Incidental to business, private pilot??

RPM

RPM

Well-Known Member
I came across this question below on another board. Can someone clearly define to me exactly what ''incidental to business is" It seems like there could be different interpretations...and is this scenario below legal? I've attached far 61.113 that applies to the situation.
Sec. 61.113

Private pilot privileges and limitations: Pilot in command.

(a) Except as provided in paragraphs (b) through (g) of this section, 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 of an aircraft.
(b) 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.

*** here is the guys question:
"I had always thought that one cannot be directly paid as a pilot to fly with only a private license. After talking with some instructors at my airport they had said that this is not necessarily true. One instructor gave me a scenario of a pilot he had trained a while back, that worked for a company and his primary job was not as a pilot for the company, but he started flying some of the execs around which eventually he started doing quite often. He was paid the same hourly rate to fly the execs as he made doing whatever he did for the company when he was not flying. I know that one can fly for business if the flying part is incidental to the business. I would think being paid to fly people as part of one’s job duties would require a commercial certificate. The instructor I talked to said that this pilot was not breaking any rules because he was not being paid more during the times he was flying than when he was performing his other duties. I took that to mean he wasn’t actually being paid as a pilot, but one of his job duties was being a pilot. My question still is whether this is legal or not."

....so can he legally do this and accept compensation without paying the usual pro-rata share...i'm confused
insane.gif
 
This, like the "is it 135?" question, is very hard to come down on one side or the other definitively. A lot of the answer depends on the details of each individual case.

First, "incidental to business" is when the transportation of the passengers is not an end in itself and the company is not trying to be in the business of transporting passengers and make money off that transportation. If the transportation of the passengers merely supports and facilitates the business venture, then it is incidental.

"Incidental to employment", likewise, means so long as flying is not the reason for his employment, and only supports and/or facilitates his job / business.

This is where it becomes a "case by case" issue. In an investigation, the FAA would likely look at things such as what percentage of an employee's time is spent in flying, whether he is paid differently or separately for his flying, his job description, etc etc.

You bring up some important points in your post. I would have thought that if an employee is flying himself and/or others somewhere because they all have a meeting together that they need to get to, then that's ok. Now, if one employee flies a group of other colleagues somewhere, but has no reason to be there himself other than to fly them, that's not really incidental to his employment. That's quite a conservative viewpoint, but often the FAA goes for the more conservative viewpoint. You also mention that this guy has ended up flying these execs around quite often. I would say that those two things combined could spike the interest of the local feds iof they ever found out. I don't think that just because he is getting paid the same makes it ok regardless of the other evidence. I think it requires a look at more than just pay.

Ray
 
[ QUOTE ]

....so can he legally do this and accept compensation without paying the usual pro-rata share...i'm confused
insane.gif


[/ QUOTE ]

Heck no!!! If his job duties include flying folks in the company around, he's being paid to fly those people around!!! That, my friend, requires a commercial ticket.

Now, if he sells insurance, and he uses the plane to go visit clients, well, that's incidental.
 
[ QUOTE ]
Heck no!!! If his job duties include flying folks in the company around, he's being paid to fly those people around!!! That, my friend, requires a commercial ticket.


[/ QUOTE ]

Initially, I thought the same thing too...NO way without a commercial!

but looking at it more...the aircraft is not carrying passengers or property for hire, and it could be viewed as incidental I guess if the guy needed to be at the mettings also, and being a pilot is not his actual job at the company.....the reg. clearly states he can fly for compensation so long as its incidental. I agree with Raysalmon though, this definataly would be questionable with the FAA.

I don't really understand why the reg. is this way, why could you fly for compensation or hire for your business if its incidental, but you have to have either a commercial or pay pro-rata for anything else...pretty stupid if you ask me! Now...If you could fly for your business as a Private and not be compensated, I could understand that.

