Legal Interpretations

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Banner Tow USA asked whether pilots may treat yellow chart areas as congested areas under 14 CFR 91.119 and everything else as non-congested. The FAA said charts and NOTAMs offer only general guidance, since congested area has no regulatory definition and is judged case by case. The pilot remains responsible for maintaining minimum safe altitudes.

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A requester asked whether later owners may use a manufacturer's inspection program as it stood at aircraft delivery under 14 CFR 91.409(f)(3). The FAA said no: each new owner must select the program current at the time of selection, though an unrevised original program remains current. The response was reissued to correct mistaken references to 14 CFR 91.403(f).

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Nevitt Aircraft asked whether a mechanic performing an older, validly adopted manufacturer inspection program may use the maintenance manuals that matched that program. The FAA said yes, because 14 CFR 43.13(a) also allows methods acceptable to the Administrator, unless an Airworthiness Directive or other rule makes the earlier manuals unacceptable.

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Tanabe Flying Services asked whether ash-scattering flights carrying family members at no extra charge could operate as part 91 commercial air tours. The FAA said no: sightseeing is not a purpose of the flights, so they are not commercial air tours, and the passengers are not needed for the scattering, so the aerial work exception does not apply. A part 119 operating certificate is required.

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General Dynamics' chief pilot asked whether a pilot with the runway in sight may descend below DA/DH or MDA when reported RVR is below minimums. The FAA said yes: flight visibility, not RVR, is controlling under 14 CFR 91.175(c), so a pilot who has determined flight visibility and sees the runway may continue, maintaining that visibility until touchdown.

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Kids in Flight asked whether free year-round flights for seriously ill children would be a charitable event under 14 CFR 91.146. The FAA said no, because the rides are not given in exchange for donations. It cautioned that it views compensation broadly: donations tied to flights, or pilot reimbursement for fuel or expenses, would require operating under 14 CFR 91.146 or a 14 CFR part 119 certificate.

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After withdrawing a 2006 interpretation that AOPA challenged, the FAA distinguished "known ice" (ice actually observed or detected on the aircraft) from "known icing conditions" (where a reasonable pilot would expect a substantial likelihood of ice forming, based on all available information). Whether a pilot flew into known icing conditions is fact-specific, and the FAA said it would initiate action to revise the AIM definition, which is not broad enough.

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A pilot who loses two-way radio communications after being assigned a cruising altitude flies the highest of the 14 CFR 91.185(c)(2) altitudes for each route segment, even if an arrival shows mandatory crossing restrictions. Leaving the clearance limit and descending for the approach follow 14 CFR 91.185(c)(3), as close as possible to the expect-further-clearance time, if received, or the estimated time of arrival.

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An attorney asked whether a lessee of a dry-leased aircraft could hire the owner's employed flight crew. The FAA said leasing without crew is a dry lease, but using the owner's crew appears on its face to be a wet lease, which may require the lessor to hold an operating certificate; whether the crew is truly independent is decided case by case.

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A commercial pilot may not accept payment to scatter cremated remains from an experimental aircraft. Although such aerial work does not require a 14 CFR part 135 certificate, the FAA treats carrying the remains as analogous to carrying property, and 14 CFR 91.319(a) bars carrying persons or property for compensation or hire in an experimental aircraft.

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Winstead PC asked whether a corporation may time-share its airplane with a non-corporation and still recover expenses under 14 CFR 91.501(d). The FAA said yes, because "person" in 14 CFR 1.1 includes individuals, partnerships, and other entities. It cautioned that such arrangements raise operational control issues, and the FAA may find either or both parties responsible if they are not truly separate and unrelated.

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A requester asked whether pilots must carry fuel beyond required reserve and alternate amounts. The FAA said that although 14 CFR 91.103(a) does not expressly require it, the pilot in command must add fuel when preflight information shows it is necessary, under part 91 or part 135, and that such extra fuel may be called "contingency fuel" as FAA guidance describes it.

