McCoy-AllentownFSDO 2011

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Federal Aviation ·Administration Memorandum

Date: NOV 2 1 2011

To: Eugene P. McCoy, Manager, Allentown FSDO

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Cc: ·

From:

L~~el~~t Standards DiVision, ~A-200 ~c~ ~~rson, Assistant Chief Counsel for Regulations, AGC.-200 Prepared.by: Nancy Sanchez, Attorney, AGC-220

Subject: 14 CFR 91.321 Carriage pf candidates in elections

The following memo is in response to a request for a legal interpretation submitted by Eugene P. McCoy, Manager, Allentown Flight Standards District Office (FSDO). In your request, you posed several questions regarding 14 CFR § 9L321 Carriage of ·.

. candidates in electipns. Specifically, you asked several questions about the definition of a candidate and election cycle, who may act as an agent or person travelling on behalf of a candidate, and the amount of compensation required for carriage of candidates in elections. Background information and responses to your questions follow below. . .

§ 91.321 allows an aircraft operator to receive payment for carrying a candidate, agent of a candidate, or person travelling on behalf of a candidate, running for Federal, State or local election without having to comply with parts 121, 125, or 135, s9 long as several conditions are met. 1 . · · · · Y~u asked several questions about the definition of a candidate, when a candidate "begin(s)-and end(s) their campaign," who iS an "agent or person travelling on behalf of a candidate," and the time frame of an election cycle. It is unclear from your inquiry whether you are referring to a federal, state or local candidate. § 91.32l(b) explains that 1.First, the primary business of the aircraft operator may not be as an air carrier or commercial operator. Second, the aircraft operator must carry the candidate, agent or person travelling on behalf of the candidate under part 91 rules. Third, the aircr3.ft operator may only receive payment for carrying the candidate, agent, or person travelling on behalf of a candidate if required by federal, state or local law and that amount may not exceed the amount required by the applicable law. 14 CFR § 91.32 l(a)

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for federal elections, the terms candidate and election are set °forth in the regulations ()f the Federal Election Commiss~on (FEC) and for state or local elections, the terms are defined·in the applicable state or local law. FEC regulations define the terms candidate and election cycle in 11 CFR § 100.3. Furthermore, 11 CFR § 100.93(a): Travel by aircraft or by other means of transportation, defines the scope of this section as applying ~o all campaign travelers who use non-c~mmercial travel. 2 · .

Additionally, you ask whether the compensation required is "based on a standard amount or does it vary in accordance with aircraft type utilized?" Compensa.tion is determined by the applicable federal, ~tate or local election law, depending on the whether the candidate is rurming for federal, state or local election. See ·11 CFR § 100.93(c) for candidates for federal elections.

The FAA issued § 91.321 to resolve a con:fi.ict between FEC regulations and FAA regulations.3 FEC regulations require candidates and campaign travelers to reimburse aircraft operators without operating certificates when travelling on their aircraft. 4 § 91.321 provides an exception for these aircraft operators to receive compensation from candidates in an· election without being in violation of FAA regulations. However, the general guidelines for travel by candidates and campaign travelers, including how much compensation they are required to pay aircraft operators, are govemed by FEC · regulations or applicable state and local election laws. It is important to note that these regulations are subject to change.5 Candidates and campaign travelers are responsible for applying the appropriate regulations ~oncerning travel by aircraft and should therefore contact appropriate federal, state and local election entities for further guidance and to ensure con:ipliance with their regulations. · In addition to your normal enforcement procedures, if your office or regional counsel has any additional concerns in relation to an aircraft operator inappropriately receiving payment tinder§ 91.321, our office may provide additional guidance. We appreciate your patience and trust that the above responds to your concerns. This response was prepared by Nancy Sanchez, an attorney in the Regulations Division of the Office of the Chief Counsel, and was coordinated with the General Aviation and Commercial Division of Flight Standards. Please contact us at (202) 267-3073" if we can be of further assistance.

2 Campaign traveler means any candidate traveling in connection with an election for Federal office or any individual traveling in connection with an election for Federal office on behalf of a candidate or political committee or any member of the news media traveling with·a candidate. See 11 CFR § I00.93{a){3){i). 3 See 45 Fed. Reg. 43160 · 4 For background information on a recent FEC rulemaking concerning campaign travel, see 74. Fed. R~g. 63951. A copy can be found online at http://www.fec.gov/law/cfr/ej_compilation/2009/notic~_2009- ~~ . .

s For example, the Honest Leadership and Open Gove~ent Act of2007 amended the Federal Election Campaign Act to prohibit Senate and Presidential candidates, and their authorized committees, from spending campaign funds for travel on non-commerc.ial aircraft, unless they pay the charter rate. Previously, candidates had t?een allowed to pay the first-class or coach airfare for the city pair flown.