January 1, 2013
By John S. Yodice
There is one subtle but important difference between the privileges of the holder of a private pilot certificate and the privileges of a sport or recreational pilot. It is a difference that is sometimes not well understood and could be problematic for sport/recreational pilots. This has to do with flight incidental to a business or employment.
By way of background, pilots are taught to understand that there is an important regulatory difference between “private” and “commercial” operations. The FAA regulates both for safety. However, commercial operators have additional regulatory burdens in and beyond the general operating and flight rules of FAR Part 91, and other rules. We all can easily recognize the classic private operation, which is a pilot flying his or her own aircraft (or a rented or borrowed aircraft) for his or her own purposes, including carrying passengers and property. This is not only within the privileges of a private pilot certificate but also the privileges of commercial and ATP pilots exercising the lesser “private” privileges that are implicit in their certificates. At the other end of the spectrum, we easily recognize the classic commercial operation such as those conducted by the airlines, air taxi operators, charter, et cetera—those engaged in the business of carrying persons or property for compensation or hire.
In this column I have explored the gray area in between private and commercial operations ( “Pilot Counsel: Private vs. Commercial Operations,” November 2011 AOPA Pilot). I reviewed the basic rule in FAR 61.113, which provides that “no person who holds a private pilot certificate may act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire; nor may that person, for compensation or hire, act as pilot in command.” The rule then goes on to permit some operations that might otherwise be considered commercial operations. Some familiar examples: A private pilot (or a commercial/ATP pilot exercising private privileges) may, under limited circumstances, share the expenses of a flight with his passengers (the pilot is technically receiving compensation even though it is only the passengers’ pro rata share of direct operating costs). A private pilot may carry passengers in a charitable airlift that technically involves “compensation or hire,” but to the benefit of the charity. Similarly, within the specific terms of the rule, search-and-location operations are permitted, as are the flights of an aircraft salesman, and towing a glider or ultralight. As it relates to this column, FAR 61.113(b) provides that “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.” This is a privilege that is widely used.
This last privilege does not extend to a Sport pilot, as some may have believed. The original proposal to certificate aircraft and airmen for the operation of Light Sport aircraft limited such operations to sport and recreational flying only. What has caused some confusion is that “sport and recreational flying” was not specifically defined in the notice proposing the rulemaking. To obviate this confusion, the final rule came out with a prohibition against acting as pilot in command of a Light Sport aircraft when carrying a passenger or property for compensation or hire, or in the furtherance of business. This aligned the rule with the privileges and limitations of a recreational pilot. A recreational pilot may not act as pilot in command of an aircraft “in furtherance of a business.” Similar provisions are also found in the rules for student pilots.
A recent FAA chief counsel’s interpretation reinforces this prohibition (Interpretation 2012-29). “Flights typically permitted to be carried out by a private pilot under the provisions of Section 61.113(b) [quoted above, incidental to a business or employment] would not be permitted to be engaged in by a person exercising sport pilot privileges.”
FAR 61.315, which specifies the privileges and limitations of a sport pPilot certificate, does allow other privileges similar to the private pilot, as for example, a sport pilot may share the operating expenses of a flight with a passenger (only fuel, oil, airport expenses, or aircraft rental fees), and others, but not flights incidental to a business or employment. AOPA
John S. Yodice is the legal advisor for the AOPA Pilot Protection Services plan. He heads Yodice Associates, a Washington, D.C.-area firm specializing in aviation law.
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