Transporting Customers Under Part 91

[RichardFitzwell]

I posted this on the General Board first but it probably belongs here. Here's the scenerio...

I am flying Part 135 in a King Air for a company with a fairly large maintenance base. This company frequently has customers fly their aircraft in for maintenance that requires the aircraft to be left for extended periods of time. Often the flight crew need to be transported home while the work is being performed.

Here's the question...can we use a Cessna owned by the company to transport maintenance customers home AT OPERATING COST under part 91? If not, we will need to put the Cessna on the 135 cert. but it doesn't meet icing requirements for IFR so it would be VFR 135 only.

I have read 61.113(c)-ref. "A private pilot may not pay less than the pro rata share of the operating expenses of a flight with passengers, provided the expenses involve only fuel, oil, airport expenditures, or rental fees." and I was told 61.113 applies to any certificate, not just a private pilot.

I have also done a search on this board but haven't found anything directly related to this question. Thanks for your answers.

 

[Groundskprwilly]

In the book FAR's Explained it says that you can't carry people or property for compensation or hire under part 91. I think you need a part 135 cert. It would difficult to explian the operation to the FAA, because the flying is already associated with a business.

The book also says to consult a good lawyer or call the local FAA FISDO.

Regs....

 

[Sctt@NJA]

I don't know for sure if it is legit, but it is a fairly common practice to transport maintenance customers as you are describing. I have done it myself a couple times in the past. I wasn't really clear as to why it was legal, but I had two different employers who asked me to do it and who seemed comfortable with the legality of it.
Apparently it has something to do with the flying being "incidental" to the business. I am sure there must be someone on this board who understands it better than I.

 

[U-I pilot]

Apparently it has something to do with the flying being "incidental" to the business.

This is 61.113(b)(1)&(2): A private pilot may for compensation or hire, act as PIC of an aircraft in connection with any business or employment if: The flight is only incidental to that business or employment AND The aircraft does not carry passengers or property for compensation or hire.

 

[midlifeflyer]

Apparently it has something to do with the flying being "incidental" to the business. I am sure there must be someone on this board who understands it better than I.

Don't bet on it. U-I pilot has the cite, but clarifying exactly what it means is a bit difficult. FWIW, this is my personal FAQ about it.

"Only Incidental to that Business of Employment"

FAR 61.113(b) permits a private pilot to fly for compensation or hire for business or employment purposes if "the flight is only incidental to that business or employment;" Problem is that what is "merely incidental" is not precisely defined.

The FAA could have created a rule that prohibited all compensation for flying without a commercial pilot certificate and a Part 135 operating certificate, and it would have been easy. But the FAA doesn't operate in a total vacuum and from a policy standpoint it's kind of unreasonable to stop people from sharing the costs of a joint trip or getting reimbursed for taking a personal airplane on a business trip rather than an airline, train, bus or car.

Given that policy decision, how would =you= go about phrasing a rule that was less that 1000 pages long, was absolutely clear and covered all of the creative ways that people can find to get around rules they don't like. I'd say it's impossible.

So we end up with 61.113 which permits compensation for a private pilot for a business flight that "is only incidental" to the business. Notice that it doesn't say that this activity is "not" for compensation or hire. The rule recognizes that it is for compensation or hire, but says it's okay.

Let's go back to policy for a moment. Bear in mind the primary policy behind the rule. When the business =is= flying, the FAA wants the higher levels of protection of a commercial certificate and when the business is =public flying= the FAA wants the higher levels of protection afforded by Parts 135 and 121.

The view the FAA has regularly taken is that in order to qualify under the "merely incidental" exception, the activity has to =clearly= be incidental. Close questions will be resolved against the pilot. The FAA will look at and apply a number of different factors, none of which by itself answers the question all the time.

