"September 6, 1990
In Reply Refer To: ACE-7
Mr. David D. Ahlstrand
Dear Mr. Ahlstrand:
Your letter of December 4, 1989, has been referred to this office for
response. You ask whether you must have a commercial pilot certificate for
piloting an aircraft, on behalf of your employer, the Nebraska Public Power
District, or whether a private pilot certificate is sufficient under Federal
Aviation Regulation (FAR) 61.118(a). Based upon the facts you have
presented, it is our opinion that a commercial pilot certificate is
required.
You state that you are a heavy equipment operator on the Lincoln Overhead
Maintenance Crew, which maintains about 800 miles of high voltage
transmission lines in eastern Nebraska. The lines are patrolled on foot once
a year, and also by Aerial Patrol, Inc., five times per year. Additionally,
you state that NPPD employees patrol lines by air when there are unscheduled power outages. You state that if the flights now made by Aerial Patrol, Inc., were conducted by NPPD employees, significant savings to the company and rate payers could result. You ask whether you could perform these flight duties with a private pilot certificate. You state that the flights would include power line patrol, and could involve the carrying of other company employees. You indicate you would be acting in your capacity as an NPPD employee, and the company would pay all expenses. You did not state, but it is assumed, that the company agrees such flights would be under their
general operational control, as opposed to yours as an independent
contractor offering your services to the company. It is also assumed that
you are properly rated to fly the aircraft.
FAR 61.118 generally prohibits a private pilot certificate holder from
flying for compensation or hire. There are certain exceptions, one of which
allows operations for compensation or hire if it is connected with any
business or employment, and if it is only incidental to that business or
employment and the flight or flights do not carry passengers for
compensation or hire.
{p1}
You would be compensated for your operations by performing them in
partial receipt of your salary. Also, your building of flight hours paid by
the company would constitute additional compensation. Therefore, the flights
would be for compensation or hire. Aerial power line patrol operations are a
foreseeable and normal part of the NPPD business, even if relatively
infrequent. Therefore, they are not an incidental, or casual and
unimportant, part of the business. Since your power line patrol operations
would replace those present operations of Aerial Patrol, Inc., the company
would expect you, ********ly or implicitly, to have a pilot certificate to
now do the company's work. Your power line patrol operations would be in
violation of FAR 61.118, and you must have a commercial pilot certificate to
perform them. Moreover, even if the flights were only incidental to your
employment, your flights for compensation would still not fall within the
stated exception if you carried passengers. Further, in order to receive a
power line patrol waiver for flying at low altitudes in certain locations
under specified conditions, a commercial certificate would be required.
It is unclear what other operations your letter contemplates. You
indicate that you would conduct certain other company business flights, paid
for and while employed by the company, and while carrying passengers. This
opinion does not specifically address other than aerial patrol operations.
However, you should be aware that, unless your operations clearly fall
within the specific exceptions to FAR 61.118, such as "sharing the expenses"
or the few others, you must have a commercial pilot certificate. Further, if
you conducted flights for the company, such as carrying company employees,
and the company did not assume operational control of these operations, you
would likely be deemed an independent contractor requiring not only a
commercial certificate, but also a Part 135 operating certificate.
Sincerely,
Timothy C. Titus
Assistant Chief Counse