It looks like a pretty grey area to me...personally, I wouldn't do it without a commercial, but I think it may be legal depending on the interpretation.

anyone else have an opinion?
insane.gif
 
Okay, bored, so I'll chime in. I do have some experience in the business use of an aircraft incidental to business (although I was an ATP at the time). 61.113(a) sets the tone: pvt. pilot may not act as PIC for compensation or hire. While the private pilot in posted hypothetical is not receiving "additional" compensation for flying, sounds as if flying is one of the things he is being compensated to perform (hypo suggests he has flying and non-flying duties). If he is being paid to conduct business at Point B, and his flying merely gets him from Point A to Point B, it's okay, as he has to get to Point B somehow. If, however, only his passengers are getting paid to conduct business at Point B, then he is in effect being paid for the time he flies them there and therefore is being paid to fly them there. Aside from FARs, I always like to raise insurance and liability concerns, too. Also, what legit operation would want its execs being flown around by an employee who also happens to have a private license, and what execs would want to be flown around by him? Who owns the plane? This is a great liability and insurance hypo, too. Anyway, the guy in your hypo and/or the employer could eventually need legal counsel...
 
I have re-read the original hypothetical. So, he is being paid an hourly rate while he flies these "execs" around? I think that makes it even more of a problem. Doesn't matter if it's the same hourly rate as non-flying. I thought he was on a salary.
And I don't think the reg is stupid. Maybe it could be better or more clearly written, but I think the basic premise is sound: that a private pilot may not act as PIC for compensation or hire. But may use a/c for personal transport or for transport incidental to business/employment, and may share costs with passengers.
I already had ATP, but I flew around to some depositions and court appearances in employer-owned a/c. Employer was a law office and I was paid monthly lawyer salary and bonuses were paid on a case by case basis. No pay attributable to flying. A/c used simply for occasional transport and to enhance productivity. (And maybe some entertainment, but that's for another thread...)
 
[ QUOTE ]
I don't really understand why the reg. is this way, why could you fly for compensation or hire for your business if its incidental, but you have to have either a commercial or pay pro-rata for anything else...pretty stupid if you ask me!

[/ QUOTE ] Maybe my personal FAQ will give this reg some context:

==============================
What is "Only Incidental" to a Business or Employment?

FAR 61.113(b) tells us "A private pilot may, for compensation or hire, act as pilot in command of an aircraft in connection with any business or employment if ... The flight is only incidental to that business or employment"

The phrase marks a very fuzzy border between operations permitted with a private pilot certificate and operation that require a commercial certificate. If you think about all the ways that "clever" people try to get around regulation, the FAA =had to= use some phrase that was open to interpretation.

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 than 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 or the pilot is being employed as a pilot, 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.
 
[ QUOTE ]
"I had always thought that one cannot be directly paid as a pilot to fly with only a private license. After talking with some instructors at my airport they had said that this is not necessarily true. One instructor gave me a scenario of a pilot he had trained a while back, that worked for a company and his primary job was not as a pilot for the company, but he started flying some of the execs around which eventually he started doing quite often. He was paid the same hourly rate to fly the execs as he made doing whatever he did for the company when he was not flying. I know that one can fly for business if the flying part is incidental to the business. I would think being paid to fly people as part of one’s job duties would require a commercial certificate. The instructor I talked to said that this pilot was not breaking any rules because he was not being paid more during the times he was flying than when he was performing his other duties. I took that to mean he wasn’t actually being paid as a pilot, but one of his job duties was being a pilot. My question still is whether this is legal or not."

[/ QUOTE ]


This is in the grey area between private and comercial. Diffrent people (and more importantly FAA guys) could interpert it either way.

My personal view is if you are getting paid to fly someone else then you need your CPL. The scenerio you desribed had the pilot flying as part of his job description.

If you just happen to be flying instead of driving (or taking the airlines), then you are ok. Even if your company pays extra for the plane.
 
You must log in or register to reply here.
Back
Top