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Legal considerations for volunteer pilots

Editor's note: This article was updated July 22 to provide additional background on federal law concerning volunteer pilots operating charitable medical flights.

In the wake of the recent U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, AOPA has been made aware of some pilots’ interest in volunteering to fly individuals seeking abortions and other medical procedures. While we all know that the FAA is the arbiter of all things aviation, state and local laws can also impact your decision to donate your time and aircraft in support of a cause in which you believe.

For example, several states have adopted or are actively working to adopt laws that act to criminalize or create a civil cause of action against any person aiding or abetting in the performance or inducement of an abortion, perhaps even for activities that occur out of state. Given the rapidly shifting legal landscape, it is unclear what, if any, state law implications exist for pilots considering volunteering their time in such an operation, but the point remains valid—you must consider federal, state, and local laws as well as any particular FAA requirements before conducting a volunteer flight.

In addition to the exposure directly related to the violation of any laws and regulations, if you fail to consider state law implications, you could be jeopardizing your aircraft insurance coverage.

Now, let’s review what the FAA has to say on volunteer flying.

The FAA regulates nearly every aspect of flying and strictly applies its rules and regulations, even for flights conducted by volunteer pilots flying their own aircraft.

Section 1.1 of the federal aviation regulations defines a “commercial operator” as “a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property.” The FAA construes “compensation or hire” in very broad terms. Compensation or hire does not require a profit, a profit motive, or the actual exchange of funds. Rather, the receipt of anything of value is considered compensation, including the ability to log flight time for free or at a reduced cost, the reimbursement of fuel or any other operating expense, or expense-sharing with any passenger.

Unless a specific exception is met, a commercial operation generally cannot be conducted under FAR Part 91 and instead requires an air carrier certificate or operating certificate issued under Part 119. Therefore, for a volunteer flight involving the transportation of persons or property to be conducted under Part 91, the pilot must pay for every dollar of the operation, without any financial assistance whatsoever from a volunteer pilot organization, crowdfunding platform, or any other source.

This is true regardless of the pilot certificates held. Recall that the FAA differentiates between an airman’s piloting privileges and the operational authority to conduct a flight. Even if you can legally receive compensation for the carriage of persons or property under the privileges associated with your pilot certificate, any flight involving the carriage of persons or property for compensation or hire must also meet the FAA’s operational requirements. Again, for most volunteer flights, which routinely involve the carriage of persons or property, this generally means the flight cannot be operated under Part 91 when compensation is involved.

However, there are two instances in which the FAA may allow the receipt of compensation for volunteer flying involving transportation of persons or property under Part 91. First, volunteer pilots are allowed to take a tax deduction for the direct cost of the volunteer flight so long as the pilot pays for all flight expenses and no other compensation or reimbursement is involved. While the FAA still considers a tax deduction to be a form of compensation and, therefore, the flight to be a commercial operation, the FAA issued a nonenforcement policy in 1993 stating that the FAA will not treat the deduction of certain costs associated with charitable acts, standing alone, as compensation or hire.

Additionally, some volunteer pilot organizations have received exemptions from the FARs concerning reimbursement of fuel expenses in the case of non-emergency medical flights. The FAA’s position is that these exemptions remain necessary, despite a clarification in the FAA Modernization and Reform Act of 2012 that directed the FAA to “allow an aircraft owner or operator to accept reimbursement from a volunteer pilot organization for the fuel costs associated with a flight operation to provide transportation for an individual or organ for medical purposes (and for other associated individuals).” Although the law provided that the FAA could impose minimum standards for safety, the FAA issued a policy clarification advising it would continue to require exemptions issued pursuant to Part 11 on a case-by-case basis, just as it did prior to the law’s enactment.

Based on this proposition, before accepting fuel reimbursement for volunteer flying, pilots should ensure that the volunteer pilot organization has a valid exemption and that all conditions and limitations of the exemption are followed.

For volunteer organizations owning their own aircraft and transporting persons or property, the organization must hold an air carrier or operator certificate and the pilot must be listed on the certificate or the FAA may consider the operation to be an illegal charter flight.

Regardless of the type of operation, it is important for all volunteer pilots to carefully consider the varying issues associated with donating their time, and if necessary, consult with an experienced aviation attorney.

photos of AOPA employee Ian Arendt
Ian Arendt
Ian Arendt is an in-house attorney with AOPA’s Legal Services Plan. He provides initial consultations to aircraft owners and pilots facing aviation related legal issues through the LSP. Ian is a private pilot and aircraft owner. The AOPA Legal Services plan is offered as part of AOPA’s Pilot Protection Services.
Topics: Pilot Protection Services, Public Benefit Flying

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