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In regard to the question posed here concerning whether “positioning flights” conducted may be conducted under Part 91, which one contributor believes cannot be done, stating that any such flight must be construed to fall under Part 135, that is not consistent with FAA legal interpretations.
The FAA Office of Chief Counsel regularly responds to questions of legal interpretations, issuing letters on a variety of topics useful to pilots. Users may access such legal interpretations at the FAA website: (
http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/RIIndex.cfm),
Or, just google
FAA Home ▸
Offices ▸
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Policy & Adjudication ▸
Regulations.
In particular, the Office of Chief Counsel has provided helpful guidance on this question. In a letter dated January 5, 2011, to Mr. Wesley C. Converse, Director of Flight Operations of Red Wing Aircraft, Rebecca B. MacPherson, Assistant Chief Counsel for Regulations, AGC-200, states clearly that “ 119.1(e)(3) establishes that certain ferry (e.g…“positioning”) flights may be conducted under Part 91. “ Here is a link to the interpretation:
http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2011/converse-redwingaeroplane%20-%20(2011)%20legal%20interpretation.pdf
Not only has the Office of Chief Counsel spoken to the question in the form of an interpretation, but the Administrator has made the very argument in at least one past case. See
FAA Order No. 95-8, May 9, 1995 (Docket Nos. CP93WP005), “In the Matter of Charter Airlines, Inc., James E. Walker, and Larry A. Mort,” at pp. 18-19, stating “Complainant (e.g..the Administrator) also refers to FAA-written interpretations of the relevant regulations to prove that while Section 135.1(b)(3) provides that ferry flights
are not governed by Part 135, ferry flights nonetheless may be considered as other commercial flying under the flight time limitations.” (emphasis added)
What this means is that such flights which are not engaged in common carriage (that is, “carrying passengers or cargo for compensation or hire.” See 14 CFR 119.21(a)(4) and (5) for further explanation) are not in themselves construed to fall under Part 135, and thus may indeed operate under Part 91 for purposes of regulatory compliance (that is, weather minimums, pilot qualifications, etc.). However, the pilot, if being paid for such pilot time, must count the time as “other commercial flight time” for purposes of compliance with flight time limitations. (Such limitations as appear under 135.265 or .267)
But, that is very different from believing an empty, repositioning, or ferry flight must operate under Part 135.
It is not, according to the Office of Chief Counsel.
