UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

Federal Aviation Administration, ) 

) 

Complainant, ) FAA Docket No CP08WP0004 

) 

) (Civil Penalty Action) 

) 

Sun Quest Executive Air Charter, Inc. ) 

) 

Respondent. ) DMS No. FAA-2008-0238 

) 

Complainant's Supplemental Brief in Response to the 

Order Requesting Further Briefmg 

Pursuant to the Order Requesting Further Briefing, served on January 5, 2011, 

Complainant submits this Supplemental Brief. 

Whether the definition of "other commercial flying" should be changed in view of 

possible changed circumstances or in view of changes in the statutory definition of 

"public aircraft"? 

Summary 

It is Complainant's position that, at least in the context of this case, the 

Decisionmaker should not take action to broaden the definition of "other commercial 

flying" to include public aircraft operations in addition to military flying.l First, as 

explained in the Complainant's appeal brief, there is no evidence that Mr. Smith's flights 

for the Los Angeles Police Department were public aircraft operations. Second, the 

1 Complainant presumes that the Decisioumaker is not contemplating redefining by adjudication "other 

commercial flying" to include military flying because that could have no benefit for Respondent. But even 

if such a change was under consideration, it would need to be made following notice-and-comment 

rulemaking, as we argue below; moreover, apart from any legal requirement, it would be prudent to use that 

vehicle to make such a change. 
2 

differing treatment for military flying can be traced back to 1926 when Congress drew 

distinctions between military and other public aircraft operations. Third, changes in the 

statutory definition of "public aircraft" do not support expanding the scope of exceptions 

to "other commercial flying" to public aircraft operations beyond military operations. 

Fourth, such an expansion appears to be inconsistent with the recent notice of proposed 

rulemaking issued by the agency on the issue of flight and duty time requirements. Fifth, 

under the Administrative Procedure Act, a change to the long-standing interpretation of 

"other commercial flying" would require notice-and-comment rulemaking. 

Discussion 

1. The Legislative History Lends Support to the FAA's Longstanding Interpretation That 

"Military Flying" is the Only Type of Direct, or By Contract, Governmental Flying That 

Need Not be Counted as Flight Time for Purposes of Determining Compliance with 

Flight Time Limitations in Part 121 or Part 135 Operations. 

A. The Legal Underpinnings For Not Counting Military Flying as "Other 

Commercial Flying" Are Based On a Long History of Treating Military 

Flying Differently From Other Flying, Including Other Types of Public 

Aircraft Flying. 

As early as 1926 Congress carved out exceptions for U.S. military aviation 

operations to allow such operations more leeway and less regulation than would 

otherwise apply to other public aircraft operations and civil aircraft operations. 

The term "public aircraft" was used in the Air Commerce Act of 1926. Under 

Section. 9( d) of that Act "public aircraft" was defined as " ... an aircraft used exclusively 

in the governmental service." Pub. Law No. 69-254, 44 Stat. 568. See Attachment 1. As 
3 

the Conference Report accompanying the Act explains: 

. Public Aircraft.--Under the Senate bill public aircraft were exempt from all the 

regulatory interstate and foreign commerce requirements of the act. Under the 

House amendment public aircraft were exempt in respect of all navigation from 

the requirements as to the airworthiness and the rating ofthe airmen, but not from 

air traffic rules upon civil airways nor from registration. Under the substitute 

public aircraft of the Federal Government are exempt from the airworthiness 

requirements and the regulations as to the rating of airmen, unless such aircraft 

are voluntarily registered; but public aircraft of the Federal Government are not 

exempt from the air traffic rules, except in so far as the Secretary of War has 

control over exclusive military aircraft upon military airways. 

H.R. Rep. No. 1162, 69th Cong., 1st Sess (1926), reprinted in Civil Aeronautics, 

Legislative History of the Air Commerce Act of 1926 at 50. See Attachment 1. 

Thus, it appears that as early as 1926, Congress identified military operations as 

being so important and different that special exceptions would be provided -- not only 

from laws that would apply to civil aircraft operations, but even additional exceptions 

beyond those afforded to other types of "public aircraft"· operations. Hence, other 

Federal or State "public aircraft" operations would have to follow air traffic rules without 

exception, whereas military operators could be excused "in so far as the Secretary of War 

has control over exclusive military aircraft upon military airways.,,2 

In 1942, Congress enacted a law to increase the monthly maximum number of 

flying hours of air carrier pilots, as limited by the Civil Aei:onautics Act of 1938, because 

of the military needs arising out of World War II. See Pub.L. 77-535 (1942). See 

Attachment 2. Part of the legislative history for the Public Law, includes the following: 

The purpose of this bill is to extend the maximum flying time to 100 hours [from 

the then-current 85-hour limit] per month. The Civil Aeronautics Board will 

have the power to shorten such time when the maximum is not required by 

military needs. It will also have power to authorize such flight in excess of such 

2 As previously discussed in Complainant's Appeal Brief at pp. 11-12, by 1958 Congress decided to vest in 

!be FAA the plenary authority for managing aircraft operations in the national airspace system, in part 

because it was not clear who, i.e., a particular civilian agency or the military had authority over air traffic, 

airspace, and other aviation safety issues. The chaos led to aviation accidents, including midair collisions. 
maximum to the extent necessary to complete a particular flight for military 

purposes. 

The act is temporary in its operation and will terminate 6 months after the end of 

the war, or at such earlier time as Congress, by concurrent resolution or the 

President may designate. ' 

The immediate effect of the legislation will be to increase the available air pilot 

manpower for civilian and military air transportation. The increased flying time 

will add the service equal to that now given by three or four hundred experienced 

trained pilots. 

The Secretary of War states: 

4 

It is appreciated, in this connection, that continued uninterrupted service by 

domestic air lines is essential in the interests of national security. The purpose of 

the proposed legislation is to make it possible to utilize the services of 

experienced air-line pilots in the Army and Navy without interrupting domestic 

air-line schedules. 

H.R. Rep No. 77-1944, to accompany House Bill HR 6799, March 24,1942. See 

Attachment 2. 

Furthermore, the legislative history notes that the Air Line Pilots Association supported 

the bill and stated: 

The pilots feel that they want to do what they can for their country in its hour of 

dire need. * * * We are willing to defer the effects of the 85-hour limitation and 

to fly with no limitation on flights that are purely for military purposes for the 

duration of the present war. 

On April 10, 1942, a hearing was held before a subcommittee of the Senate 

Commerce Committee on this bill. Captain Behncke, President of the Air Line Pilots 

Association, stated the following: 

* * * However, all this notwithstanding, the pilots are ready and willing to do 

whatever they can to help our Commander in Chief, the President, further the war 

effort, and therefore, we are willing to agree to defer the effects of the 85-hour 

limitation and to fly with no limitation to complete particular flights that are 

purely military "must" flights for the duration of the present war. Obviously, the 
pilots do not wish to see any of these extra flying hours used for private profit, 

and it is with these understandings that I have just outlined that we give our 

endorsement to bill H.R. 6799. 

See Attaclnnent 2. 

From this legislative history, it appears that Congress recognized that because so 

5 

many experienced professional airline pilots were going into the military service, that the 

domestic civil aviation airline industry would be severely affected with a manpower 

shortage, unless the remaining airline pilots were permitted to increase the number of 

commercial hours from 85 hours to 100 hours per month. Thus, everyone who traveled 

on U.S. air carriers would have pilots limited to 100 hours per month rather than 85 

hours. Congress accepted the public interest tradeoff that in exchange for some increased 

risk to airline passengers and airline pilots from possibly increased fatigue by air carrier3 

pilots during World War II, the public interest ofthe people of the United States of 

America would be potentially advanced by maintaining the viability of the air carrier 

industry that was experiencing a depletion of available pilots. 

The law also authorized air carriers and their pilots to exceed the new 1 DO-hour 

per month flight time limit, but only for military-purpose flights. Again, Congress 

accepted a public interest tradeoff: in exchange for furthering the nation's military goals 

(perhaps by transporting troops or materiel on air carrier aircraft), the air carriers and 

their pilots exposed themselves to additional cumulative fatigue risks beyond the 100-

3 Throughout this brief Complainant refers to "air carriers." However, because parts 121 and 135 apply to 

air carriers (i.e., those engaged in "air transportation") and other commercial operators (as defined in 14 

C.F.R. part 1), it should be understood that the "other commercial flying" language and the flight time 

limitations of both parts 121 and 135 apply to those wholthat operate under parts 121 or 135 regardless of 

whether they are air carriers or other commercial operators. Thus, for example, a part 135 common carrier 

engaged in wholly intrastate operations in Alaska that does not cany the U.S. mail, is not an "air carrier," 

but is instead a "commercial operator." Nonetheless, it too is bound by the flight time limitations of part 

135, including the rules that require the pilots and the part 135 operator to count "other commercial flying" 

when determining whether a pilot is at, near, or over any part 135 flight time limitation. 
6 

hour per month flight time limits. Thus, the purpose for an air carrier pilot accumulating 

more flight time beyond the new, but temporary, 1 OO-hour per month limit would be to 

advance the national security interests of the United States. Exceeding the 100-hour per 

month limit, would not -- as ALP A President Behncke testified - be used "for private 

profit" and thus, air carriers could not make their pilots exceed 100-hours in a month on 

flight unrelated to the military's war efforts. 

On September 16, 1942, the Civil Aeronautics Board amended its rules to meet 

the statutory provisions of Pub. L. 77-535. See, 7 Fed. Reg. 7478 (September 23,1942). 

The CAB, among other things, inserted the following paragraphs (d) and (e) into then 

new section 61.518 of Title 14 of the Code of Federal Regulations: 

(d) A pilot shall not fly in scheduled air transportation services as a member of 

the crew more than 100 hours in anyone month: Provided, That the 

Administrator is authorized, during the present war and until 6 months after 

the termination thereof, to permit the maximum of 100 hours to be exceeded 

to the extent necessary to complete a particular flight for the military. 

( e) A pilot shall not fly in scheduled air transportation service as a member of 

the crew more than 1,000 hours in anyone calendar year: Provided, That 

this limitation shall not be effective during the present war and until 6 

. months after the termination thereof, and that during this period the 

maximum flying hours permitted in anyone calendar year shall be controlled 

by the provisions of paragraph (d) of this section. 

See Attachment 3. 

By 1948 the flight time limitations continued to have an exception to the monthly 

and annual flight time limitations in order to complete a particular flight for the military. 

The regulations provided, in part, the following in 14 C.F.R. § 41.54: 

(d) A pilot shall not fly as a member of the crew more than 100 hours during any 

one month: Provided, that the Administrator is authorized, during the present war 

and until 6 months after the termination thereof, to permit the maximum of 100 

hours to be exceeded to the extent necessary to complete a particular flight for 

military purposes. 
7 

(e) A pilot shall not fly as a member of the crew more than 1,000 hours in any 12-

month period: Provided, That this limitation will not be effective during the 

present war and until 6 months after the termination thereof, and that during this 

period the maximum flying hours permitted in any 12-month period will be 

controlled by the provisions of paragraph (d) of this section. 

See also, 14 C.F .R. §6l.117. (1949). See Attachment 4. 

The special treatment Congress accorded military flying serves as the 

underpinning for the agency's interpretation - in existence for decades -- excepting 

military flying from "other commercial flying." 

B. Changes to the definition of "public aircraft" do not support expanding 

the exceptions to "other commercial flying" beyond the military 

exception in the context of this litigation. 

As the Order Requesting Further Briefing points out, there have been several 

changes to the definition of "public aircraft" over the years. None of these changes, 

however, would seem to justify an expansion of the exceptions to "other commercial 

flying" beyond military flying. Indeed, among the changes has been a contraction of 

"public aircraft" status in regard to flights carrying U. S. military personnel. That 

contraction can be demonstrated by applying the different statutes defming and relating to 

"public aircraft" to determine whether an air carrier under contract to the Department of 

Defense (DOD) to carry a planeload of U.S. soldier-passengers is a public aircraft. 

In 1991, the statutory defmition of "public aircraft" was: 

"any aircraft used exclusively in the service of any government or any 

political subdivision thereof, including the government of any State, 

Territory, or possession of the United States, or the District of Columbia, 

but not including any government-owned aircraft engaged in carrying 

persons or property for commercial purposes. For purposes of this 

paragraph 'used exclusively in the service of means, for other than the 

Federal Govemment, an aircraft which is owned and operated by a 

governmental entity for other than commercial purposes or which is 
exclusively leased by such a governmental entity for not less than 90 

continuous days." 

Section 101(a)(36) of the Federal Aviation Act of1958, as amended and as it existed in 

1991. 49 U.S.C. App. § 1301(a)(36) (1991). 

Applying that defInition, if an aircraft was engaged in the exclusive use of the 

U.S. Goverrunent -- even for one flight -- then it was a public aircraft. For states and 

local goverrunents, the exclusive use had to be for at least 90 continuous days. 

In October 9,1994, Congress passed the Independent Safety Board Act 

Amendments of 1994. Pub. 1.103-411. The President signed this Act into law on 

October 25,1994. This law changed the defmition of "public aircraft," as explained in 

Complainant's Appeal Brief at pages 18-21. But those changes to the public aircraft 

8 

definition did not change the exclusive use provisions for the U.S. Government. Carrying 

forward the U.S. Government exclusive-use provisions resulted in public aircraft status 

for any air carrier aircraft transporting a planeload of U.S. soldiers from New York to Los 

Angeles under contract to the military. Thus, none of the part 121 or part 135 rules 

would have applied (since all of those rules apply only to civil aircraft operations). Thus, 

no FAA flight, duty or rest rules would have applied to such a flight. The definition of 

public aircraft, in 1995, was recodified at 49 U.S.C. § 40102(a)(37). See Attachment 5. 

By 2001, a change was made to the public aircraft definition and a new section 

was added to the U.S. Code. Both changes fundamentally altered the U.S. Government 

exclusive-use provision in the public aircraft definition, at least insofar as aircraft 

chartered to the U.S. Armed Forces. See Attachment 6 for a copy of 49 

U.S.C §§ 40102(a)(37) and 40125 (2001). As noted above, before this law, the aircraft 

chartered by the DOD to transport troops from New York to Los Angeles, would have 
9 

had public aircraft status. Under the new law, however, such a flight would have civil 

aircraft status unless the Secretary of Defense designated that operation as being in the 

national interest. The interesting thing about that change is this: Two hundred soldiers 

could be on an air carrier aircraft chartered by DOD to transport them from New York to. 

Los Angeles, and that flight would have "civil aircraft" status. Because that flight would 

be conducted for compensation or hire, that flight would be governed by part 121. If it 

were a smaller aircraft, carrying only 9 soldiers, that flight would be a "civil aircraft" 

flight by the air carrier and would have been governed by part 135. Notably, these 

changes in the law resulted in the imposition of part 121 or 135 safety rules to snch 

flights chartered to the DOD, including all of the flight, duty, and rest rules of those parts 

which formerly did not apply to aircraft that were "exclusively used," for example, under 

contract to the military. Interestingly, despite that sweeping change that resulted in the 

imposition and the applicability of scores of FAA safety rules to flights chartered by the 

military, if one or both of the air carrier pilots was a U.S. military reserve pilot, none of 

the "military flying" that those pilots did would be counted in the calculation of flight 

time for purposes of flight time limits. But, significantly, all of the look-back rest 

requirements and other safety requirements in parts 121 and 135 would apply -- even to 

air carrier pilots who were military reserve pilots and occasionally accumulated military 

flying. 

Today, those two sections of Title 49 of the U.S. Code reflect additional changes. 

The newest changes seem to capture -- as "civil aircraft"-- additional contractual 

arrangements between the military and private operators. See especially paragraph (E) to 
10 

the new definition of "public aircraft" in 49 U.S.C. § 40102(a)(41)(E).4 In other words, 

the new law changed from ''public aircraft" status to "civil aircraft" status, many 

nontransport aviation contracts with the military that formerly had ''public aircraft" 

status. The new law added "other commercial air services" to the definition of public 

aircraft in 49 U.S.C. § 40102(a)(41)(E) and when read together with 49 U.S.C. 