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A requester asked about the 45-minute IFR fuel reserve in 14 CFR 91.167(a). The FAA said no regulation requires an emergency declaration when reserve fuel is used, no regulation sets when to report minimum fuel, and the reserve may be based on normal cruise fuel consumption, considering weather, using accurate data.

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An individual asked whether a non-TSO flight display satisfies 14 CFR 91.205 for IFR in an experimental aircraft. The FAA said 14 CFR 91.205 applies only to standard category aircraft, but amateur-built operating limitations require day VFR after phase I flight testing unless the aircraft is equipped for night or instrument flight in accordance with 14 CFR 91.205. Specific displays were referred to the Flight Standards District Office.

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An individual asked whether a non-TSO electronic flight display approved for IFR in experimental or light-sport aircraft could be installed in a primary category aircraft. The FAA said the installation is a major type design change requiring a supplemental type certificate (14 CFR 21.113, 14 CFR 21.101); approval in experimental aircraft does not carry over, and TSO conformance does not remove the need for FAA approval.

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Seaport Airlines asked whether manufacturer ICA inspections are required for its small Part 135 airplanes kept on the manufacturer's recommended program. The FAA said the airplanes must be inspected under the manufacturer's ICA or another program acceptable to the Administrator, relying on 14 CFR 135.421, 14 CFR 43.13(a), and 14 CFR 43.16.

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BSTC Corporation asked whether it could charge contract specialists for flights to a Russian mine under 14 CFR 91.501(b)(5). The FAA said the carriage appears incidental to BSTC's business, so the rule applies, and charges may cover costs of owning, operating, and maintaining the airplane, including depreciation by one reasonable method, but never a profit.

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Sino Swearingen's chief instructor asked how long the standard 3.3% climb gradient applies on a SID or departure procedure that shows no gradient. The FAA said crews must hold 200 feet per nautical mile, or any higher gradient the procedure specifies, until reaching the MEA.

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Aviation Legal Group, P.A. asked whether a real estate company operating a jet could charge its automotive dealership parent companies for their business travel under 14 CFR 91.501(b)(5). The FAA said no: charges are allowed only for carriage incidental to the operator's own business, and the parents' travel serves their dealership activities, not the operator's real estate business.

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The Air Line Pilots Association asked whether amended 14 CFR 91.703(a)(3) should cite a specific part of ICAO Annex 2 or also cite Annex 11. The FAA said no: the rule refers to all of Annex 2, and Annex 11 governs air traffic service providers, not pilots. Aircraft outside U.S. territory but in airspace under U.S. control are not held to the 250-knot limit below 10,000 feet.

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Australia's Civil Aviation Safety Authority asked how to count seats under the flight recorder rules in 14 CFR 91.609 and 14 CFR 135.152. The FAA said the actual installed seats count; removing seats can avoid the rules, but disabling them cannot. The maintenance rule in 14 CFR 135.411(a)(1) instead uses the type-certificated maximum.

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Womble, Carlyle, Sandridge & Rice asked whether a joint owner's subsidiary could carry its people on a jointly owned airplane. The FAA said no: under a joint ownership agreement, 14 CFR 91.501(b)(6) governs and allows carriage only for the owners' officers, employees, and guests, so the subsidiary would have to become a joint owner.

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An individual asked whether helicopters hover or air taxiing on an airport in controlled surface areas below basic VFR need a special VFR clearance. The FAA found no violation of 14 CFR 91.155, 14 CFR 91.157, or 14 CFR 91.123 in taxiing between positions on the same airport, since such taxiing is a ground operation. Procedures are for the pilot and ATC to settle.

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The FAA's Aircraft Maintenance Division asked whether operators must follow manufacturers' updated maintenance or inspection instructions to comply with 14 CFR 91.409(f)(3). The FAA said no: a program current when adopted stays current unless the FAA mandates changes by airworthiness directive or rule amendment, though operators may, and typically do, incorporate manufacturer revisions.

