Friday, August 22, 2014

Part 3 - Regulatory failure

In the current regulations, attempts to develop bright line tests to distinguish between private and commercial operations have been devised by first defining commercial operations explicitly and prescribing rules to govern them, and secondly by constructing a perimeter of restrictive regulations around private pilot privileges to prevent excursions of private operations into the realm of commercial activity.
It is the perimeter of restrictions on private pilot privileges that have missed the mark and the result is a Byzantine regulatory regime that unnecessarily infringes upon the citizens’ “public right of transit through the navigable airspace” as guaranteed by public law [49 USC 40103 (a)(2)]. Such regulations are also contrary to the mandate of Congress to the FAA to “encourage the development of civil aeronautics” in accordance with 49 USC § 40104 (a).
In the nation that is the birthplace of aviation it is truly an outrage, and clearly not in the public interest, nor certainly not in accordance with the public will as expressed by the intent of Congress in the public laws, to proscribe by regulation the explicit right of citizens to “transit through the navigable airspace” in privately owned conveyance for private benefit. Yet, this is precisely the state that has evolved under the current regulations and the administrative doctrines that have emanated from them in the form of legal opinion from the office of the FAA General Counsel.
If we could lift this proscription there is no doubt that employers and small business owners nationwide would dramatically and immediately use more general aviation. More GA flying would lead to more business for FBOs, maintenance shops, flight schools, aircraft and parts manufacturers, aircraft dealers, and of course the users directly. In short, more GA flying equals more economic prosperity for the nation. More fuel consumption also means more taxes collected for the government coffers.
The fountainhead of these fetters is the proscription on private pilots enumerated in 14 CFR 61.113(b)(2):
Code of Federal Regulations
Title 14: Aeronautics and Space
CHAPTER I: FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (CONTINUED)
SUBCHAPTER D: AIRMEN
PART 61: CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND INSTRUCTORS
Subpart E: Private Pilots
61.113 - Private pilot privileges and limitations: Pilot in command.
(a) Except as provided in paragraphs (b) through (h) 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.
A clue to how logically deficient is this regulation is the fact that it begins in paragraph (a) with an exception to a proscription that is again proscribed in (b)(2). The practical result is that private pilots who wish to use their private property for private benefit in operations that are incidental to their business or employment are denied the right of reimbursement for such use.
Aside from the logical fallacy of this construction, there is a whole host of situations that can be easily conceived in which this restriction on the liberty of an airman is clearly arbitrary and capricious. A simple example is that a private pilot who uses their own airplane to travel on business cannot be reimbursed for use of their private property in an operation that is incidental to their business or employment if they are accompanied by a member of their own family!
Another absurd and arbitrary aspect of this regulation is that the office of the FAA General Counsel has over the years developed a laundry list of items that constitute “compensation”, including the acquisition of “good will” and the mere act of recording pilot in command time in the airman’s log book. Any private pilot who the FAA determines has earned “compensation” while carrying passengers is subject to fines and loss of license. It is a real and tangible example of the enforcement of “thought” crimes.
Imagine if the IRS announced that no reimbursement for the use of a private vehicle would be allowed if the driver carried a passenger or some property on a road trip in which the use of the personally owned vehicle was incidental to the business at hand. And yet we in the general aviation community have accepted this very same absurdity to be imposed on our liberty to use our own private property for private benefit.
There are more than 200,000 private pilots in the United States who have no desire whatsoever to operate commercially so why should we arbitrarily deny them the freedom to use their private property for private benefit?
In contrast, imagine a situation where private pilots who own or rent airplanes, would be allowed reimbursement for expenses related to incidental use of their airplanes for private benefit in connection to business, in the same manner as all citizens are allowed reimbursement for the use of their privately owned land vehicles.
We are not talking about revenue generation here, just reimbursement of actual expenses. If such reimbursement was allowed, we know from the use of private vehicles that employers and small business owners across the nation would immediately and dramatically step up to the use of general aviation for private use and this vast aviation infrastructure that our forebears have built over a century will finally be given a chance to realize its full economic potential for the benefit of the entire nation.
It is truly an outrage that the most developed aviation infrastructure in the world, in this, the nation that gave birth to aviation, should be so monumentally squandered on the whim of unelected bureaucrats who have neither sense of the history nor vision of the aviation pioneers who sacrificed so much to build it.

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