§ 40125(c)(I)(C) meant that many other types of aviation services provided to the 

military would have "civil aircraft" status as long as certain statutory conditions were met 

and as long as the Secretary of Defense did not designate such an operation as needing to 

have "public aircraft" status in the national interest. Thus, for example, if the military 

contracted with a private sector company to provide elementary parachute-jump training 

to soldiers, those operations would have "civil aircraft" status as long as the operations 

were conducted in the U.S., such training was available to the public at large for 

compensation or hire, and such operations must comply with all applicable civil aircraft 

rules. Before that change in the law, such nontransport contracts with the military would 

have come under the still-existent "exclusive use" concepts (now worded as "aircraft 

used only for the United States Government" -- see 49 U.S.C. § 40102(a)(41)(A)) -- and 

would have been public aircraft operations. 

Many different implications could be drawn from these changes to the law that 

narrowed situations in which DOD contractors would be permitted to conduct operations 

as "public aircraft." The net effect is that, absent a critical national interest need declared 

by the Secretary of Defense, Congress has decided that military personnel transported on 

aircraft chartered to the military and other commercial aviation services provided to the 

4 See Attachment 7 for the cnrrent statntory definition of public arrcraft and the cnrrent version of 49 U.S.C 

Section 40125. 
11 

military (and that are otherwise available to the public at large in the United States) 

should be governed by the full panoply of FAA "civil aircraft" safety rules. 

The legislative history supports it military flying exception to "other commercial 

flying." And, the recent evolution of how most flights and other commercial services 

provided by air carriers and others to the U.S. military has been to increasingly provide a 

"civil aircraft" standard of safety to those aviation operations unless the Secretary of 

Defense makes a finding that such flights need to have "public aircraft" status -- in the 

"national interest." Thus, the general trend has been to provide military personnel with 

the safety benefits of civil aircraft operations, unless the Secretary of Defense declares 

that it is in the national interest (i.e., a national defense need) for such operations to have 

"public aircraft" status. That trend is instructive to the extent the FAA may consider 

widening the exceptions to "other commercial flying." 

C. Expanding the exceptions to "other commercial flying" to include 

other public aircraft operations beyond military flying appears to be 

inconsistent with the FAA's current NPRM on flight and duty. 

In the FAA's currentNPRM, 75 Fed Reg. 55852, September 14,2010, the FAA 

has proposed to eliminate the so-called tail-end ferry flight exception for part 121 air 

carrier pilots. Ferry flights conducted under Part 91 for which the pilots receive 

remuneration are considered "other commercial flying." So called "tail-end ferry 

flights"S are part 91 flights required of the pilots by air carriers in order to position the 

5 Although it does not appear that ilie NPRM preamble uses the phrase part 91 "tail-end ferry flight," that 

document notes that the NTSB reconunended that.the agency eliminate ilie ferry flight exception to the 

applicability of part 121 rules (75 Fed. Reg. 55852 at p. 55856) and in ilie proposed new section 117.1, the 

agency writes, in pertinent part, iliat" [the proposed new part 117] also applies to all flightcrew members 

and part 121 certificate holders when conducting flights under part 91 of this chapter." Id. at 55884. 
12 

aircraft and/or crew for subsequent part 121 or 135 flights on the pilots' next duty day.6 

However, these tail-end ferry flights, which pilots conduct for compensation by the air 

carrier, are not counted when calculating whether a pilot has exceeded daily flight time 

limitations.7 Generally, such tail-end ferry flights are counted toward the weekly, 

monthly and annual flight time limits in parts 121 and 135. In the NPRM, the agency 

proposes to eliminate the tailcend ferry flight exception -- even though no revenue cargo 

or passengers would be exposed to the pilots who had accumulated flying homs in excess 

of the part 121 daily limits. The agency's proposal, in part, may be based on the NTSB 

recommendation which was cited in the NPRM and which seems to focus on the concern 

that air carriers were assigning flight crewmembers to such other commercial flying --

that is presently not subject to the flight time limitations in part 121 (or part 135)--

regardless of the fact that dangerous cumulative fatigue could jeopardize the air carriers' 

employees (e.g., pilots) on those part 91 tail-end ferry flights. See 75 FR 55856, middle 

column. 

The FAA is presently proposing to eliminate one kind of exception to "other 

commercial flying", i.e., tail-end ferry flights (which potentially endanger only the flight 

crews and other air carrier employees by exposing those on board the carriers' part 91 

6 See, e.g., Letter to ALPA Attorney Johnson, from Assistant Chief Counsel Byrne, date May 9,2003 . 

. Interpretation 2003-8. (West Publishing). 

7 Occasionally, if the circumstances are right, it is possible that a tail-end ferry flight conducted at the end 

of an air carrier pilot's duty week (which, for example, might be limited to 30 hours of flight time in 7 

consecutive days) might be "tail-end" to that week, and thus not connt toward the weekly flight time 

limitation. See, e.g., Interpretation 1987-12. In 2003, an FAA interpretation extensively discusses "other 

commercial flying" and includes a cliscussion that tail-end ferry flights do not count against daily flight 

tirue limits. That interpretation also discusses the paradoxical interplay between the inapplicability of tailend ferry flight tirne counting toward daily flight time limitations but the "counting" of such flight time 

when calculating the length of a required rest period. Thus, while "other commercial flying" done by a pilot 

for one employer, must be considered and counted by that pilot's air carrier employer for compliance with 

flight time limitations, "other commercial flying" and its impact on rest requirements only has to be 

considered by the air carrier employer if that "other commercial flying" was assigned by that self-same air 

carrier employer. See Interpretation 2003-8 at pp. 1-353-364. (West Publishing). 
13 

operations to the dangers associated with the pilots' cumulative daily fatigue from actual 

daily flight time accumulated). Thus, it appears that the agency, for safety reasons, has at 

least tentatively concluded that some air carriers that are presently unfettered by the 

part 121 flight time limitations when assigning their pilots to conduct part 91 tail-end 

ferry flights, need to be subject to a new safety rule. This new safety rule would be for 

the benefit of those on board the part 91 tail-end ferry flight, which would be the pilots 

themselves and occasionally other air carrier employees. 

It would appear to be incongruent with the NPRM's safety proposal to create a 

new exception to "other commercial flying," for some or all public aircraft flying (which 

would exclude such flying in computing daily, weekly, monthly, and annual flight time). 

Indeed, some might argue that the dangers that arguably would be remedied by 

eliminating the tail-end ferry flight exception would be worse if the definition of "other 

cormnercial flying" was interpreted to except some or all public aircraft operations. 

Assume, for example a carrier that has a contract to conduct public aircraft operation for 

a govermnental entity or a carrier and also a government entity that has its own public 

aircraft operations. First, not only would employee pilots who had conducted public 

aircraft flights in the morning not have the safety benefits of counting that flight time for 

purposes ofthe flight time limitations that apply to other part 135 flights they might make 

later that day for that employer, but air carrier passengers would be exposed to increased 

fatigue risk if air carriers could ignore all public aircraft flying done for them by their 

pilots earlier in the day. Second, where there may be part 121 carriers now that arguably 

expose their employees to the cumulative fatigue dangers of tail-end ferry flights for 

purposes of repositioning airplanes or crews, any change in the law to except all "public 
14 

aircraft" flying as "other commercial flying" would expose those pilot employees to 

, 

potentially more flights -- but this time carrying revenue passengers and cargo -- above 

and beyond the part 121 or part 135 flight time limitations. 

Finally, it is noteworthy that in the FAA's current NPRM regarding flight time 

limits, duty limits and rest requirements for part 121 flightcrew members, the agency 

provides an extensive discussion about military exigencies that may warrant deviations 

from the proposed safety rules. See 75 Fed. Reg. at pp. 55875-55876 (Sept. 14,2010). It 

does not appear that the NPRM contains any discussion about adding all public aircraft 

flights as an exception -- like military flying -- to the proposed part 121 flight time 

limitations. 

D. Changing the law, as part of this adjudication, to expand the exceptions 

to "other commercial flying" to include other public aircraft operations 

beyond military flying could be contrary to court decisions identifying 

when notice-and-comment rulemaking is required. 

As a general rule, administrative agencies are free to announce new principles 

during adjudication. NLRB v. Bell Aerospace Co., 416 U.S. 267, 290-295 (1974); 

Teamey v. National Transp. Safety Bd., 868 F.2d 1451, 1453 (5th Cir. 1989), cert. 

denied, 110 S.Ct. 333; Cities of Anaheim, Riverside, Banning, Etc. v. FERC, 723 F.2d 

656, 659 (9th Cir. 1984). But, agencies may not use adjudication to announce new 

principles where it would: 1) amount to an abuse of discretion; or 2) circumvent the 

requirements of the Admiuistrative Procedure Act. Bell Aerospace, 416 U.S. at 290-295. 

The Ninth Circuit has interpreted the first limitation as a restriction on agency 

policy making by adjudication that results in undue hardship by the agency suddenly 

changing directions, to the detriment of those who relied on past policy. Ruangswang v. 
15 

INS, 591 F.2d 39 (9th Cir. 1978). The Ninth Circuit has similarly interpreted the second 

limitation as a restriction on agency policy making through adjudication when it is used 

to amend a recently adopted rule, Ruangswang, 591 F.2d at 45-46, or to supplant a 

pending rulemaking project. Ford Motor Co. v. FTC, 673 F.2d 1008, 1010 (9th Cir. 

1982). 

To change the meaning of "other commercial flying" in the context of this 

adjudication to newly exclude some or all "public aircraft" flying from being considered 

"flight time" for purposes of applying the flight time limitations of part 13 5 (or part 121) 

would run counter to both limitations on rulemaking through the adjudication process 

articulated by the Supreme Court in Bell Aerospace. Such a sweeping change to the 

longstanding definition of "other commercial flying" to incorporate police flight activities 

as an exception -- or all "public aircraft" flying -- could potentially impact public safety 

and have a significant cost impact on affected carriers and others. It, therefore, is the 

type of change in the law that should only be contemplated through notice-and-comment 

rulemaking. In addition, in view of the current NPRM, as noted above, that proposes to 

eliminate the safety concerns ihherent in the "tail-end" ferry flights, any change to the 

defmition of "other commercial flying" through adjudication could be construed as 

inappropriately supplanting that rulemaking. 

Furthermore, "[u]nder the AP A, agencies are obligated to engage in notice and 

comment before formulating regulations, which applies as well to 'repeals' or 

'amendments'." Air Transport Association v. Federal Aviation Administration, 291 FJd 

49 at 56 (DC Cir. 2000). And, "an agency violates the AP A if it makes a fundamental 

change in its interpretation of a substantive regulation without notice and comment." Id. 
16 

citing Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (DC Cir. 1997). 

Once an agency gives its regulations an interpretation, it can only change that 

interpretation as it would formally modify the regnlations itself: through AP A noticeand-cormnent rnlemaking. Alaska Professional Hunters Assoc. v. Federal Aviation 

Administration, 177 FJd 1030 (DC Cir. 1999). 

Apart from the case law, it wonld seem prudent to avoid expanding the exceptions 

to "other cormnercial flying" beyond military flying in the context of this adjudication 

because so many persons with an interest in the matter would be likely to cormnent if 

notice-and-cormnent procedures were followed before any such change was made. 8 

Below are some of the issues that may be raised if the FAA were to propose through 

notice-and-cormnent rulemaking an expansion of the exceptions to "other cormnercial 

flying." 

(i) Private Sector Businesses Engaged in both Air Carrier Operations and 

Public Aircraft Flights, Under Contract, for Govermnental Entities. 

Pilots for private companies that conduct air carrier operations and conduct public 

aircraft operations for Federal and state govermnent might have a concern about the 

'Comp lainant notes that if there was a situation where the FAA's interpretation of a statutory provision or 

its own orders were found to be in conflict with the correct interpretation of a statute or where FAA 

practice was inconsistent with a statutory mandate, then the FAA might be able to change its interpretation 

without APA notice and comment procedures. See, e.g., ConnAire, Inc. v. Secretary, U.S. Dep't ofTransp. 

887 F.2d 723,727 (6th Cir., as amended 1990) ("If the FAA had the statutory authority to do what it did and 

the [agency's 1 guidelines conflict, the statute must be given preference over the guidelines.") and Cleveland 

Nat. Air Show. Inc., v. U.S. Dept. ofTransp., 430 F.3d 757, p. 765 (6th Cir., 2005)("A government agency, 

like a judge, may correct a mistake, and no principle of administrative law consigns the agency to repeating 

the mistake into perpetuity."). But see, Alaska Professional Hunters. 177 F.3d 1030 in regard to changing 

longstanding interpretations. In the Cleveland case, the FAA had interpreted a statutory provision in 2003 

to permit the air show to take place, but the very next year, under a virtually identical statutory provision, 

the FAA stated that the statute prohibited the air show from taking place at the specified time and location. 

Complainant is unaware of any statutory mandate that would require a change in the law in the 

circumstances of this case and thus, Complainant thinks that the ConnAire and Cleveland cases are 

inapplicable in this circumstance. 
17 

number of flight hours they might be required to operate if nonmilitary public aircraft 

time was no longer counted as "other commercial flying." For example, if a helicopter 

operator authorized to conduct operations under part 135, 133, and 137 certificates also 

had contracts with the government to fight fires (which might well be public aircraft 

operations), it could require a pilot to operate the several hours of public aircraft 

operations in the morning followed by the maximum number of flight hours permitted for 

air carrier operations under part 135 If a private entity conducting public aircraft 

operations under contract to a governmental entity wants to minimize overhead costs, it c 

could avoid hiring additional pilots to cover its part 135 flights by simply not counting 

any public aircraft flying done by its pilots on its government contracts as any "flight 

time" for flight time limitation purposes. Aside from pilots, safety advocates and 

prospective passengers might also be concerned about this potential situation. 

ii. Some State and Local Governmental Entities Engage in Both Air 

Carrier Operations and Public Aircraft Operations. 

Some state and local governments have part 119 certificates authorizing part 135 

operations and they engage in some part 135 commercial operations in addition to public 

aircraft operations. Other part 135 operators and trade associations, as well as the 

operator's pilots and prospective passengers might want to comment on any proposed 

expansion of the exception for "other commercial flying" to some or all public aircraft 

flights. 

An interesting cases study exists in In the Matter of the Petition of Travis County, 

Texas, Denial of Exemption No. 6418, Docket No. 28196, March 29,1996. (Available on 

the FAA's website under Rulemaking/Exemptions). Travis County, which then had 

authority to operate under part 135, sought a statutory exemption from certain civil 
18 

aircraft standards and a 14 C.F.R. part 11 exemption from not only all of the rules in part 

135, but 30 or so rules in part 91 (including rules applicable to "public aircraft" 

operations) and certain criminal law provisions. Among other things, Travis County did 

not want to be held to part 135 safety standards when it transported - for compensation or 

hire -- sick and injured people to hospitals or between medical facilities. The FAA held 

. that such operations did not have "public aircraft" status. 

Travis County undoubtedly was conducting some "public aircraft" operations for 

which only some part 91 rules applied. But it was also engaging in compensation or hire 

flights -- for which part 135 rules applied -- and in which it was in competition with 

private sector part 135 operators. See the denial of exemption for a summary of 

Helicopter Association International's comments in opposition to Travis County's 

petition. Most importantly, because the county used its aircraft for nomnilitary "public 

aircraft" operations and likely used the same employee pilots on those flights and flights 

governed by part 135, if all of its public aircraft flights did not count as "other 

commercial flying" it arguably would have had an unfair economic advantage over 

private sector providers of part 135 air ambulance services. 

iii. The Government Pilot Employee Who Moonlights As 

a Part 13 5 Pilot. 