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An individual asked whether a private pilot flying passengers at a charitable, nonprofit, or community event could be reimbursed for a share of costs such as aircraft rental. The FAA said yes, if the flight fully complies with 14 CFR 91.146: reimbursement may not exceed the pro rata cost of owning, operating, and maintaining the aircraft for that flight.

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A part 135 pilot who accepts and flies a departure procedure the aircraft cannot meet after an engine failure would violate the takeoff limitations in 14 CFR part 135 subpart I, as applied by 14 CFR 91.175(f)(4). Under part 91 or 135, the pilot must preplan for degraded climb performance and engine failure and determine whether the flight is within the aircraft's operating limitations.

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An attorney asked whether parties can convert an interchange agreement into a time sharing agreement, or the reverse, when a different cost formula becomes more favorable. The FAA said no: the regulations contemplate that parties choose one arrangement at the start and keep it to the end, since switching would defeat the distinctions drawn in 14 CFR 91.501.

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Whether a contract pilot can fly a client's leased airplane under part 91 turns on operational control. A true dry lease where the lessee accepts responsibility for the flight and the pilot may qualify, but a package of aircraft and pilot, or a lessee that disclaims liability for the pilot, makes it a compensation or hire operation requiring a 14 CFR part 135 certificate.

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A network of individual private airplane owners cannot use 14 CFR 91.501(b)(5) or an interchange agreement under 14 CFR 91.501(b)(6) to fly each other, because both provisions apply only to companies. The FAA said it does not help design business arrangements to meet those sections.

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A requester asked the FAA to reconsider its view that U.S.-registered aircraft must observe the 250-knot limit below 10,000 feet MSL beyond 12 NM offshore. The FAA kept its position under 14 CFR 91.703(a)(3) and 14 CFR 91.117(a), noting that Annex 11 sets a similar limit, that the rule lets the FAA authorize higher speeds, and that conflicting FAA orders are under review.

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A retired Air Force colonel asked whether IFR fuel planning under 14 CFR 91.167 must cover approaches at both the destination and alternate. The FAA said yes: missed approach fuel at the destination counts as landing fuel, and flying to the alternate includes its approach and landing, since changing weather may force a missed approach at the destination.

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Before entering Class C airspace, a pilot must establish two-way radio communication with the specific facility responsible for it, the TRACON, not just any ATC facility. A VFR pilot who enters while talking only to a Center violates 14 CFR 91.130(c)(1), because flight following is a courtesy and the pilot in command remains responsible.

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A requester asked whether a glider without a transponder may fly at 14,500 feet MSL above Class B airspace. The FAA said 14 CFR 91.215 does not prohibit it, since gliders are excepted above 10,000 feet MSL, but descending below 10,000 feet MSL would violate 14 CFR 91.215, and such flights call for great care around terminal traffic.

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When an IFR flight plan must include an alternate airport, an airport whose approach chart is marked 'NA' for alternate use cannot be listed as the alternate. The FAA answered with Instrument Procedures Handbook guidance rather than a formal interpretation, and noted that alternate information under 14 CFR 91.169(a)(2) is not required when the 14 CFR 91.169(b) exception applies.

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A law firm asked whether its client, an aircraft equipment manufacturer, could charge prospective purchasers for empty positioning legs before demonstration flights. The FAA said yes, and the charges need not be limited to 14 CFR 91.501(d) expenses, because a truly empty leg is not a demonstration under 14 CFR 91.501(b)(3). Higher charges are allowed only if no passengers or property are aboard.

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General Motors asked whether GMAC could keep reimbursing it for flights under 14 CFR 91.501(b)(5) after GM's stake fell below 50 percent. The FAA said the rule requires a true parent-subsidiary relationship and did not decide, because GM had not provided objective evidence that such a relationship would continue.

