Expert: David A. Lombardo - 1/20/2005

Question
I am trying to find the FAR references regarding the restriction on a part 91 jet operator that disallows the operator from carrying passengers for hire.  What is the reference for these rules?  

On the flip side, I believe that a part 91 jet operator can dry or wet lease his aircraft to an individual or entity, and that individual or entity can legally use the aircraft, IF the part 91 operator does not also provide pilots to the leasee.  That is, the leasee must provide its own pilots for the operation of the jet.   What is the reference for this provision?  

I am sure that your time doesn't allow you to answer all of the questions posed to you, so any assistance or direction that you might be able to offer me is EXTREMELY appreciated.

Jim Miller  

Answer
Dear Jim,

Ah.. ah.. ah.. You're falling into a common trap. You're making the assumption that the Federal Aviation Regulations follow common logic. Shame on you, surely you know better than to make such an assumption!

Joking aside, Subchapter F - Air Traffic and General Operating Rules Part 91 - General Operating and Flight Rules, covers the general operation of an aircraft in U.S. Airspace. It does cover the leasing of aircraft under FAR 91.23 Truth-in-Leasing clause requirement in leases and conditional sales contracts.  You should start there but if you're going to lease an aircraft you'd best get an attorney familiar with aviation law involved. It is not an area of expertise for me so I can't really give you any better advice than to seek an aviation attorney.

With respect to carrying passengers for hire that is found under Part 119 - Certificiation: Air carriers and commercial operators. Under Subpart A - General, 119.1 Applicability you'll find,

"(a) This part applies to each person operating or intending to operate civil aircraft - (1) As an air carrier or commercial operator, or both, in air commerce..."

Charging passengers for transportation is defined by the FAA as a "commercial operation." From that regulation you then go to either FAR Part 121 Operating Requirements: Domestic, Flag, and Supplemental Operations -or- Part 135 Operating Requirements: Commuter and On-Demand Operations as applicable to the specific type of operation you propose to undertake.

One futher word of caution. When I was a budding professional pilot at the University of Illinois in the early 70s, my cohorts and I often bandied about the idea that we could haul passengers around in our little club aircraft by simply charging them the actual cost of renting the aircraft and operating it with no income for us as a pilot.

We believed that the FAA's concept of "sharing the cost of the flight" meant that we paid for our pilot training and the passengers paid for the cost of the aircraft. The idea was to build more flight time by offering really cheap air taxi service.

We were wrong and we didn't get off the ground more than one time. Fortunately, thanks to a very understanding and amiable local FAA inspector, none of us lost anything important nor did we do any hard time.

Subsequently the FAA issued a public letter stating that "shared expenses" meant every individual in the aircraft, including the pilot, paid an equal amount of the operating cost of the flight. The moral of the story is no matter what loophole you may think you've found to circumvent the FARs, it won't work. If you're going to fly passengers for hire you're going to have to have a Part 135 certificate.

I hope this helps you.

Fly safely!

David A. Lombardo