If all public aircraft flying were excepted from being counted for flight time 

limitations, it might encourage government pilots who do work full time in public aircraft 

operations to moonlight for part 135 operators. Given that the requirement to count 

"other commercial flying" in the flight liruitation rules is to protect passengers from 

fatigued pilots, passengers and safety advocates might want to comment on a change that 

would encourage such moonlighting. 
iv. Complexity For the FAA, Air Carriers, Air Carrier Pilots and Others to 

Identify and Adequately Document Which Governmental Flying Has Public 

Aircraft Status and Which Does Not. 

Because, as Complainant explained in its Appeal Brief, not all flights by a 

19 

governmental entity have public aircraft status, any decision to create another exception 

for "other commercial flying" could add a level of complexity that can make enforcement 

of the rules difficult. And some air carriers might argue that it would be difficult for the 

air carriers themselves to gather the necessary evidence to demonstrate that any or all of 

the flights flown by a pilot employee -- for the carrier itself during a contract public 

aircraft operation or when the pilot employee moonlights for a governmental agency --

served an essential governmental purpose under the "public aircraft" provisions of Title 

49 of the U.S. Code. Pilots and air carriers might express concern that to be able to 

demonstrate compliance with flight and duty limitations they are being burdened with 

first determining whether an operation has public aircraft status and then maintaining 

documentation to establish it. Expanding the exception from "military flying" to some or 

all "public aircraft" flying would take something that is simple to identify and exclude 

and make it far more complex for everyone. On the one hand, it is fairly simple to 

identify "military flying" and sequester it out of "other commercial flying" because the 

pilot has to be serving in the military and flying aircraft for the military. That military 

flying can be anything from combat missions to training missions to military transport 

missions. 

On the other hand, it is quite laborious and might require substantial 

documentation -- imposed by the air carrier on the pilot and imposed by the FAA on 
20 

both the air carrier and the pilot -- to prove and document that any particular flight for a 

Federal, State, or Local Government had "public aircraft" status.9 

v. The public interest in maintaining the level of safety provided by the 

flight time limitations for Part 135 and Part 121 Operations. 

There is no doubt that public aircraft operations serve a public interest. The 

public may want to comment, however, on whether there is a need to except some or all 

nonmilitary public aircraft operations from the requirement to count "other commercial 

flying," and even if there is value in making such a change whether it outweighs the level 

of safety provided by the current interpretation of "other commercial flying" and its 

impact on flight time limitations. 

Additional issues that the FAA would have to consider -- and the public might 

comment on -- in any rulemakillg action to alter the interpretation of "other commercial 

flying" include whether there is a "national" interest in not counting any public aircraft 

flying as "flight time" for purposes of determining compliance with part 135 and part 121 

flight time limitations and whether the public interests served by those public aircraft 

operations are on par with the national public interest in permitting "military flying" to 

not count as flight time for flight time limitation purposes. 

9 AIT carriers are subject to record-keeping rules that require them to demonstrate that they are in 

compliance with the flight, duty and rest requirements of parts 121 or 135, as applicable. See 

135.63(a)(4)(vii) and 121.683(a)(I). Thus, if a carrier has to have a record to demonstrate that its pilots 

have not exceeded the flight time limitations, it would have to be able to demonstrate, for example, which 

"ferry flights" for the carrier were "tail-end ferry" flights that would not be used in calculating whether the 

pilot exceeded daily flight time limits -- as opposed to weekly, monthly or armual flight time limits, for 

which tail-end ferry flight is counted as "other commercial flying" in regard to flight time limits. See, e.g., 

Letter ofInterpretation to Mr. Donahue, from FAA Assistant Chief Counsel Byrne, dated April 9, 1993. 

Interpretation 1993-9 (West Publishing). Similarly, an air carrier pilot who moonlights as a pilot for an oil 

company would be required to report that "other commercial flying" to the air carrier, and that "other 

commercial flying" would be used to calculate whether the pilot was at, near or over flight time 

limitations in parts 135 or 121. For a pilot working for a local police department, the task of determining 

which flights had public aircraft status and which had civil aircraft status could be daunting and 

controversial. An air carrier might demand substantial documentation in order to satisfy itself that some 

police flying is "public" while the remainder is not. 
21 

Consider the wide range of activities that are "public aircraft". Even wildlife 

management,10 is classified as public aircraft flying. Is wildlife management, by the 

States or by the Federal Government, the type of public interest that would be viewed as 

being on par with the national "public interest" in military flying, and thus would warrant 

exposing those who paid for part 135 or part 121 service (as paying passengers or cargo 

shippers) to the added risks of cumulative fatigue in pilots who had accumulated a lot of 

public aircraft flight time counting wildlife earlier in the day? In any rulemaking, the 

FAA can expect to receive arguments for and against any proposal to change the law in 

order to provide that some orall public aircraft flights ought not count as flight time for 

purposes of complying with the flight time limitations of parts 135 and 121. 

II. The Respondent Produced No Evidence to Support Its Affirmative Defense 

That the Flights at Issue Had Public Aircraft Status. 

As noted in Complainant's Appeal Brief, the Respondent failed to produce any 

evidence that any of the LAPD flights in question had "public aircraft" status. See 

Complainant's Appeal Brief at pp. 17-23. If Respondent had wanted to advance an 

affirmative defense that all of his flights had "public aircraft" status, then Respondent 

should have provided such evidence and argued how each flight was a public aircraft 

flight within the meaning ofthe applicable statutory definition and the relevant FAA 

guidance material. Respondent could have, but did not, argue that his flights should be 

treated like military flying and thus not counted as flight time for purposes of part 135 

flight time limitations. 

The record lacks any evidence that any of Mr. Smith's LAPD flying had "public 

aircraft" status. Respondent did not argue for the addition of all public aircraft flying or 

police public aircraft flying to the "military flying" exception to "other commercial 

flying." Instead, Respondent's argument merely assumes that all LAPD flying is "public 

lO"Public aircraft" flying is very broad. It can take in such things as wildlife management whereby some 

pilots accrne a lot of "public aircraft" flying tracking/counting herds or thinning herds of wild animals. 

See FAA Advisory Circular 00-1.1, Government Aircraft Operations, dated April 19, 1995 at page 7, which 

gives "Biological and Geological Resource Management" as a type Of aircraft operation that would be 

considered a "Governmental Function" under the statutory provisions defining "public aircraft". An 

example of snch a public aircraft operation would include" ... counting wildlife from aircraft". rd. 
aircraft" flying and he argues that the FAA does not have the statutory authority to 

impose any regulations on public aircraft operations. The argument fails because as 

articulated in Complainant's Appeal Brief: 

22 

1. It is a fundamental mistake under the statutory provisions (both now and in 

the past) to assume that all flying for a Governmental entity automatically has 

public aircraft status. 

2. The FAA does have the authority to regulate, and does regulate, some aspects 

of public aircraft operations; and 

3. The safety purpose in counting "other commercial flying" including all 

"public aircraft" flying, other than military flying, is for the benefit of those 

that use (as passengers or shippers) the services of part 121 or part 135 air 

carriers. Counting paid-for pilot time in public aircraft operations [other than 

military flying] does not advance the safety of such public aircraft operations 

but it does serve the FAA safety purposes when such pilots also fly in part 

121 or part 135 operations. 

Conclusion 

Neither of the applicable legislative or regulatory histories supports that a change 

to the long-standing definition of "other commercial flying" is appropriate in the context 

of this adjudication .. 

Assuming, arguendo, that the record contained evidence that one or more of the 

LAPD flights, that was the subject of this enforcement action, had "public aircraft" status, 

the law cannot be changed as part of this adjudication. Notice-and-comment rulemaking 
would be necessary. See Alaska Hunters, ATA v. FAA and Paralyzed Veterans. 

Respectfully submitted, 

kJoseph ~~ A. Conte tJ Manager, Special Emphasis Enforcement 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Admiuistration 

800 Independence Avenue, SW 

Washington, DC 20591 

2022677381 

23 
Certificate of Service 

I certify that on this date the origillal and two copies of Complainant's Supplemental 

Brief in the matter of Sun Quest Executive Air Charter, Inc., Docket No CP08WP0004 

were sent by certified mail, return-receipt requested, postage prepaid, to: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2Wl 000 

And that a copy was sent by certified mail, return-receipt requested, postage-prepaid, to 

Arthur Wasserman, Esq. 

Wasserman & Miller 

16380 Roscoe Blvd. Suite 120 

Van Nuys, CA 91406-1221 

Dated: March 7, 2011 
CIVIL AERONAUTICS 

LEGISLATIVE HISTORY 

OF THE 

AIR COMMERCE ACT OF 1926 

APPROVED MAY 20, 1926 

TOGETHER WITH 

MISCELLANEOUS LEGAL MATERIALS 

RELATING TO CIVIL AIR NAVIGATION 

RE\·'TSION 01" THE 1923 EDITWS Of' 

LA\l,' IvIEMOI{ANDA UPON CIVIL AERONAUTICS ; (Cj "/-. ~.-

, -, r-,: f -

CORRECTED TO AUGUST 1,1928 

PRINTED FOR THE USE OF THE 

CmUlITTEE ON INTERSTATE AND 

HOUSE OF 

UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON 

. 1928 

COMMERCE 
<-r - -

( 

PREFACE 

This compilation is a revision of the compilation entitled "Law 

Memoranda Upon Civil Aeronautics," prepared for the use of the 

Committee on Interstate and Foreign Commerce ot the House of 

Representatives in 1923 in connection with the committee'g consideration of the air commerce act of 1926. The revision consists principally in additional lUaterials setting forth the legislative history of 

the act, the State air navigation laws and Pan AIllerican Convention _ on Commercial A vjation of 1928, and in the omission of the annexes 

imd regulations under the International Air Navigation Convention 

of 1919. 

The cOlUpilation is comprised of four parts: 

1. The text of the air commerce act of 1926, and committee reports _ -and other materials relating to its legislative history. - - . 2. Articl~ and reports, together _ with two un'p~bli~hed C?nrt. dem- -SlOns, relatmg to legal probleIUS presented by Cl"') aIr naVlgation. 

3. Materials relating to State legisl!1tion upon civil air navjgation, 

including the text of the uniform State aeronautics law and a digest 

of State regulatory" legislation. 

4. The text of the two international con"entions relating to civil 

air navigation, which the United States has signed but not ratified. 

The compilation has been prepared at the direction of the Committee on Interstate and Foreign Commerce of the House of Rep- - resentatives and in cooperation with Elton J. Layton, Esq., clerk of 

the colUmittee. The work upon the compilation has been done, 

under lUy general supermion, by C. Breck Parkman, clerk of the_ 

House branch of the office of the legislative counsel. - - -

]REDERICP. r-, 

Lerrisla:tive Ooumd, U1Iited States Senate. 

v 

... ' 
I 

OF THE 

STATES SENATE 

/ 

{ . ';T": 

~,--, ..:. 

- 1--.;-!'" 

I 

-" ~,,'-' 

' .... 

CONTENTS 

• - . "I 

I. Air Commerce Act of 1926 _____________________ ::-....".._~----------- (a) Text of act __________________________ ~~~~~ ___________ __ 

(b) Comparison of Senate bill and House amendmenL ________ --: 

(a) (0) Air senate commerce report-regulatlons _____________________ ___ ~---_---------------------- ~ ___________________ __ (e) IIouse report ___________________________________________ _ 

(t) Appendix to committee print of Honse reporL _________ _ (u) Statement of the managers on the part of the Rouse ______ _ (h) Extracts from article of Fl~eric P. Lee on the air com~ 

1926) meree" ______________ act of 1926 (American Bar ABsociation Journal, : __________________________________ _ 

II. Legal problems relating to civil air navigatioD-_________ -..:.. __ _ 

(a) Extract from the report ot the committee on the law of 

aeronautics of the American Bar Association (1922) __ ... , (0) Extract from the report of the' committee on the u.n.i!orm 

aviation act of the Conference of Commissioners on UIli, 

..,... ........ 

Fa .. 

1 .: 1· 

9 

·22 

22" 

29 

sa 

48" 

53 

T -62 .. 

62 

form State Laws (1922) _____________________ ~ ____ . 62" . 

(e) Extract trom an address of Willinm P. MacCracken, jr~, to 

the First National Air " Institute (l922) __ c ____ c ________ · ", 64 

,(d.) Article of, George G. Bogert on lIroblems in aviation laV( . . (192:1) ------------'-0----------------" _. __ ~ _________ " . 66 

(e) Extract'-fxom the report of the committee on the law of . aeronautics of the .American Bar' Association (1921)"__ : 97 (t) Court decUdons ______________ "~_~________________________ 100 

(g) Extracts from article of Fr~eric P. Lee on the air domain . ot the United States (1928)0__________________________ 104 

III. State legislation upon civil air naviga:t!oD-___ -' ______ ..:.-_" __ '_· 132 

(a) Extracts from Department of Commerce abstract of State laws on aeronautics (1.928) ________ "_--' ____ " _____ ' "'J.B2 

(0) Extract from report of the committee of the amendment of "', ':-

the law of· the .Association of the; Bar of the City of New 

York on the uniform. State law of aeronautics (1.923) __ ' 1.42 

'(e) Extract from the report of the standing committee on air 

law otthe :'AJ:nerlcan Bar· Aslloclatlon (1927) ___ . ____ 149"" 

(d) Extract from the report of the committee· on air lawof.the American Bar AssOCiation (1928} ______ .:.. ____________ . ·150 

TV. International agreements relating to civil air navigation ____ ..:._____ . '155-

(a) International Air Navigation Convention (1919) _______ ~ __ ' 155 

(b) Pan American Oonvention on Commercial AYiation (1928)__ 170 

m 

": .. 
( 

". , 

'., .-': 

( 

I. :AIR COMM:Ell.CE ACT OF 1926 ". 

-.. - ~ 

"'.' 

(a) Text of act. 

NOl'E.~The air commerce act of 1926 was enacted May 20, 1926, as -.Public, 

No. 254, Sixty·ninth Congress, and will be found in 44 Stat. sa8: 

An Act To encourage and regulate the use of aircraft in commerce;' -and tor 

other pnrposes . 

Be it =teci: oil the,serTUde (lInd H O1J,8e of llepr~diwei ,oj iie 

llnited .state8 of A.'llwrica in 00';1,re88 assembled, That as ·used .:in 

this act, the term "air commerce ' means transportation in whole 

or :in part by aircraft ofpeisoDsoF pi:o'peft~8;>..n'!'v'*~on oi'-airci'lrfr'"lll furtherance ofa llUsmess,)Or na)'lgation,. (if, all"craft 

from one }Jiltce to another for o~r!'tfo.l!PJ.tW~CQn<lum.pf,'ij:biis1iiess, 

As used in this"act, the'term ' interstate or foreign 'a,+ colIll!'erce" 

means liir co=erce between any St",~Jerritory",9r.,possessIOn, or 

the District of Columbia, and any place outslae thereof; or between 

points withi!! tb", sllfll.e State, Territory, or possessi()u, or the DiStrict 

of Columbia .. lljit throu~h theairspace over ";Uy pl~.Q.ntsid.~, thereof I' 

or wholly wlthm the alTspace over any TerrltoryO!.,pO,¥",SSl9Jl·0l:·the 

District of Columbia:· .'. .... '" ,.,'.,." 1 ,,: , .'. 

. SEO, 2, PROMOTION OF AIR OOMMEROE.-It shall be,the dutY,of'the""" . Secretary .of Co~erce to foster' air .co=erce in 'accordance With .," 

.the prOVlSlons of this act, and for such purpose-· .. } . ,'.' ... , (a) To ";Ucour~e .the es.t>:b.lishment .of airports,civil ,airwa),!" 

and other aIr naVIgation facilities. .; ..... , ':: '.".' ;'.' '.' 