Take that business trip. If if a private pilot decides to fly to a business meeting rather than drive and some of his co-workers say, "Wow, that would be cool! Can we come along?" it's probably okay. Just one of a number of ways of getting there. Usually. But do it when you don't have to be at the meeting, or every month, or have the boss start giving only a 1/2 travel day instead of a full one because of the efficiency of flying, and it's probably no longer "merely incidental".

On the other hand, even a one-shot deal can be enough if you "need" and airplane in order to do the job or if the airplane use is a significant cost center. Aerial photography, pipeline patrols, and using an airplane as one method of delivery of goods for resale are examples where the use =becomes= the business rather than being "merely incidental" to it.

But, because of the nature of the beast (people, not the FAA), unlike some other FARs where there are clear (although sometimes confusing) answers, this is one of those areas that will almost =always= be decided on a case-by-case basis. And there will be anomalies, such as the time that the Alaska FAA Region permitted guides to fly patrons to their lodges on the basis that the flights were "merely incidental". The FAA ended up issuing a special notice to stop that one.

The best description of the analysis comes down to "If it quacks like a duck..." Or another way of putting it might be, if you say to yourself, "Hmm. If I do it =this= way..." you probably =won't= get away with it.

 

[A Squared]

Uhhh, Folks,

Everyone is discussing 61.113 and whether this is *incidental* The thing is, 61.113 and it's provisions are completely irrelevant, unless I completely misunderstand the original question.

61.113 speaks to what a private piliot may or may not get paid for. As far as I can see from the question and the profile of the original poster, a private pilot certificate is not involved.

THe question (as I understand) it is not: "May a private pilot do this and get paid?"

The question is: "May My comnpany do this and accept compensation (bill the customer)?"

That is a completely different question, and has nothing at all to do with 61.113.

The answer to the question lies in Part 119, and in the definitions of "common carriage" and "private carriage"

I don't know the correct answer to this question, but it will never be found by examining 61.113

 

[U-I pilot]

i think you hit the nail on the head.... i was just caught up in the incidental to business stuff and should have caught that....
Asquared gets the the point..... 119 is where it would be...
Now finding it in black and white will be another story...

 

[midlifeflyer]

The question is: "May My company do this and accept compensation (bill the customer)?"

That is a completely different question, and has nothing at all to do with 61.113.

The answer to the question lies in Part 119, and in the definitions of "common carriage" and "private carriage"

Good point!

The difference between the two is even more complicated than "incidental", involving as it does a couple of centuries worth of case law, much of it involving the wonderful phrase "holding out", one of the traditional tests for the difference between "private carriage" and "common carriage". It's use for FAA enforcement purposes is like the "only incidental to a business" test, applied and defined by FAA opinion and case law.

On top of that, we have the problem of a Part 135 operation trying to cut a portion of its activities out of Part 135.

So I'll answer the question with another. While transporting your own employees sure sounds like private carriage, why the heck is a Part 135 company asking this question on an online forum instead of asking it's attorney? There =is= such a thing as "due diligence" after all.

 

[A Squared]

So I'll answer the question with another. While transporting your own employees sure sounds like private carriage, why the heck is a Part 135 company asking this question on an online forum instead of asking it's attorney? There =is= such a thing as "due diligence" after all.

Maybe I'm misunderstanding you, Mark, or I'm misunderstanding the original poster, but I don't think we *are* talking about transporting thier own emplyees, we're talking about transporting customers of thier Mx Shop.

 

[midlifeflyer]

Maybe I'm misunderstanding you, Mark, or I'm misunderstanding the original poster, but I don't think we *are* talking about transporting thier own emplyees, we're talking about transporting customers of thier Mx Shop.

I think you're right. But I'm not sure. The references to "crew" and "customers" is making it a bit difficult to read.

Let's see if I can figure out the question:

ABC Flight Company is a 135 operator. XYZ Airframe Inc is a maintenance shop. Due to locations, from time to time, ABC's employees have to fly an ABC airplane to XYZ for maintenance.

Can the maintenance shop fly the ABC employees back home for a fee without a 135 certificate?

Does that sound about right?