerations such as fuel, aircraft rental and maintenance costs, flight time towards ratings or certificates, meals, and lodging.  In line with its previous legal positions, the FAA concluded that, if such amenities would not be provided but for the private pilot’s operation of an aircraft, they would be considered compensation in violation of the regulation.

As this legal interpretation makes clear, determining whether an amenity is considered “compensation” for purposes of FAR 61.113 is difficult.  Pilots should consult with an experienced aviation attorney before engaging in any flight activity that could be considered operation for compensation or hire.

No Right Turns Unless Authorized or Required

220px-Turn_coordinator_-_coordinated.svgIn a recent legal opinion, the FAA clarified its position on FAR 91.126 regarding turns on approach to an airport in uncontrolled airspace.  In response to an inquiry regarding whether the regulations authorized turns to the right in the vicinity of uncontrolled airports, the FAA concluded that a pilot approaching to land at an uncontrolled airport may make right turns if approved light signals or ground markings indicate that right turns are required, or if such deviation is “authorized or required”.  However, such authorized or required deviations are rarely appropriate under the regulations.  The FAA stated that the phrase “authorized or required” itself does not give pilots the discretion to deviate from FAR 91.126.  Such deviation must be “authorized or required” by the approach guidelines of a specific airport or by another FAA regulation.  For example, § 91.3(b) authorizes the pilot in command (PIC) of an aircraft to deviate from any rule of part 91 to the extent necessary to resolve “an in-flight emergency requiring immediate action.”  Such a decision to deviate is within the PIC’s judgment, however, this determination must be made in good faith based on safety concerns and not convenience.

When Exclusive Use Really Means Exclusive Use

FAAIn a recent legal interpretation, the FAA weighed in on the requirement that a Part 135 operator have “exclusive use” of at least one aircraft that meets the requirements for at least one kind of operation authorized in the certificate holder’s operations specifications.  [14 C.F.R. 135.25(b)].  The legal interpretation analyzed a scenario where the Part 135 operator’s exclusive use aircraft is owned by a limited liability company which also uses the aircraft to conduct Part 91 operators.  Distinguishing this aircraft use from aircraft shared solely between Part 135 operators, the FAA reiterated that the term “exclusive use” means “the sole possession, control,and use of the exclusive use aircraft.”  The FAA concluded that allowing a Part 135 operator’s exclusive use aircraft to be shared with Part 91 operations would render the Part 135 operator’s use non-exclusive and, therefore, in violation of the regulations.

Pilot Duty Period Does Not Include Working at a Restaurant

In its response to a request for legal opinion, the FAA concluded that a pilot working for a part 135 certificate holder cannot perform work for that certificate holder, whether directly or indirectly through a related business or corporation owned by the certificate holder, during the pilot’s mandatory rest period.  Although the certificate holder is not required to monitor employee activity that takes place after release from work, such as in the case of work at a restaurant or some other business, including flying for another certificate holder, the FAA cautioned that both the flight crewmember and certificate holder would be in violation of FAR 91.13 if a flight crewmember flies when his lack of rest would endanger others.

Time Spent Observing or Resting May Not Count Towards Operating Experience

sleeping-pilot2In a recent legal interpretation, the FAA clarified the permissible methods by which pilots in command (PICs) and second in command (SICs) may log operating experience pursuant to FAR 121.434.  Subsection 121.434(c) sets forth the parameters by which PICs and SICs may gain operating experience.  Paragraph (c)(l)(i) specifically provides that a PIC “must perform the duties of a pilot in command under the supervision of a check pilot,” and paragraph (c)(2) specifies that a SIC “must perform the duties of a second in command under the supervision of an appropriately qualified check pilot” to acquire operating experience.

In 1995, the FAA amended the operating experience requirements of FAR 121.434 in response to a series of accidents that had occurred at least, in part, due to the inexperience of flightcrew members.   As part of the amended rule, the option allowing SIC’s to earn operating experience through observation was removed from the regulation.