{b} To. make. I:ecomme,?-dations . to . the ..s~cr!'ltary ,of Agricultnre 

as to necessary meteorololecal serVIce. . ,", .,. j'" COo ", .. ",.. <'. 

( c) To study thepoSSlbilities .for the .developl)lent of .air,.rom-. 

meree and the aeronautical industry and trade in the United ,smtes 

and to collect and,disseminate information.relativ<\;thereto:.:udalso 

as (drTa:~=!~:: B!~~~~1' Standards a~oth~J:;~iferiJ~s .in th.e executive ;branch of. the Govermnent in carrying ;~orward 

such research ,and_dev:elopment work as ten(1s to create .lIDproved 

air navigation facilities. '. The. Secretary ot Commerce,is .·a~thorizeil· 

to transfer funds, ""allable for carrying out· the'purpqses of this 

subdivision to ,any ,iuch 'llfl'ency for c\,rryirig £orwa~d such resea"fh 

IUld . ,development. ;\York, ill . cooperatIOn w1th the pepar.tinent .. O:f 

Coinmerce. ',. ,'>:':"_'~~" ,.1'_'" <,'. ' . .: ,:.",> ,;, . .-. ·,:"';.-",_.i :: 1:':- _ :",\,-"".;':; . (e ).Ta in've~tigate, record, and make j:molic tue 'caiises of .aCcidenw 

incivilairnavigati,on:ID the United States. ,', .. 0<. "':. ~,'., ': .. 

, (f). To exchange_witb'for~ign gov~r~erits:~o~h ~~:gov­ ernmen~a1 c]:tannels lll~ormation pertammg to.clvil air naVIgation. .. , ,:,: ,sEP. a. ~wA1pJi;t'WwimB.-,. The Secre~aryo~ O():ri:mierce !ililil,l qy regU1atiori~'-" -,~ ·;:,:"~'~~7t.: ~ '_I .:- '~. -'""~ -'-~: ,-._."- ~'" ~-'~'<"'_ -' 1 

.• (a) ProVia~£'jMitgranting of registr~fib~;tt:'),;i;:~r~tfolik5bie ,for registra~i?~ I tli· 0 ~er r~ uests uch re' 'sttaHo 1:i)l'f():~r.(jpiIt 

shall oeehg:I?~; or.regr~at~on (1) unless '",l)' a1wilall"cl'fi~ ,?'I\'lled bya c,tizen, ,orth~~Vmted St.ates ani! :not regotstere{i ~d¢.r 

.~.<:i' '\ \ " .~-. ~~;:; :~-i;_i(l_,. .. '~. ;k~ ;.' "r;I~:: .' ' : / '.,:: . 0;: ~._ ' ... : ~j~.<.;,:.;-. :!5.~;· i 4.: '~l:li:f)'_. 
2 LAW ~IEMOllANDA UPON Cpu, .AERONAUTICS ' 

the la,ws of any foreign country, or (2) unless it is a public aircraft 

of the ;Fed~r~l Gover,?,:e?t, or of a State, ?-,erritory, ?r possession, 

or of a politIcal wbdlVislOn thereof. All aircraft registered under 

this subdivision shan be lmown as aircraft of the United 'States. 

(b) Provide for the rating of aircraft of the United States as to 

their airworthiness. As a basis for rating, the Secretary of Comll!erCG (1) may req';lire, before the granting ~f registration for any 

aircraft first applymg therefor more than eight months after the 

,passage oithis act, full particulars of the design "nd of the ,calculations upon which' the design is based and of the materials and 

methods used in the construction; and (2) may in his discretion 

accept ili whole or in part the reports of properly qualified persons 

'emplOyed by the manufacturers or owners of aircraft; "nd (3) may 

'require the' periodic examination of aircraft in service and reports 

upon such <lxamination by officers or employees of the Department 

of OOIl1IIl!'roe 'or by properly qualified private persons. The Secretary may accept any such exumination and report by such ,qualified 

persons in lieu of examin~tion. by the employees of the Department 

'of-:Commerce. The qualificatIOns of any person 'fat the lurpases 'or this section shall be demonstrated in a manner specifie by and , -satisfactory to the Secretary. The Secretary may, from time to time. 

're-rate'"ircraft as to their airworthiness upon the basis of informa-

,tioli obtained nnder this subdivision. . - . (c) Provide for the periodic examination and rating of airmen 

'servingm connedion with aircraft of the United Stutes as to their, 

'qualifications for such service. 

(d) Provide for the examination. and rating of air navigation 

facilities Rvailable for the Use of aircraft of the United States as 

to their suitability for such use. ' ',';, . ,''Ii - " '. ",' 

"'-(e) ,Establish .air traffic rules for 'the navigation, protection, and 

identification OT aircraft, including rules as to 'Safe altitudes of 

'flight and rules for the prevention, of collisions between'vessels and 

'aircraft"'" . . (f)Pro'videfor the issuance and -expiration, and for the suspension and re:vocation, of registration, aircraft, arid airman certificates, 

'1IlldSlich"other certificates as the Secretary of CommerCe deemi3 

n~a'.1. l?':"dministering the f?nctions vesre.d il.' him under this 

-act. Wlthm 20 days' after not,ce that applicatlOn. for any 'cer- ' 

-tificare is dellied, or that a certificate is suspended (ltrevoked, the . applicant or holder may file It written request with the Secrefut::y 

of Commerce' for a public hearing thereon. The Secretary' ' . receipt, oithe request shall forthwith (1) 'arrange fat" ' 

hearmg to be held within 20 days after such receipt in "-_.'_,. -,,"'c 

-'lis "the 'Secretary deems most ,practicable and ~. o~1Te.m'mt.11l 

, of the, place of residence of the applicant 'or holder .and ' -wh~r,;.eVidence 'bearing on the cause for the denial, 

_~vopatiiin;islllost. readily ,obfa:inable, and (2) give th~ 

'or'liolder "t'least ten days'notlce'of the hearmg,llliless 

hepfu,g.is con~ented to by him. No.tice under this su1)diviSio~I':1I'taY.~·.·· 

b~.~<id;per:wnruly upon the applIcant or hOld,:~e~:r:~. E~:~~_~,r~r]~ teg"lSterep.,mail. The Secretaq, or any offiser:~: . 

_;Departrrlent 'purpose; may of hold Co=erce any such d€!Slgnated t,earing and 'bYhun:lllt~~~~~i'l!l!!i~;]tf for the' 

administer oaths, examine witnesses, and issue 
ON. s . 

it is a public aircraft 

:-ritary, or possession, 

raft registered under 

,e United States. 

e United States as to 

,e Secretary of Com- , registration for any 

,ht months after the 

'gn and or the ,calcuof the materials and 

lay in his discretion 

orl y qualified persons 

ircraft; and (3) may 

1 service Rnd reports 

:s of the Department 

persons. The Secre-

)ort by such qualified 

os of the Department 

son 'for the purposes 

mer specified by and 

lY, from time to tim~~ 

the basis of informa- . 

nd rating of airmen 

ted Btates as to their· 

lIS r . - navigation 

the <1' States as 

itio..... A'otection, and 

"00 'sal'e altitudes of 

s ·between· vessels and 

;'and for the suspenid'airman certificates, 

of Commerce deems 

ld"jri'him under this 

ication . for any cernded or revoked, the 

t with the Secretary 

The -Secretary' upon 

"range for' a public 

receipt in . such place r ,- convenient in view 

holder,imd the place ~eD.ia1~ ~ sUspension, or 

O)iive,the appliCll;nt mg,<Iriless an earlier 

this supdivisionmay 

older: (>t .'sent. him by 

i oN)m~lo'yee of the 

linwnting£orthe 

the purposes thereOf ~e subpCBIlas .for the 

.' 

LAW JliEMORANDA UPON OIVIL AERONAj:JTIOS 

attendance and testimony ·or witnesses, Or the production of. books) 

papers, documents, and ?th~r. evidence, or the takin5mi~j~epositions . before any. de:sIgnated mdIvIdual 'competent, to a tel' oaths. 

Witnesses summoned or whose depositIOns are taken shall receive 

the same fees and mileage as witnesses jri courts of the United States. 

All evidence taken at the hearing shall be recorded and forwarded 

to the Secretary for decision in the matter to be rendered not later 

than ten days after .completion of the hearing. The. decision of 

the Secretary, if jri accordance with law, shall be final. The denial, 

suspension, . or revocation ·sha11 .be invalid unless opportunity for 

hearing is afforded, notice served or sent, and decision rendered 

within the respective time:s prescribed by this subdivision. " 

SEO. 4. AIRSPACE RESERVATlONs.-The Pre:sident is authorized to 

provide by Executive order for the setting apart and. the protection 

of airspace reservations in the United States. for national defense 

or other governmental purposes and, in addition, in the District 

of Columbia for public safety purposes. The several States may 

set apart and provide for the protection of necessary airspace r.eservations in addition to and not in conflict either with airspace reservations established by the President under this section or, with any 

civil or military airway designated under the provisions of. this. act. 

SEC. 5 . .AIDs TO AIR NAVIGATlON.'-(:i) Whenever at.an)' timeihe 

Postmaster General and the Secretary. of Commerce by Joint 'order so direct, the airways under the jurisdiction and control ",f i.the c· 

Postmaster G<lneral, together with all emergency Janding£elds ;and .' 

other air navigation facilities (except airports and terminallaI).ding, 

fields) used in 'connection therewith, shan be ·irans:ferred" to ,the--

jurisdiction and .control of the Secretary' of Commerce;,aridnthe . establishe~ Il;iryorts and terminal landing . .f!.el~ !'lay be ·trans:fmt<l~ " 

to the junsdIctlOn and control of the muruc'pal,tiesconcerned'under 

arrangements subject:to approval by the President. .All:unexperided 

balances of appropriations which are available for and which have 

been allottBdfor expenditure upon such airways, emer.gency]anding 

fields, and otherllir navigation facilities, except airports arid terminal 

landing fields, shall thereupon be available for expenditure uiIder:the ..• 

direction of the: S,,!,retary of Commerce; in lieu of the <Postmaster 

General, for the purposes for which such appropriations'were made: 

No.part of such unexpended balances ofappropriati(>llsi;shall,be 

used for tM purchase or. establishment of airports or terminaHanding 

fields. ' . . .. :: - ., ,-,,; . ; ""'"': .. ''''' . (b) TheSecretary;'bf; Commerce 'is authorized to desigiiii.te ;and-V 

e:stablish civil airwa;rs "and, within the limits' of available ·appro,. .' priatio~ h~reafterniade by the Congress, ,(1) 0 e:sta~lis~, oper~;, 

and mamtamalorig such, aIrways all necessary ",r naVIgation facili· 

ties except airports'; 'and (2) to chart such airways .:a.nd'jRrDange 

for publication of maps of such airways, utilizing' tlie'facilities .. nd 

assistance; of ';risting.: agencies of' the Government 'so ',far; "S'PI'&C~ 

Cable.' .. The: SeCl'etary.iofCommerce' shall grant' no . exclusive"right .' . J-y.<""::;_.' .. .., 
( . 

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LAW :MEMORANDA TIPONCIVIL AERON¥UTICS. 

for the use of any civil airway, airport, emergency landing field, or 

other air navigation facility under his jurisdiction. . " .. ' " ".' 

(c) Air navigation facilities owned or operated by the United 

States may be made available for public use under such conditions 

and to such extent as the head of the department Or other independent establishment having jurisdictiqn thereof deernsadvisable 

and maln by regulation prescribe. .; . (d) The head of any Government department or other independent 

establishment having jurisdiction over any airport or. emergency 

landing tiBld owned or operated by the United States may provide 

for the sale to any aircraft of fuel, oil, equipment, and supplies, and 

the furnishing to it of mechanical service, temporary shelter, and 

other assistance under such regulations as the head of the department 

or establishment may prescribe, but only if such action is by reason of 

an emergency necessary to the continuance of such aircraft on its 

course to the nearest airport operated by private enterprise. All such 

articles shall be sold and such assistance furnished at the fair market 

value prevailing locally as ascertained by the head of such department or establishment. All amounts received under this subdi-vision 

shall be covered into the Treasury; but that part of such amounts 

which, in the judgment of the head of the department or establishment, is equivalent to the cost of the fuel, oil, equipment, supplies, 

services,shelter, or other assistance so sold {)r furmshed shall be credited to the appropriation from' which such cost was paid, . and the 

balance, if any, shall be credited to miscellaneous receipts. ....... .. r 

.. (e) Section 3 of the act entitled ".An act to increase the efficiency 

and reduce'the expense of the Signal Corps of the Army, and to 

transfer the Weather Service to the Department ofAgricnlture," ~ppro-ved October 1, 1890, is amended by adding at the end thereof a 

new:paragraph to read as follows:' .... :: ..... " .. <:. :"::' ... " 

:,"Within·the limits of the appropriations whichmaY:'bemade'for 

such purpose, it shall be the duty of the Chief oithe Weather Bureau, 

under the direction of the Secretary of Agriculture,. (a) to· furnish 

such weather reports, forecasts, warnings, and advices as may be 

required to promote the safety and efficiency of air. navigation in the 

United States and above the high seas, particularly upon civil airways 

designated by the Secretary of Commerce under·authorityof law as 

routes Suitable for air commerce, aIi.d (b) for such purposes;to obserye, measu~e, and investigate ,,:tmospheric phenomena, and estAblish meteorolOgIcal offices and stations.' . " 

,'.(f) :Nothing in this act shall·be.construed·;to prevent. the Secretary 

of.War from.desiguating routes in the navigable airspace as,military 

airways and prescribing rules and regulations·for·the .use thereof:on 

routes which do not coruorm to civil airway's est.ablished hereundei, 

or,to prevent the Secretary of Commerce from -desiguating any mili-. 

taryairway .as a civil airway; :and ,when so designated it shall thereupon,become a.civ¥ airway within.the meanlligof.this'.act,.a,?-d the 

Secretary.of .War IS hereby. authorIzed to contl1lue the operatIOn of 

air navigation facilities for any military 'airway'So ·designated asa 

civil airway·until such time lIS the Secretary of Commerce can provide 

for the operation of such facilities.· .' ". , ... -.. ·.·'0·.·:,· -;' .. ,;:; '.- ' 

,-SEC. 6. FOREIGN AIRCRAFr.~(a)TheCongresii hel'eb:Y'declares·that 

.the Government of the United States has,-j;o . the eXclusion ·of',all 

foreign nations, complete sovereignty of the airSpace over the "l;mas 
me I landing field, or 

isdiG .. _~J-l. 

r operated by the United 

use under such conditions 

iepartment or other inde-

" thereof deems advisable 

tment or other independent 

my airport or emergency 

Jnited States may provide 

oipment, and supplies, and 

!e, temporary shelter, and 

;he head of the department 

such action is by reason of 

,ce of such aircraft on its 

rivate enterprise. All such 

,rnished at the fair market . the head of such departved under this subdivision 

;hat part of such amounts. 

e department or establishI, oil, egnipment, supplies, 

or furrushed shall be cred~ 

oh cost was paid, and .. the 

aneous receipts. . ~ to :increase the efficiency 

)rps of the Army, and to 

partment of. Agriculture," 

><idj: t, the ena thereof s ( . 

18 . may: be made 'for' 

iet " Weather Bureau, 

.griclllcure, (a) to furnish 

s, and, advices as may be 

cy of air. navigation in the 

,icularly upon civil airways 

under authority of law as 

Jrsuch'purposes. to observe, 

omena, and estltblish mete- . 