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The Wicks Group asked whether a U.S. corporation flying a Boeing 737 only in Saudi Arabia could get a part 125 certificate or carry its owner and guests under 14 CFR 91.501(b)(4). The FAA said no: it will not certificate operators based or operating entirely abroad, and a corporation formed solely to provide air transportation needs a commercial operator or air carrier certificate. It offered no advice on Saudi rules.

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A Colombian air taxi operator flying an airplane exclusively for one company between a foreign country and the United States for compensation is a foreign air carrier in common carriage and must operate under 14 CFR part 129, not part 91. The exclusive contract does not separate those flights from its common carriage business.

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A requester asked whether a startup fractional ownership program with one aircraft could operate under part 91 while transitioning to subpart K. The FAA said no: the management company would provide both aircraft and crew, making it a commercial operator under 14 CFR part 119 and 14 CFR part 135 until the program fully meets subpart K and receives management specifications under 14 CFR 91.1015.

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A resident of a private residential airport asked whether a homeowners association rule requiring arriving airplanes to overfly the runway at about 200 feet violates 14 CFR 91.119. The FAA said compliance depends on the facts of each case, so it gave no specific opinion, but noted that only the FAA may restrict aircraft in flight, making such association rules not valid and likely unenforceable.

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A transponder deviation or waiver issued under 14 CFR 91.215(d) is valid. The rule lets ATC authorize deviations for an aircraft without operating Mode C altitude reporting or flying an inoperative transponder to its destination or a repair site (requested any time) and for an aircraft with no transponder (requested at least one hour ahead). The local facility issues them, and its process may vary.

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Aerobatic flight is not permitted anywhere within the Class D or Class E airspace designated for Columbus Airport (BAK), because 14 CFR 91.303(c) prohibits aerobatics within airport surface areas, which extend upward from the surface. A waiver under 14 CFR 91.903 may be available in certain circumstances if obtained before the flight.

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WorldWind Helicopters asked whether pipeline patrols that land to drop inspectors at leak sites and pump stations could be flown under 14 CFR part 91. The FAA's regional counsel said no if the inspectors are carried for compensation or hire: carrying people between places gives the flight a dual purpose, so it is not aerial work and must be conducted under 14 CFR part 135.

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Aspen Aviation asked whether part 97 takeoff minimums for Aspen's Lindz 3 departure bind part 91 flights. The FAA agreed they do not, because the takeoff minimums rule in 14 CFR 91.175(f) covers only operators under parts 121, 125, 127, 129, and 135, but said a category C aircraft cannot fly the Telluride approach, which excludes category C and D aircraft.

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Fred Meyer, Inc. asked whether it could fly golfers to the Fred Meyer Challenge under 14 CFR part 91 in return for a charitable donation in its name or sponsor status. The FAA's regional counsel said both would be compensation or hire, generally requiring 14 CFR part 121 or 14 CFR part 135, unless modified to fit the limited compensation allowed under 14 CFR part 91 subpart F.

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An individual asked whether news media aircraft may enter a temporary flight restriction area without permission. The FAA said accredited news media aircraft may do so if they file a flight plan and stay above the altitude used by disaster relief aircraft; with the on-scene official's authorization, neither condition applies. Entering without meeting either path violates 14 CFR 91.137(c).

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An attorney asked how 14 CFR 91.501(b)(4) applies to companies flying their own people without charge. The FAA's regional counsel said the operator's employees, officials, and property may be carried as its personal transportation, and no separate primary business is required, though air operations that are themselves a major enterprise for profit would appear to be for compensation or hire.

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Holland & Hart asked about two corporations co-leasing a large aircraft, one used solely for an individual's personal flights. The FAA said the personal-use corporation needs no 14 CFR part 135 certificate because the other keeps operational control and the individual is not charged, but the co-lessees cannot use the time-sharing or joint-ownership provisions of 14 CFR 91.501, though they may petition for an exemption.