In its legal interpretation, the FAA concluded that the plain language of the regulation, as well as the rulemaking history, require that PICs and SICs must actually be “seated at the controls of the airplane” and “perform the duties required of a PIC or SIC” to acquire operating experience.  Accordingly, time spent by a pilot while not seated at the controls, including time spent resting, cannot be counted to satisfy the pilot operating experience requirements of FAR 121.434 for a PIC or SIC.

Certificate Reinstatement at Part 142 Training Center Requires Specific Program

FAAIn a recent legal opinion, the FAA determined that the practical test component of reinstatement of an expired flight instructor certificate cannot be accomplished using a flight simulator at a part 142 training center, unless that training center has an approved program for instructor training or certificate reinstatement.  For purposes of reinstatement of an expired certificate, the FAA requires that the flight instructor practical test be done in accordance with § 61.183(h) and the flight instructor must complete the practical test specified under that section.  If reinstatement is attempted using a simulator at a part 142 training center, the instructor must be enrolled in an approved course of training specific to instructor certification or reinstatement in order for such training to be conducted in a simulator.  The FAA specifically rejected a proposed interpretation that would have permitted the expired instructor to reinstate his certificate using “any course” at the training center.

Informal Avionics Testing Found Not to Violate FAR 61.113(a)

A private pilot who installed her company’s avionics in her personal aircraft and provided feedback on the avionics’ performance was found not to have violated FAR 61.113(a), which prohibits private pilots from carrying passengers or property for compensation or hire.  In a recent response to a request for legal interpretation, the FAA determined that because the private pilot was not compensated for testing the avionics or for providing feedback on the avionics’ performance, and because she did not conduct her flights at the direction of her company, she was not carrying passengers or property for compensation or hire as proscribed by FAR 61.113(a).

Because every situation is unique, any determination regarding whether a private pilot could potentially violate FAR 61.113(a) should be made with the assistance of an experienced aviation attorney.

Certificate Requirements Not Avoided by Creative Corporate Structure


In a recent memorandum, the FAA scrutinized two complex aircraft lease arrangements involving multiple corporate entities to find that the corporations engaged in wet leasing without the requisite Part 119 certificates.  Although the situations analyzed in the memorandum were hypothetical, they reflect real-world issues that arise when subsidiaries or shell entities are formed for the sole purpose of leasing aircraft within the company or to closely related entities.  Corporations seeking to own or lease aircraft should consult with an aviation attorney experienced in ownership and leasing issues.

Sequestration Comes to New Jersey

The FAA has released it schedule of tower closings due to federal sequestration.  According to statistics provided by  AOPA, the FAA is being forced to cut $600 million, about 5 percent of its budget, and the Contract Tower Program is slated to take a 75-percent cut.  On the list of tower closings is Trenton Mercer Airport (TTN) in Ewing, New Jersey.  Situated on the edge of the Philadelphia Class B airspace, Trenton Mercer Tower provides key coordination and separation services for both air carrier and general aviation operations.  Pilots should check the tower closing list and call ahead to verify whether ATC services will be available at their destination.  For safety and compliance, pilots who do not regularly operate at uncontrolled airports should review non-towered airport procedures prior to departure.

Borrowing an Airplane Could Confer a Benefit Amounting to Compensation

In a recent opinion, the FAA Office of the Chief Counsel reiterated the agency’s broad interpretation of 14 C.F.R. 61.113, which governs the compensation of private pilots for flight activities.  The requestor posed a hypothetical situation where an aircraft owner would loan his airplane to a private pilot friend and require the friend to only pay for the cost of fuel actually used by the friend.  The FAA noted that under this scenario, the owner failed to charge his friend the actual pro rata cost of operating the aircraft (including maintenance and incidentals), instead only requiring his friend to purchase fuel.  Therefore, the FAA concluded that the friend received some financial benefit by avoiding the full cost associated with his operation of the aircraft which could violate the regulatory prohibition on private pilot compensation.

It is important for private pilots to remember that monetary benefits which violate 14 C.F.R. 61.113 encompass more than just the receipt of cash.  To avoid possible enforcement actions, pilots should consult with an experienced aviation attorney before entering into financial or quid pro quo arrangements involving the operation of aircraft.