,a to prevent the Secretary 

igable airspace as military 

ions·for the .. Use thereof on 

'ays ,established hereunder, 

'rom designating any mili- . ) designated it shall there- ,.,niIi~ of this act, and the 

continue the operation of 

airway so designated as a 

r ofCo=erce can provide -.,.'." :':, " 

igresS hereby declares that 

,s;.tn . the· exclusion of' all 

he airspace over the lands 

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LAW MEMORANDA UPONCrvn. AERONAUTICS 5. 

and waters of the United States, inCluding ihe Canal Zone. Aircraft 

a'part of tbe arn;ed forces of .any f?reign natIon sh.ILnot be na~­

gated in the Umted States, mCluding the Canal Zone, except m 

accordance with an autborization grjLnted by.the Secretary of St,:te, 

(b) Foreign aircraft not a part of the armed forces of the for~lgn 

nation shaU be navigated in the United' States only if authorlZed 

as hereinafter in this section provided; imd if so authorized, . such 

aircraft and airmen serving in connection therewith, .shall be subject 

to the requirements of Bection 3, unless exempt .1lllder subdivision 

(c) of this section. . '" ....; .. '. ;,i· 'e" 

(c) If a foreign nation grants a sinillar privilege in -respect of 

aircraft of the United States, and/or airmen ·serving in ,coimection . therewith; the' Secretary of Commerce may authorize. aU-craft registered under the law of the foreign nation and 'not a part of. the 

armed forces thereof to be navigated in the United States, and may 

by regulation exempt such aircraft, and/or airnien serving :in .coweetion therewith, ;(rom the requirements of section 3, other than the air 

traffic rules; but no foreign aircraft shall engage'in interstate ,or 

intrastate air commerce. - ',,' i:i-'; .. ,!" :-:;:'1 

SEC. 7. APPLICATION OF EXrsTING LAWS-RELATING '],'0 FOREIGN COM,. 

MERCE,- (a) The navigation and shipping laws of. the United States ; 

including any definition of " vessel" or " vehicle" ·found ,therein and .• 

:including the rules ior the prevention of collisions; shall,;not,.be 

construed to appll to seaplanes or other aircraft {)rw the navigation 

of vessels in relatlOnto'scaplanes or otheraircraft.~' ,-,;c. ",; "",'.,,7.') 

, (b) The Secretary of the Treasury is 'authorized to (1) desi~ate 

places in the United States as ports of entry for civil aircraftarrrcing 

in the United States from any' place outside' thereof ;and '.for, merchandise carried ·on 'Such'aircraft, . (2 )-detail ,to ports' of· entry,rror 

civil aircraft sucboffieersand employees ,of the customs service .ashe 

may deem llecessary, 'llnd to confer orimpose'"1lpon.,any,bfficer;or 

employee of the' United State;;, stlitioned ,at .any such port of entry 

(Wlth the consent of the head of the Government deJlartment'or. other 

independent establishment under whosejurisdictlOn'ithe officer.·,or 

employee !s serving)'ianJ'; of the powers, 'privileges,orduties 1C?Uferred or nnposed upon' officers or employees of the customs .serVlCe, 

1lDd (3) by regulation'w provide for .theapplication to civil··air 

navigation of thidaws;and. regulations relating to·the administration . 6f the customs and.pnblic health laws to such extent and ,npimosuch . conditionBi8:s,hedeemSnecessary'.-, ',:. r; ~ •. ,:,->'J.".:,}~:;<;.',,;!: {)jh:;-,-·· 

(c) ThelSecretary;oLCommerce is 'anthorized';by':regulation,;oo 

provide .:for tbe ,application ;tocivil aircraft·pf. tnedl>ws ;and'regull><-

tions"telating" to the eIitry> .. ,an:d clearance, of [vessels; to 'such -extent . and upon such conditions as' he deems necessary. ..~ .'< ;".,,::; ;,!, 

c . (d) TheSecretary.·of;Labor is authOriZed to (1) designate-,8ny 

of the 'ports of; entry; for ciVil aircraft as ports of entry forjalienB 

arriving by· au-craft;£:(2)',detail·to-such .ports of·,entry;.such,c6fficers 

and employees of1Jle immigration service 'as .he may dee~ necessary, . and to : confer ·.or·,nnpQse,;.upon anY!'lllployee ;of·the i UI\lted Stlltes . stationed at such port of entry ,(vilth"the:consenLorthe;head·of 

the . Governmenhdepartment',.or other "mdepel!dent:,est!lblislnnent 

under whose jurisdictiOli the officer or employee is serving) .:any·ofthe 

powers,priVlleges, or d"ties 'conferred orinlposed upon officers ,or 

employees of the"mmigration service, and (3) by regnlation' to 

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6 LAW·'MEMORANDA UPON ·oriTh ·AERONAUTICS 

provide for the application to civil air navigation of :the .laws and 

regulations relating to' the ailministration of the immigration laws 

to such extent and upon such conditions as he deems necessary. ' '. , .. SEC. 8. ADDITIONAL ASSISTANT .sECRETARY OF. COM:J>fERCE.-'-.To .aid 

the Secretary of Commerce in fos:tering air commerce and to per· 

form such functions vested in the Secretary under this act as the 

Secretary may designate there shall be an additional Assistant Secretary of Commerce, who shall be appointed by the President, by 

and with the advice and consent of the Senate, and whose compensation "hall be fixed in accordance with the classification ·act of 1923. 

Except as ;otherwise· specifically provided, the Secretary 'ofCommerce shalladm.inis:ter the provisions of this act, and for such purposes is authorized (1) to make such regulations asareneees.ary to 

'execute the functions vested in h.im by this act; (2)'to make such 

expenditures (including e>'l'enditures for personal services and rent 

at the seat of government and elsewhere and for law books, books 

of reference, .and periodicals) as may be necessary.for such adminis.-

·tration and' as may be provided for by the Con"OTess from time to · time; (3) to publish from time to time a bulletin setting forth such 

matters relating to the functions vested in him by this act as he deems . advisable, inCluding ,ur.· navigation treaties, laws, and regulations 

and decisions :theremider ; and (4). to operate, and for this ·purpose >to acquire mthin the limits of the available appropriations hereafter · made by the' Congress, such aircraft and, air navigation :facilities. 

except airports, as are necessary for exeenting the functionBvested in 

the·.secretary of Commerce by this act .. :.... .' .;,; ,',': '::.,1: 

:,:;~:):ih~~citi~en~~ ~i~~s S~,;,~e.m: {i)~~L -vidual who ~ acitiz<;"iofthe United~tates?r ~ts. possessio~. ,arc (2) 

a partnersmp ,of which each member,.ls an rndiVldual who 18c a .'Clti, 

'zen of the United States'o~ its 'possessions, or. (3) a corporation,or 

'association created Or .organized:in the United ·States or'· under ,the 

-law 01' the United .states· or of.- any ',State,' Territory, or possesSion 

thereof, 01' which the president'and two,thirds or more of the,board 

of directors or .other'IDanaging .officers .thereof, as·the case.maYioo, 

are individuals wholU"e citizeus of the United States,iOrlcitSopos. 

"Sessions and in which 'at least 51 per centum uf the votiriginterest 

.is Controlled by :Persons who:are,citizens of the United States:ordts 

possessions; ,:c : "'. .,' '... '.,' '" .. ; .. ' . . '. . ., .' c·,,;.': "',; 

(b) The term" United States," whenusedin·ageogi-aphical8ense; · meanS theterrifuryComprising the several States,',Territories, 'possessions, ,and ·.the·District·ufColumbia· (inclnding the' territorial 

waters thereof), and ,the overlying itirspace; but shallilot·include · the Canal Zol1e. ." ....... ;., '''':,.' '" .', .. .. , .",,", .; ... " 

'ii,(c)'The term ~ aireraft.".;ineans any contrivance now lnioWD:or 

;hereafter invented, used; or designed' for navigation of or ilight :in 

the 'iiir,' except.a parachute 'or other contrivance .designed for'.linch 

navigation 'but used prlmarilyas safety .equipment.·· ,c.~«.J'i:::' hc" 

'".,.( d) ·Th",·tern{ '''public·,;tir.craft'' means ian ,aircraftjused :.:excluSiveIy·in·the'·governmentarsernce. ',.",. . 0',. ;" .' ."."",)., 

.( e r T~e '. term. "sJ;YiI cai~craft" m~ns any" aircraft other ,than" .. pubhc Rlrcraft.· "i"; '.'" """ •. ::.," '. i','f:> . ";:.; : .. :; .. , . ',.' "i"-.::·;; ::;r 

'_,1 -., ":Ln.;; ,:~ ::'~.j;'~>~ ;~':~~ L'~;':;~~0,;~~f"~~~:t/-l~:~~;~'~;'~;~~1~;~~' c; -\~ 

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gal ' the laws and 

f th~ -illligration laws , deems necessary. ' 

OF COMMERCE,-To aid , commerce and to perf under this act as the 

iditional Assistant Sec- ' 

,d by the President, by 

:e, and whose compensaiassification act of 1923. 

the Secretarv of Coms. act, and for such pur-

!:ions as ar.e necessary to 

: act; (2) to make such ~rsonal services and rent 

Id for law books, books 

essary for such adminisc 

Congress from time to 

llletin setting forth such 

n by this act as he deems 

;, laws, and "regulations 

.te, and ~or this purpose 

appropnatlOns hereafter 

ELir navigation faciLities, . g the functions vested in', 

~"means (1) an ~( ~r t+ 'lSessio~,or < 2) m" I who IS a clti- ~ 0] ;t. corporation o-r 

Lw.. .tes or under the 

'Territory" Qr possession " 

rds 'Or more of the board ' 

,eof, as the case may be 

fnited States or, its po~ un Qf the voting interest 

'theUnited States or its 

d. in a geographical sense, 

,.Stat":,, 'Territories, posmcludmg' the territorial 

,C/)j but slllllLnot include 

ritrivance now' hown or 

laVigation of or flight in 

ivance designed for such 

uipment., , ' 

jean aircraft 'used. exclu-

"}.,JJ 

nyl"ti~craft other than'" ,-,-' ., . . 

,Z· '.- _~ .' 

. c~ <,cf:: ' .. ' 

"(f) The term"' 9.~rcraft~fthe United:States "me~anyaircraft rc>!istered under thIS act. ,,' ", ,,:-:," - : " ,,"~:l"': 

,-" .... 

'(g) The te:rm "airport", means'a.!!'Y locality,~itherof,w":ter,.or 

land, which.;s adapted for the landing and.,taking Q:Ii 'o~ .. alrcr":ft 

and which 'provides faciliti es for shelter, ,supply, and rel?aIr of .alrcraft; or a place used regularly for receiving or dischargmg passen-" 

gers or cargo bv aIr. ' :',,': " 

(h) The term "emerge,,:,cy. landing field" means. any lo~ty, 

either of water or land, whIch IS adapted for the landing and talting 

off of aircraft, is located al.ongan airwar, and is inteJCmediate:to 

airpor!", connected by the aIrway, but, whIch IS not eq~pped WIth 

facilitIes for shelter, supply, .and repaIr of aIrcraft and 18 not us~d 

regularly for the receIpt or discharge of passengers or cargo by aIr. 

(i) The term" air navigation facility" includes any airport, 

emergency landing field, light or other signal structure,. radio, 

dir~~tional finding facility, radio or oth~r electrical comm:nucatio.n 

faei!,tYl and any other structureQr facIhty, used 'as a,,:, ald to ,all' 

naVIO'atlOll. .; '.. .' .", . ".. .: . ) 

(i) Th~ term "civil airway" means a route in the navigab!e'idr 

space deSlgnated by the Secretary Of Commerce as a routeSUltable, 

for interstate or foreign air ·commerce. ,::,' ~r 

(k) The term "airman" means ';any individual (including,.the 

, yerson in command and any pilot, mechanic, Qr member of the crew) , who engages in the navigation of aircraft while under way, and any , individual who is in charge of the inspection, ,overhauling, or repairmer of aircraft. 1 ... ,; ,-: .-~. .:" i":;" . . . ~: ;":,.:( 

SEC. 10. NAVIGABLE AlRSPACE.-As used in this act, the term""naVi.:, 

gable airspace" means airspa.c~ 'llbove -the, minimum safe -alt~tudes 

of flight pres~ribed by the Secretary .of0?mmerce unde,,'Se?tlOn'Si 

and suchnaVlgablealrspace 'shall: 'be 'subJect ·,toa public, nght>ot 

ireedoITl of interstate and foreIgn air navigation in con:formity:Witli 

the requirements o'f this act. '!"Ci', ~ ':""~"',rd~ ," ('< ' .. ':.;:~ _I "5.:15 ~ .-

'SEo.ll. :pENALTIES . ...:...(a) It shall be UJilawfuJ, except to thece.xteD.t . authorized or exempt under section: ~ _. :""" '(1 .t~.t;.d . 

, : (1) To navi,rr.te any aircraft 'within any' airspaee reservafuin" 

otherwiSeiIlan in conformity with the :Executive orders r~gulatmg 

.', ';;;~'qL~", 

:i~~~~~~~~ii~i~~~:~~~~~~;~~1~ 

:i·rcr~~,;i~~iY - , iaircr"ft, , wi.th,)ut an airman certificate, 01' ,in terms.;oi'1mY , 

such certificate. ," :0),' ""',: 'F' '''''U'." , (5) To pByjgate any aircraft otherwise, ,than in conformitY .'with 

the air trafficl1iles. """",!, ""',::," )":,,,' ."" .. " , .. -: ','l,:, :"_ ' 

", (b). Any .personwh,~ ~('l:) ,:v;,olatesany·provisio!1--o.f ' 

of:this section or any 'etitry':oi' clearance regulation 

tion 7, 'or (2). any, customs,,OrJpublio healtl'i T 
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48 LAW MEMORANDA UPON CIVIL AERON.!UTICS 

S"arION 15' 

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This section provides that this act shall take ·effect upon its passage, except that no penalty shall be enforced for any violation of the 

act occurring withln 90 days after the act is passed. 

(g) Statement of the managers on the part of the Ronse. 

NOTE.-'.rhe managers on the part of the House at the conference on the 

disagreeing votes of tbe two Honses on the amendment of the House to the bill as passed by the Senate submitted the following statement which appears at the 

end of the COnference report (House Rept. 1162, 69th Cong., 1st Sess.) : 

STATEMENT OF THE MANAGERS ON:THE PAR"I: OF THE HOUSE 

The managers on the part of the House at ·the conference on the 

disagreeing votes of the two Houses on the amendments of the Senate 

to the bill (S. 41) to encourage and regulate the use of aircraft in 

commerce, and for ·other purposes, submIt the following statement in 

explanation of the effect of the action agreed upon by the conferees 

and recommended in the accompanying conference report: 

The House amendment struck out all of the Senate bill after the 

enacting clause. The S~ate receded from its disagreement to the 

amendment of the House .with an amendment which is a substitute 

for both the Senate bill and the House amendment. 

The essential differences between the Senate bill and the House 

amendment may be enumerated as follows: 

'".1. Registration.-The Senate bill .restricted compulsory registration to aircraft.en!jaging in interstate and foreign commerce whether 

or not in the naVIgable airspace. The House· amendment covered 

all air navigation· in the navigable airspace, whether in interstate or 

intrastate commerce, _ -and whether. coriunercial ,or noncommercial. 

The substitute requITes the· registration of. aircraft engaged in the 

following classes of commercial Air navigation: . .. 

(a) The transportation in interstate or foreign co=erce of persons or property for hire, either in whole. or in part by aircraft, 

whether or not the air· portion of the transportation is interstate or 

!oreign or is intras~t": The trallSJ:l0rtatio!,- of property for hire 

mcludes the transportatlOn of the mails by aIrcI"lfft.· . (b) The interstate and foreign navigation of aircraft in furtherance of a business, as, for instance, the transportation of factory 

products from the main plant to a branch office, or the use of aircraft by salesmeIl or insurance agents or professional men while 

traveling upon business. The clause, of.course, would not cover the 

use of aircraft for the purpose of transportation from home to office_ 

The clause would have no unreasonably restrictive application to 

fligbts for scientific or experimental purposes in furtherance of a 

business, for the reason that such flights would not ordinarily be 

interstate or foreign, but· would be conducted wholly within the 

linlite of one State. . 

(c) The interstate Or foreign navigation of aircraft from one place 

to another in the operation or conduct of a business. Tbis clause 

would cover the gypsy flyer and the exhibitor at county fairs if he 

navigated his aircraft from a place of exhibition in one State to a 

"lace of exhibition in another State, or from a place in one State 
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~nON A'UTICS 

takB effect upon its pasel for any .. iolation of the 

passed. 

'he House. 

lse at the conference OIl the 

ment of the House to the bill 

atement which appears at the ~9th Cong., 1st Sess.) : 

PART OF THE HOTISE 

, at the conference on the 

atnBndments of the Senate.· 

latB the use of aircraft in 

the folloWing statement in 

Bed upon by the conferees 

mference report: . 

fthe Senate bill after the 

m its disagreement to the 

ment which is a substitute. 

.endment .. 

3enate. bill and the· House 

·i';/ npulsory. registra~· .. 

. I, .commerce whether 

HOh-_ amendment covered 

ce, whetber in interstate or· 

lercial or noncommercia..1. 

of· aircraft ·engaged in the ~ation: . 

r foreign commBrce of per-

.ole or in part by aircraft, 

msportatiOll is interstate or 

;ation of property for hire 

by aircraft. . .. 

.tion of aircraft in furthere transportation. of iactory· 

och office, or the use of airor professional men while 

,course, would not cover the 

'ortation from home to office. 

Iy restrictive application to 

urposes in furtherance of 8 . 

hts . would . not ordinarily be 

onducled wholJy within ·the .. 

lon of aircraft from one place· 

t of a business.. This clause 

rhibitor at county fairs if he 

.exhibition in one State·to a 

)r from a place in· one State .. . 

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LAW MEMORA.NDA UPON CIVIL AERONAUTICS 49 

where he conducts intrastate tr~nsportatiori· for hit". to a place· in 

another State where he cond~cts mtr.astate transportatlOn for hire. 

Under both the Senate bill· and the House amendment aircraft . were eligible for registration only if owned by citizens of the Unite.d 

S.t~tes .. Under ~e Senate bill a corporation was deemed to be a 

ptlzen If two-thIrds of th~ ~tock, whether voting or nonvoting, was 

owned by Umte.d .Sta!es CltIzens. The House amendment provided 

for.such reglstratlOn III case of a corporation ii 51 per ·cent of the 

V'?tlllg stocl: is controlled by citizens ·of the United States .. The subshtute reqUlres 51 per cent of the voting stock to be controlled by 

citizens of the United States. . '. . 

Und~r both the Senate bill an~ Ho,!se alnendment aircraft eligiHbe ' 

£o,r reglstratlOn COUld. Ob, tam :.:eglstratlOn even thoug .. h n .. ot Tequired to d? . so by the pen,,:lty provlslO'.'S. The substitnte. retains this p -

Vlsl.on, t?gether WIth the r Ulrement th t an' . . g 

reglStratlOn, wh£.J;hec..Qr noLEegmre to ~ ~r+ nlUst. conform· to 

!f:,::~iffions as t~. alrw~rt~~~nd as to the certification ~ 

'.2, Bati",!! of aircraft.~The Senate bill provides for the inspection 

of each aircraft before it is used in interstate. or foreign commerce 

and the certification of its condition, capacity, and safety at the date 

of inspectio,?-. Furth~r, from .time to time thereafter .the Secretary of 

Commerce lS authorIzed to mspect and test the. aIrcraft· as to its .Cc 

airworthiness .. Th.e:Honse amen~en~ authorized the Secreta:y of 

qommerce t<:? p~oV1de·:for the.examm~lOn and .ratmgupon re~st:a" 

ti()n aOld perIOdIcally thereafter of regIstered aIrcraft 1lSto theIr Rlr" ~orthllless .. The HoUse amendment would not require the examinatlOn to be made by officers of the Government. The substihlte requires 

tlJ-e Secretary to p:ovi~e for t~e examination and rati?-g of registered 

li.lrcraft as to theIr, !l.rrworthmess .. It further· proVldeSspecifically: 

that the Secretary may require periodic examinations to be made ·0£ 

aircraft in service lUld reports thereon either by officers or employees 

of the Departme!,~ ,of Co=erce or by properly qualified private 

persons .. In addi!lon;the Secretary may; in his discretion, accept 

as a basIS for rabng the reports of properly qualified persons empfoyed by mannfacturerS or· owners of aircraft, and after the first 

elght :",onths after. the passage of the .act, may deny registration to 

any aIrcraft applymg theref~>r unless ~l"particnlars of the design'-

and the calculatlOn~ upon whIch the deSIgn IS based and the materials 

and methods used m .the construction ar£ furnished 'hiin.·The Secretary.may, iro:", tiJrie to tinle,rerate. .aircraft upon the basis· of the 

above mformatlOn.·,,'.' . . . . ., ': .. , 

.' ·3. Ra:ti11f1 of ai1~en.~The.Benate bill authorized the SecretarY'oi 

Commerce to examllfe. and de!ermine the qualifications of individuals 

to ~erve a,s alr~en _u~on ·.or 1n ct;>nnection wif11 any aircraft: ~ ~e . 

Urut.:d ~tates- . The .,Honse' .. ~ndment, pr.oVlded A'o!, the:peno~c 

examlll~tlOn of ·any auman. servlllg upon or lll'connection ·W1th'.regu;-

tered alfcraft .. The' substltnteadopts the. provision 'of"the:lIoUse 

amendment.' , ;--.<"" " : . ", . - . "," ,,: ., , -, ..... . 

~ 40. Rating olai.r "fi'lJifra:t~n fqdJitie8:-;",/J;he Ho;"e ame~d~ent pro~ v;ded for the penod:C'BX~atlOn and rating o~ ~ir'Ilavigation facill: 

ties.. The Senate bill contamed no ,sjlch 'l,rOVlSlon. . The 'substihote 

adopts the Housejll'nviSion except that'SUchexaminatiom8D.d;rating 

need not be periodic. . 
( 

.'\' 

, 

" 50 LAW -MEMORANDA UPON·Crvn. AERONAUTICS 

5. Air traffic rule8.-The Senatebill pvovided the S!lcretary should' 

establishael'lal traffic rules for the manner of navigating and oper~ 

ating civil aircraft in intersta,te or foreign com:iru::r~e .. The ,I{ouse 

amendment provided that the Secretary of Comn)erce shall by regu-. 

lation establish air traffic rules for the navigation and protection of 

aircraft in the navigable air space or waters of the United States, 

including rule,S for taking off and alighting, signal rules for, land and 

water structures, rules for safe altitudes for flight, rules, for identification and marking? rules for maintenance of log books, and rules for 

prevention of colliSIOns between vessels and aircraft. . . 

The substitute provides that the Secretary shall by regulation 

establish air traffic rules ,for the navigation, protection, and identification of all aircraft, including rules as to safe altitudes of flight and 

rules for the prevention of collisions between vessels and aircraft. 

The provision as to rules for taking off and -alighting, for in?tance, 

was elilninllted as unnecessary spec.i.£cation, for the .reason that such 

rules are but one class of air traffic rules for'the navigation and protection of aircraft. Rules as to· marking were eliminated :for the 

reaSOn that such rules were fairly included within the scope of air 

rules for the identification of aircraft. No attempt is made by either 

the Senate bill or the House amendment to fully ,define the varioUB 

classes of rules that would fan within the scope of air traffic rules, 

tL. as, for instance, lights and signals along airw,>ys and at airports and l,':rii upon emel'genc;t landing fields. III general,~he~ rules wquld relate 

f?;f;j t~ th<;same subjects ~s th,ose CQveredJ!.,y,!av}gatlon law,,- and regul, a-

.!?') tlOnsand by the various State motor,Yeh,cle traffic codes. As noted : above, surplusage. was elimmate In .spe(n: rlng par Ie ar air tr8.:ffic 

rules .ill order that the, term might be given the broadest,.possible 

'construction by the Department of Commerce and the courts.:, ' , In corder to protect and prevent undue burdens' upon interstate 

, and foreign air commerce the air traffic rules """to apply whethel: 

the- aircraft is engaged in commercial or noncomniercial, or _:i,n. for~ 

eign, interstate, or intrastate navigation ,in the United States, and 

w,hether or not the aircraft is registered or is navigating in a 'civil 

.':!!?P:"blia airaraft.:..-:Unper the S!lnate bili public aircraft were , .. exempt from all the regulatory interstate and foreign commerCe ree 

\ quirements o~ the act. Under .th~ H?use amendment l?ublic aircraft , \ were exempt m respect of all naVIgatIOn from the reqmrements as to 

, \ ,airworthiness .,nd the Tating of airmen, but notfrdm air traffic rules , upon civil airways nor from registration. Under the substitute , public aircraft of the Federal Government are. ,exempt from the , ' airworthiness requirements and the, regulations as to the rating of 

~en, unleS1j .sw;b aircraft are ~.!:'!ily r~g,WJ.t-but p1ibl~c 

. .alrcraft'll:t"fue Federal Government are 'l1l!texempt from the aIr 

: -- Ltr:ffic"rule~, <lxce,pt.inso ~ar as the Sec~e~ary Of,' War has control 

\ OYer exclUSively military aircraft upon' military alTways., , 

-"I.: Foreign,airaratt.-::Under the Senate bilL foreign aircraft were 

,subject, to all the ~e~atory provisions as to f~reign ,,:ommeree and 

could:not engage m mterstate nor, apparently mforelgn'Commerce 

in the UnitedSilites.' Under the Bouse amendment ,foreign aircraft 

could be exempt from any ,of the regulatory :provisions governinll 

foreign, interstate, and intrastate air navigationi:f the foreign DB#on 

\ tf i ': 

( 

J 
.~I\ ACT TO INCREASE THE MONTHLY MAKlHUH NUHBER OF 

FLYING HOURS OF AIR BLOTS, AS LIHITED BY THE 

CIVIL l'ERONAUTICS ACT UF 1938, BECAUSE OF THE 

lvJ1LlTARY NEEDS ARISING our OF THE ERESENT \~AR 

LEGISLATIVE HISTORY 

PUBLIC LAH 77-535 

77th CONGRESS, H.R. 6799 

AERIL 29, 1942 

Compiled by 

FAA LAW LIBRARY 

1965 

I 
!PUBLIC LAW 53.5-77TH CONGRESS] 

[CHAPTER 266-2D SESSION] 

[E. R. 6799J 

AN ACT 

increase the. monthly maximum number of .flying hours of air pilots, as limited 

bv t.lJc,Civil Aeronautics Act of 1938, because of the military needs arising out 

'- of Lhc prcl>ent war. 

B, it enacted by the Sena.te and.R ouse of Representatives of the 

United States of America in Oongress assembled, That the maximum 

flying hours in interstate air transportation prescribed by paragraph 

(J) ofseetion 401 (1) of the Civil Aeronantics Act of 1938, as 

amended, shall be one hundred h01lrS·of flying per month: Provided, 

Thut, to the extent the Civil Aeronautics Board finds, after consultation with the Secretary of War and the Secretary of the N2.VY Or 

. UI~.ir de~ign~ted. re'presentatives, that the TI?-2:ximum h:rBi~above pre- , SCl J hed ]5 not requIred by reasons of the mlhtary neens or the armed 

forees of the United States, the Board may fix, from time to time, by 

regulation applicable to one or more air carriers, the n1aximUlll flyillg 

hours at less than one hundred hours: Provided lurther, That the 

Board'. m accordance with such· p1;'ocedure as it may prescribe, may 

,authorIze the ma.ximum fl:YUlg hours hereinabove pI'~vided f?r to be 

exceeded to the extent necessarY to complete a partIcular flight for 

milit.ary purposes. -' . ~ . 

SEC. 2. Everyair carrier shall comply with the provisions of tlils 

Ael and ~he regulations fixed by the Board hereunder. The powers 

of the Ciyil Aeronautics Board with respect to the enforcement of 

tile eml Aeronautics Act shan be available to it in the .enforcement 

of (h]s Act, and the penalties prescribed in section 902 Cal of that 

;iel shall be applicable to violations of this Act or any regulation lESucd thereunder. . 

SEC. 3. This Act shan remain in force during the continuance of 

the present war and for six months after the termination of thw ~ar, or until such: earlier time as the Congress by concurrent resolu- . IOn or the. President may designate. 

. Approved, April 29, 1942. 
REPoln' 

No, 1944 

I\('I:I:ASLKG THE MO"THLY MAXlMUM NUMBER. ,OF FLYING 

IIC>l'llS OF AIR. PILOTS, AS LlMITED BY l'HE CIVIL AERONAUTICS 

,ll'T OF 1938, Dl'RlKG THE PERIOD OF THE PRESENT WAR 

\1,\ Irr'"fl 24, 1942.-Committpd to the Committee of tlie Whole House on the 

stat.E' of the Unioll and ordered to be printed 

\11'. nULWINKLE, il'Olll tLl' COIDll'liti..oe OIl Illtel'sta.te and F0i'eigll 

COirunCl'ee) SUlmlil,ted the following" 

REPORT 

[To accompany H. R. 07991 

'\'U(I COl1)Jl1itt,f'.l' on InteJ'stu.te and }"?oreign Oommerc('.] to 1,Vl101U 

"'liS l'"j'm'l'ed thl' hilleR, R. 6799) to increase the monthly maximum 

lilllll!Jl\T of ii.y.ing hours of air pilots, ttS limited by the Oivil Aero-

!I;lulics A{'.f of 1938, because of tllt, military nee-ds arising out of the 

PI:l'.";(,11i Iii-aI', haying eOllsidered the smne, I'eport fl1vorably theI"eOH 

\\-1\ 11 amcndmellts and reC0ll1111end that tho. bill as nmendBd ·do pass. 

The' U,llll'Illinlt:mts are us follows: 

,l',Ig't' ], liue· 4, aftpT" 401-11 changl~ Ii (1) '.' t.o l( (1) n . Page 2) line g. 

:lilyl" t.1IP ·words it eomply with)) insert. the words Ii the l)l,{)Yisions .of 

1111":-; act and'l. 

Plil{POSES OF BILL 

, , giy:1J~y-fiVt~. Dours is IlOW the lll[lxill1Um flying tilne 1)81' 1I1Onth f.01' 

,jol, ~I!r-Jjn(' pilot, .. 

I, ,J h," purpose of t,his biljis to extend tll(' maximum, flying time. to 100 

( til S ]Jt'.r m.ontL. The CIVIl AeronautlCs Board will ha.ve the pov{e-.r 

1(1 s:.\WJ'l,f'll sueh timE' when the mU;ximulll is not required by military 

1.I,l'l't1S. It will abo 11.a.\"'"6 powe.r to n.uthorize sueh flight, in excess of ~dvh J?3xinmll1 t.o thE' f'xt{~nt n{'{'.essaTY t,o cOml}lete a particular .(.I~o'bt J\ll. 1', ' .I...ll.lS 

,,1!l.LIl.,u.ry purpose.s. , f I b . .'ilet is teu1pOl'ary in its operation and will k'rminate 6 11lonths d \(.'l" tIl{' end of the "var or at such earlieI' tin.le as Congress by COD-

(·IIl"J·('nt 1 t' tl 'P 'il d ' , .. reso.Lu "lon or ., 10 ~ reS1 . e·nt ll13,y eSlgnate .. " ~.r];e 1I1ll1wdint.e effe.ct, of this legislation will be to increase the 

1 \ d l ,1l?le [tIT pilot 11ln.n]Jowr.r for civilian and military air trans-

,\OI·hllOn. Tbe' ineH'ased flying time. will add the seTvice equal to , lal 110W giYf:'l1 by threE' or foul'llund.red experience.d trained pilots .. 
2 INCREASE FLYING HOrnS 

T'uC' S0ct'l'tnr:r of \Vit.l' sUt.Lt.'S: ' 

It i:-:t IlrlprecialC'd, in this COHllCctiOlt, th .. ~t cLlnt.LlItlC-U uniutcl'tupteLl service bl' 

domestic l1ir line::; i:::: essent,ial ill the iuLere:-<t::l of llLLt.llJun1 seclll'ity. 'The purpo:i~ ()f the l~i'Ol.?()sed. legi.':latioll is t.o muke ~t tJ()8s~ble to ,ut.ilize t,i~e, set'vice:5 of expert· t~1H;eu lill'-line pllut.~ HI the Army ~11\(1 );l.'lsy \nthL)(lt tuterl'uptmg dome~.;tie ctir-lint 

,.>!:hedule,;. . 

This legidl'i,tioll wUl not l'(:sult in ~tny ilH~.re~tBl'J cost tu the Gu\,efll. 

IIl<:nt uS metlsured by Hying bJurs. it c011LCmplnL(·~ n!) o\'(;rtllllg ~ pu,ymcnt [or Hying; SL'f\'lcL;. . 

It is worthy of note tlnl..L lbl.' _\jl' Line Pilots As;;.;ucittLlGll. 1m,s eOlUl' 

[orwul'd YOlulltnrily to lllti.:le tbis contribution t.o the Nt"tion'd \var 

l'ffol't. It fq)pro\T('S the proposhl t'ha,ngl'.d the lu.w to necompii8h Uhtl 

purpos{'. z...lr. Dn'''';id L. Behnckt:, pn'Bidl'nt of tlll' .:\'i1' Line ,Pilot, 

~\.ssocin tion, as n, spoke'sEw.n of tl1l'tr'llH'mbt'l's, l'.s::Pl'l'SSl'(t th~il' ptlq)OSI' 

in t1W8t' sinlph' won\::;: 

The pilot::l t'f'01 ! hill tlH'Y wal\t ttl du wi1a,t tbey C:Lll for t.heir country in iLs hom '( 

of dire t1l~ed. ,~ * >I: We tHe willilw.: to ddcr tlh: dfeets of the S5-hollr limiw-;{-

t,ion and to tly \\'it}l no IhnitDJioll on ifip;ht~ .\llLl'\", u.rf' purdy Iur military l)nrpo~r" l 

fur the dural lOll Of the present: war. ,'-

This lJilliws till' upprtwt1.1 of n\l' Arwy air tortT, tlH' HUf{\u,n or Ao.ro-~' 'llnntic:7. of ll11' :r-~<l\,~r, tlH' Air Tnln;,;port Associt\t.iotl, t,ll{' C:iyil Al!lti- ' 

llt\uties ... \\lni_inistration, till' Dt'P~lrtllll'nt l)[ ('o.mllll'rCl', thl' CiYi! 

Al'rOlHlutit'B DOllnl, ,uul till' Air Li.n'c' Pilots ,,:1.s8oL'i~ltion, 

It also betS tll(' l1})pro\'t).l of t1H\ Bul'l'uu or t.he Budget, 

Its l'tu:ly l'lleU',l1l1vnt is of (\nwrgenvy llllpOrhn)J't'. Tttl' ('llmmiltl'r ' 

Ll'COIllIlwnd i.ts ptlSStlgl'. 

o 

:'-' 

1 

I 
INCREASE FLYING HOURS OF AIR PILOTS 

-============================= 

HEARING 

BEFORE A 

SUBCOMMITTEE OF THE 

COMMITTEE ON COMMERCE 

UNITED STATES SENATE 

SEVENTY-SEVENTH CONGRESS 

SEOOND SESSION 

ON 

H. R. 6799 

AN AOT TO INCREAS.E THE MONTHLY MAXIMUM NUMBER 

OF FLYING HOURS OF AIR PILOTS, AS LIMITED BY THE 

CIVIL AERONAUTICS AOT OF 1938, BECAUSE OF 

THE MILITARY NEEDS ARISING OUT 

OF THE PRESENT WAR 

APRIL 10, 1942 

Printed for the use of the Committee oll'COmmerc.e 

UNITED STATES 

GOVERNMENT PRINTING OFFICE 

71521 ~ ASHIKGTON : 1942 
COMMITTEE ON COMMERCE 

JOSllE W. BAILEY, North Carolina, Chairman 

RATTlE w. CARAWAY, Arkansas CHARLES L. McNARY, Oregon 

BENNE'r'l' CHAMP CLARK, Missouri HIRAM W. JOHNSON, California 

JOHN IT. OVERTON, Louisiana ARTHUR E. VANDENBERG, Michig;an 

'rREODORE G. BILBO, !v:nssissippi W. WARREN BARBOPR, New Jersey 

FRANCIS IvIALONEY, Conn~,ct.tcllt RALPH O. BREWSTER, Maine 

GEORGE L. R.ADCLIFFE, Maryland lL~ROLD B. BURTON, Ohio 

CLAUDE PEPPER, Floritla 

JOSH LEE, Oklahoma 

LIS'l'ER RILL, _Uabima 

JAMES 11,'1. J:vlEAD, New Yorl~ 

PRENTISS M. BRO'iVN, Micbigml 

MON C. WALLGREN, Washilllltoll 

W. LEE O'DANIEL, Texus A. RAND JAMES, CT.erk 

CECU. E. NOU.~[ENT, _lssistant Clcr{: 

2. SUBCO'YIMITTEE ON CIVIL AERONAUTICS 

JOSLm "'IV, lU.ILEY 

JOSIT LEE 

LISTER HILL 

JAMES M. MEAD 

PRENTISS 1\1. BROWN 

U 

BE::-1"NE'l"r OHAMP CLARK, Clwirman 

CHARLES L. McWi .. RY 

A1l.'rrrUR H. VANDENBERG 

W. WARREN BARBOUR 

HAROLD IT: BURTON 

b 

The 

of .tho 

10:30 : 

of tho 

Pros 

mittep' 

Pl'GS 

Sen:} 

We wi 

montll 

I wi 

(Thl 

A.:"\fACT 

Be·if. ~I.Jnmit:( 

t:ran,'1po 

na.l1tics 

Prol'ii.le, 

,\vit.h th 

n'l)reS(~1 

]'('a;.;ons 

may fix 

tlll) Uln.: 

till: Bm 

fll\' ma; ill'('(·'s~n 

l:'lr::c:. n'.!~!lb.tj 

Bna.rrl \ 

:dol(' to 

:)!)3. (al 

1C:~llt'd t 

\\"~ll' 3.nt 

a:-: tbt, L 

P:t:-i:){ 

.\.tte~ 
:an 

TO INCREASE FLYING HOURS OF AIR PILOTS 

FRIDAY, APRIL 10, 1942 

UNITED' STA'TES SENATE) 

S1"BCOMMIT'l'EE OF 'rHE COMMITTEE ON COMMERCE, 

Washington, D. C. 

TIlH sul)('.onm-ut,t.ee ll10t, pm'sul1ut. to eall, in the eommiUee l'OOnl 

pI xbr Sl'llatl,- COlll1nittoe on Oomme.l'ee, Ul the. Capitol Buiding, a.t 

lO::W tl. 111.) SCllD,tor Bennet,t, OhaInp Olnrk, of l'dissOlll'i, c.hau'lnan 

l'f t·hl' 8ubeOlll111ittee, presiding. 

J'n:Sl'nt: Senators Clark of lvlissouri (ehninnan of the subeo111-

wil·i,c{'), n.nc1 B].1l'tOll. ' ' 

,1'res('.!)!.01so: Sen[1t.or Put ?l.feCnIT"n. 

Se.na.tor CLARK of 1\1issoul'i. The. 8ubcOlnmittee. will come to order. 

\\'" will take up, first, H. R. 6799, which is a bill for extending the 

monthly lllaiilnUlll number of flying hours of ail' pilots. 

I will ask to hnvc insertrcl in the record at. this point H. R. 6799 . . (Tlw hill referred to, H. R. 6799, is here printed in full as follows:) 

[H. R. Gi99, 77tll Dong., ~d se.ss.j 

A!\ .6.0'1' '1'0 increaso the monthly maximum Dumber of flying hours of ~iir pilots, as limitrd by the Oi\'il 

ANonautics Act of 1938, becLlusQ of the :!Jlilital':r needs arL~illg out of the present war 

Be it ena.cted by i-he Senate and Honse of R.epresenlatives of i.he United States of 

...-hner£w in C'Ol1{lj'CSS al;l,'wmbled, That. the maxilllUlll fiyillg hours in iuterstate air 

tl'nusportatioll prescribed' by paragraph (1) of section 401 (1) of the Civil Aero1l:1.utic8 Act of 1 ~3S, as amended, shall 'be O1le 11Undred hours of flying per mOllth: 

Pl'om:ded, That, to the extent the Civil Aeronautics Board finds, after consultation 

'with t.lle Secretary of War and the Secretary of t,he Nayy or their designated 

l'{'presentat.iYes, t.hat the .maximum hereinabove prescribed- is not required by 

reasons of the military needs of the armed forces of the Ullited States, the Board' 

may fix, from time to time, by regulation applicable t.o one or more air carriers, 

the ma:!..'immu flying hours at less than one hundJ'ed hours: Prot,£ded jtl1·thor, That 

the Board) in accordance with such procedure as it may prescribe) mayauth9rize 

1.he m~l¥imum flying hours hereinabove provided for to be c:s:ceeded to the extent 

lwCesssry to complete a particular flight, for milita.ry purposes. 

SEC. 2. Every air carrier Sh911 comply- \'lith' the proYisiollS 'of this .. \.ct and the 

regulations fixed by the Board hereunder. The pmycrs of the Civil Aeronautics 

Board 1Yitln'espect to the enforcement of the Ch-jl Aeronautics Aet shall be ayailn.ble to it in the enforcement of thifol Act, and the pe11alit,es prescrib("d in section ,~02 (a) of that Act shall be applicable to violations of this Act or auy regulation 

Issued therelmder. , 

SEC. 3. This Act sha.ll ,re-main in foree during the cont.inuanee of t.he present war alld for st." months after the termination of t,he war, or ,mtil sueh earlier t.ime 

as the. Congress by eonCUlTent resolut.ioll or t.he President may designate. 

Pa<::sed the House oJ R.epresent.atiYes Mareh 27, 1942. 

Att.est: . 

SOUTH TRIMBLE, Clerh. 

Senator CLARK of 1,fissouri. Is Captain Be.hncke present? 

11r. BEHNCKE. Yes, sir. 

Senator CLARK of Missouri. I beli,,'\"o you want to be heard on tills· 

bill. ,Tnst have a se'lt. 

1 

I~, , 
. 

J 

2 L"iCREASE FLYING HOURS OF AIR PILO'IS 

STATEMENT OF DAVID L. BEHNC}l:E, PRESIDENT, AIR LINE PIlOTS' 

ASSOCIATION 

Senator CLARK of MissonD.You are the president of h'1e Air Line 

Pilots' Association, a.re you not? 

Mr. BEHNCKE. Yes, sir. 

Scn>1tor CLARK of MissoUTi. The subcommittee has before it H. 

R. 6799, with.which you are familiar, and we shall be very glad to 

hear from you as pl'L'Sident of the Air Line Pilots' Association and to 

have your views [l.,S to the measure. 

Mr. BEHNCKE. Mr. Chailman, insohr as the Air Line. Pilots' Associu.tion is concerned, we are in favor of the measure and would like to 

see it passed with all possible 8Ocl'ediency. I have a brief slateme.nt 

to make which covers the highlights in this situation. 

SellittOI' CLARK of Iviissouri. You miLy proceed witll your statement. 

Mr. BEHNCKE. Th>mk you .. For tho. PUll'OSC of the record, my 

name is David L. Behncke. I "m president of the Air Line Pilots' 

Association \',·-hich is an organization which represents, -vvith minor 

exceptions, nll of ll.merica's air line pilots operating in both domestic 

n.nd foreign air transportation on .An1.crican flag (L.ir lines. This group 

now numbers more than 2)000. 

The pUTpose of my appearance before tbis committee is .to say a 

few words about H. R. 6799 which was introduced in the Senate as· 

S. 2.389 by Senator Robert Rice Reynold,s, chairml1ll of the Senate 

Military Affairs Committee, on lYlarch 19. It was introduced in the 

House by Congressman Chrence F. Lea on )YIarch 16, 1942. Hearings W0l'e held on lYhrch 24 before the House Interstate o,11el Foreign 

Co=erce C.ommittee and the measure was reported f,,;vorably "nel 

without ch>1nge on the same day, plaeed on the consent calendar, tend 

a few days later, on March 27, it was passed by the House. 

As I und.erstand it, the measure that tbis conlllittee is considering 

here today is H. R. 6799. In order to expedite matters alid in the 

interest of brevity, I would like to say right at the o)Itset tbat the air 

line pilots whom I represent >1re in favor of tbis bill passing the Senate 

in eX>1ctly the same form as it p>1ssed the H.ouse. This legishtion has 

been submitted to all of the 51 directors of the Air Line Pilots' Association, l1lld they approved by maiority vote that it be passed as. 

written, l1lld as it passed the House. 

For purposes of clarifying this situ>1tion, possibly it would be a good 

idea if I would review briefly the background of the Federal 85-hour 

monthly IJDlltatlOn for all' pilots who operate on the country's air-hne 

transport network. This Federal monthly flyiJlg hour limitation is 

now inchided in the Civil Aeronau~ies Act of 1938. The Labor provisions part of this bill, the CiviYAeronautics Act of 1938, contains 

provisions wbich incorporat.e tVNational Labor BO>1rd Decision No. 

83 whIch was Issued on MayiO, 1934. When referrmg to the flywghours of pilots engaged in air transportation, tbis Decision reads as 

follows: "Eight-five hours of flying shall constitute the monthly 

ma.ximum for air pilots." 

There is eonsidel'able. ba.ckgro und a.s to how this· decision was 

arrived at., and in order to expedite matters, in view of the waJ'~ 

l1nd sO forth, I am of the opinion that it is un.necessl1lY to review all 

of tbis at this time. Briefly, the pilots feel that they want to do what 

they Cl1n for therr country in its hour of dire nced .. The pilots finuly !' 

f, 

! 

r 

l. . ~ .. 

. . ~ . 

. ,s.dS'-'~'·"·"'-'-"""", ... ""-",v*,,t"""y,,)it;~,i"·iil'~;f,:;;\:'.;'''J''"';'',;i'''''k&1:f0,~f,ta 
PILOTS' 

iir Line 

re it R. 

glad to 1 and tD 

;J Associrl like to 

Jltement 

atement .. )ol'd, ro-y 

Ie Pilots' 

jh minor 

domestic' 

his group· 

tD say,," 

3enate aBo 

le Senate 

,ed in the· 

}, Bear-

:! FOTeign 

:ablyan,d 

tldar, and 

)nsidering 

md in the 

:at the air 

,he Senate 

lation has. 

.ots' Assopassed as 

be a good 

al85-hour 

V's air-line 

nitation is. 

:,,,boT pro- ~, contains. 

jcision No. 

the flying 

n reads as , monthly 

cision was 

f the war . ,. , reV"leW all 

to do what 

ilots firmly 

INCREASE FLYING HOURS OF AlR PILOTS 3 

believe there should be no other .fae-tol'S, reasons, or anything else 

wha.tsoever, involved in the passage of this hill exe-ept military need. 

It is pUTely and simply a :military measme, and our organization has 

consented to endorse it strictly on that basis with the understanding , tbat it will pass out of e,.-i.stence completely and irrevoeably when the 

war ends, at which time· section 401 (1) of the Civil AeronauticB Act 

·of 1938 sh",ll a.gainbe in full fOTee and effeet.. 

The 85-hour monthly limitation faT air pilots engaged in air-line 

tnmsporta,tion was fu'st incorporated into Federal law approximately 

8 years ago on June 12, 1934, when it became a part of Public Law 

No, 308, commonly r",erred to as the Air Mail Act of 1934 and passed 

by thc'Sc.venty-thirclCongress. Public Law No. 270, Amendment to 

Air Mail Act of 1934, was passed hy the Seventy-fourth Congress on 

August 14, 1935, and also included the line pilots' 85-hom monthly 

linoitation, Finally, it was includecl in: tbe Civil Aeronautics Act of 

1934. This la.w has worked out very well.· It has adde.d immeasmably to the stl1bilization of air tTansportation gener,,]]y and to air 

·sltfet,y. It hlts also added greatly to the physical well-heing of the 

pilots. 

. When the congressional .committees eonsideTed the Civil Aeronautics Act of 1938 which supm'seded i1U previous Air Mi1il Acts, they 

'were extremely careful to include the 85-hour monthly limitation: 

As a mattm' oHaci;, these oommittees, after lengthy hearings Coud study 

of this and oti,er parts of the proposed act that were designed to protect 

tile pilots, included provisions dealing with the 85-hour monthly 

limita.tion in two parts of this "ct. The first time it is mentioned is in 

s.ection 401 (1) and it is again mentioned further along in the bill in 

sectiou 415~B, which reads th(ttr--

Pr-ovi-diDg nothing ill this subsection shall be deemed to autl101'ize the Authority 

·to exempt B.ny air carrier hom any l'eq\lirements of this title, 01' allY provi.siol1 

thereof, or any rule, regulatioll, terms, eonditiou, or limitation prescribed there-

'under which provide" for llla:.;,.."imum flying hours for pilots or copilots. . 

Summarizing, this bill H. R. 6799 which you are eonsideringhere 

t.oda.y, provides that the effects of the 85-hoUl" monthly flying hom 

provisions of the Civil Aeronauties Act of 1938 covering air p1lots 

·engaged in air-line air t,TD.nSpoTtatioll) be deferred for the duration of 

the present War. Next it makes it possible fOT the Civil Aeronautics 

Board to make certanl that the extra flying hoUl"s provided by this 

bill are not used for anything but military needs, whieh is the whole 

intent and purpose of this legislation. In other words, the general 

idea behind this meaSUl"e is that it sbould not be used for profit nor to 

further the private business n1terests of the an' carriers .. It alSO' provides that tlle Civil Aeronautics Board shall have power to enforce 

the provisions of H. R, 6799 and the provisions of any regulations 

th .. t may be promulgated by reason of authority vested nl'it by tbis 

law. 

The last paragl'aph of the bill is a.n automatic termination pro"ision 

which provides that "The act shall remain in force during the COlltinu(tnce of tl,e present war and for 5 months after the termination 

of the war" atwhieh time it becomes inefl'ective. It is fmther pronded that this period may be shortened by joint Tesolution of Congress 

Or by Exeeutive order of the President of the United States. 

'['hat is about all I have to say, gentlemen. I might add that the 

'S5-hom law is one of the most cherished rights that has even been 

... 
4 I~CREASE FLYING HOuRS OF AIR PILOTS 

gl'anted to the a,ir-line pilots by the Congress of our coulltry. W-e havE-' 

alwn.ys ll.'PPl'ecio;t.ed what a.ir-minded Senators and Congressmen lli1ve· 

dOlle- to estu.blish it limitU.tiOll that has worked out so ,veil-not only 

for the pilots but in mrmy othel' Wttys) and we have contiullOllt'31y . 'Iva.te-hed to see tlU1,t it h:1,s been ellfot'cell. It is in effect at the present 

t;Ul1C 011 all of the d0111estlc air lines covering 0.11 of th8 air pilots 0n1-

ployed by such lines. However, all this not\:yithstuuding, the' pilot.s 

ft.I'C ready and willing to do wha.tc.vel' tl.H:'Y can to help OLlI' Corrun~nder 

in Chief, the' President, further the ,Yal' euoet, a.ncl thel'efoL'e, we u..re 

w-illim~: to agree to defer tho e.f-Ieets 0.£ the 85-hour limitation and. to 

fly with no "limltD,tlon to complete p"rtlcubr Hights tbtt ,,"'C purely 

11lilit<1ry "nl1.lStn fughts "for the <.iLuation of tile present Wt"hl'. Obvi.-

ously~ the pilots do not wish to see· il..1l,Y 0'£ these estTi1 flying hOlITS l..Lsecl 

for private p.rofit, and it is with those undCl'stfl,lldings thtl"t I have just 

outlined that we give OUT <..'ndorselllent to bi.ll H. R. 6799. 

The nir-li.ne pilots strongly suggest thttt it be passe.d exactly tU:3 

Vv"Titten f\,nd exactly u.s it ptLsse.d the Rouse. 011 ivin,TCh :}i. 

Before ending my re.uu1rks, I \vouhllike to StLY that the inclusion of 

the 85-hour mOI\thly limitation on ,Ju~c 12, 1934,-in tlll'..Air ~vlail Act 

of 1934, ''I,,~tl.s l1utrle· possiblo by one of your most able collet1,gues a,nd a, 

nlember of this COlllnitteo-S(m"a.tor James ;vI. lv[ea.d of N c-w York. 

H-e, first conceived the idea 'of incluuing the 85-hour liulit,u,t;ion ili D, 

Fecle.l':11 staJ,ute -vvhen 110 WI1S' chn.irrrlO,ll of the House Post Office and 

Post ROD"ls Committee while a Reprosentotiv8 from the Forty-s<'cond 

District of the St,at,e of Nevr York. Since that trow. he 1m3 been 

instrumental in eontinuin,g this limitn,tion in snbsequ('nt. lltr-lllt1illu.\vs. 

For fill this, the a,ir-mnil piJots who man the N n.tionls tiil' liners and 

who fly to f:1[' rn\Tay points sC:lttc.rt'll ahl10st th:roug'hout the ('ntin~ 

Western Hl"lluspheTl:, oIVa em undying debt of gTu.titudl-' to Senntol' 

Meael aDd the many otl1Or proven lrion,l8 of the all,cline pilots, both 

i.L'l. the. Senn,te f\,nd in the House. 

The pilots wish to to,Ln' this opportunity to point out how well this' 

85-houT limitation has 'worked out in ac.tuD,l prt"1ctice. It has l1dcll'(l 

m.uch to the proposition of placing ..:-\n1J~,l'ican air tra.nsportu,t,ion fore.-

nl0st in world air C.OffiJlll'TCt' tl.nd to l11a.ke it such tL valued assl\t, to 

national defense. now thtLt our COlmtry is at war. The 85-hoUT monthly 

limitation fo[, air pilots hl1S probably adder] mOre to this !1ccomplishment than anyone othe.r mea·Slu'e. This part of t.he Civil Aeronautics 

Act of 1938 ht"1s for almost a cleeade guaranteed goo(l operating prae-· 

tices eluring peacetime ,mel it has adelecl .llumeasnmbly to air safety 

and to the physical well-being of the pilots. Now, In time of war, the 

cleferment of tills illnitt,tion ·for military neeels makes it possible for 

Unele Sam to utilize experienced air-line pilots for militl1ry purposes, 

and at the Sl1me time keep the air lines operating, which, also, is lllportant to nationl1l defense. 

If all the Mlditional flying hours of e..-<perienccd pilots tlmt this hill 

affords are. utilized for miJittwy needs, it will mean :lO,OOOaclditional 

flying hams monthly ancl360,OOO Hying hours yearly, willch, withont 

getting into' involved arguments, is 11 lot of £lying hours of highly 

experienced pllots and something that is of inestimable worth to national defense, especlo11y at this sta.ge of the war. 

In orcler to keep the record stmlght as to the backgrouncl ou wbi"h 

the pilots' S5-hour limitatlon lS based, I woulellike to include in the 

record v..ith your permission, as exhibit II a resolution of the- .. A.('ro· 

j 

, 

I 

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I 

I 

rxCREASE FLYING HOURS OF AIR PILOTS 5 

Me.dieal Association of the United States which was before the K "tional Labor Board of which Senator Wagner was Chairman, 

when it includec] the 85-hOur monthly lilnitation section in its decision 

No. 83 issued May 10, 1934, and which was first ineorporqted into 

Fede""llaw on June 12,1934, under the sponsorship of Senator Mead, 

for the purpose of demonstrating what the basis of the 85-hour 

limitation really is. 

The Aero Medical Association of the United States is a,n organization made up of practically all of the lea,ding flight sUTgeons from the 

l'{'g"ulU.t,Ol'Y agency of the De.partlnent of COlnmercel a.ir-line transporLa.tion, conunerc.ial aviation, generilly, and the Army and the 

Nay\,. 

'IV, th your pm=ission I would also like to include a wpy of decision 

No. 83 of the 1'1' "tional Lahor Bo"rd in this reeord, as exhibit II, 

the 85-hour monthly limit"tion provision of which is now incorporated 

in the. Oivil AerOllilutics Act of 1938. Sena.tor Robert F. Wagne.r W:1S 

ChairIDs,n of the National La.bor Board when this decision was issued 

all lvby 10, 1934, . Tha,nk you for your time, and we hope that H. R 6799 will be acted 

upon with every possible degree of exl'ediency, 

Senl1tor CLARK of Missouri. The cloelUllents to which you have 

referred to in your statement wlil he made a p"rt of the record. 

(The documents referred to "nd submitted loy the witness are as 

follows:) EXHIBIT I 

A Resolutioll by the Aero Medical Association of the United Ste,t,es of America on 

Which Was Based the 85-ho111' Monthly Flying Limitation for Air-Line Pilots 

SEPTEMBER 3, 1933. 

vVhcl'eas the Aero Medical Associatioll of the United States considered the 

problem of ma::dnmll hours of flying for air-line· pilots and thl'ough a special 

uonunittee' recommended that do,ylight flying should be limited to from 90 to 110 

homs per month, depending upon the terrain, weather, and passenger loads; and 

Whereas said committee recommended that night flying should be limited to 

from 60 to 75 hours; and 

"Vhereas said cOlnmittee recommended that the hours of day and, night flying 

reconunended, represented a mean average of 83% hourB of day aDd night flying; 

and , Whereas said c,ommittee based its recommendations upon the advice of the most 

emiuent authorities available; and . Villwreas said recommendations 'were made in September of the ye.9T 1931~ and 

at, a thne when the speed of aircraft was scarcely 100 miles per houri and 

Whereas increased speeds have brought about conditions in air-line piloting, 

and 

Whereas air-line pilots who have fio-vl'll up to or near the maximum of 110 hours 

per month as prescribed by the aeronautics branch of the Department of Commerce, and 

-VV-hereas experience and obsenat.ions of :llight surgeouB has indicated a growing 

tendency t.oward cumula.tive fatigue among pilots, and" 

\ifhereas it is au o}Jinion among outstanding aeromedical experts that flying 

height speed equipment involves added human stresses, and 

Whereas fa~al seddeuts ~mong i¥r-line pilots have oe~urTed ODe in eyery 29 

dayS for a penod of approxImately 5 years, therefore, be It 

Resolved, by the A.BTO 11'[ edical Associaf,ion of the United St-at.es, in il.s fifth anntl.al 

rneeting~ assembled at Chicago, IlL, September 3, 1.933, That a ma.-..;:imum of 85 hours 

flying in anyone month aDd between 900 and 1,000 hours for a year, represents 

the t,op limit of hours of flying to tl/hich a chief pilot or copilot should be snbjected~ 

and be it further 

Resolved, That copies of these resolutions, signed by the president, and secretary 

of the association, be transmitted to the United Sto.tes Secret.ary of COillilleree, 
'-.,j 

I 

6 mCREABE FLYL"iO HOURS OF AIR PILOTS 

to the president of the Air Line Pilots' Assocbtion, and that they be published in 

the press of the couutry. 

F. C. WARUSHUIS, PTe.~ident. 

D. S. BRACKMAN, ,Secretary. 

National Labor 

EXHIBIT II 

Board, ill the matter of the Air Line Pilots' Wage Dispute, 

Case No. 83, IVhy 10 1934 

The Air Line Pilots' A4..Bsociatioll and American Airways, Eastern Air Transport, Transcontinental and Western Air, United Air Lines and Western Air 

Express jointly submitted to the National Labor Board, in September 1933, a iyo.ge disput,e concerning the rate and method of payment for air pilots. The 

National Labor Board referred the matter to a fact-finding committee for study 

and recommendation and caused a detailed study, of the wage situation in this 

industry to be made. The Board's decision had been withheld for ,'3eyeralmonths 

because of the uucertain conditions in the industry resulting from the cancelation of the air mail contracts in February. In view of the recent changes in the 

industry the Board feels that a public service will be rendered by the issuance of a decision setting forth its views regarding a fair wage scale for air pilots. 

The traditional method of computing pilots' wages on the basis_ of mileage 

flown was abandoned by the industry during the period from 1931 to 1~33. 

The dispute was occasioned by the new rat.es which had been put into effect on October I, 1933, by aU, the companies involved. These rates are all an hOUl'ly 

basis and proYide for $4 an hour for day flying under 125 miles hourly speed, wit.h 

20-cent hourly increase to become effective at speed'3 of 126 miles, 141 miles, 156 

mile.'3, 176 miles) 201 miles, respectively. Two dollars an hour is added to eo.ch 

rate fOL' night flying. In addit,ion each pilot receives a base rat.e of $1,600 ~nnually, 

iucTG'B..sed by $200 for each year of service, up t·o a maximum of $3,000 a year. 

This base rate is paid regardless of whet.her the pilot engages in a.ny flying. 

The pilots in..sisted ,upun a return to the m.ileage basis of payment and proposed the following scale: 4 cents a. mile for day flying and 7 cents a mile for night 

-flying ovel' ol'dinaty tenl1in, with an LllCre3.Se to 5 cents aud 9 cents a do.y for 

day and ni'ght fiyillg, respect.ively, OYer hazardous terrain, plus a base rate of 

from $1,800 to %3,000 a year. The companies contended for the continuat.IOn 

of the October 1 rates. These rates provided for appro:xilllatlev the same 'compens:1.tion for all flights at the IOlv rates of speed 'which had been cnstomeary ,in 

the past, but resulted in materially reduced compensation for flights at the illereased speedt3 which tbe industry has been strivillg to int.roduce and n.tt3.in. 

The Oct.ober r3.tes are im!.deql1n.t.e for additional re:1SOus. The differential p~id for night fiyill~ as t1..gainst day flYllJg seems insufficient) the speecis .:1t whicll 

the increased hourly rates \-yould become effective seem impl'5.ctic:l.bI0, and tllt~ 

differential for the increased speeels does not. sufficiently "t.:t.ke into D.ccount the 

increased hazards and the probable increased cl1l'nings t() be derived from the 

speedier equipment. 

The industry is on the threshold of technologial improvement which will g-rcatJy 

accelerate the speed of airplane travel and 'which may result in some technolo;l;.'ie::W. 

unemployment. The increase of speed will either greatly increase the mileage 

covered by the pilots or materially reduce their lllonthly hours of emploY"lnent. 

If t.he pilots were to fly in the futme the same number of hours as in t.he past and were paid on the same monthly basis, their monthly earnings would be grea.tly increa...~d. Similarly) 'were the mileage basis to be cont.inued and the hours of 

actual flying reducedj there would be no change in monthly earnings notwlt.hstanding the sharp reduction in monthly hours. In either e\"ent, the pilot wonld 

receive the chief benefits accruing from the new equiplllent. The hourly basis of 

payment, on the other hand, does not adequately compensate the pilots for th~ 

increased Inileage with the added ha:w .. rds incident thereto, and reslllts in a sharp 

decrease of earnings in the event that new equipment reduces the employment 

opportunities of the pilots. It would seem advisable, therefore, to adopt a basis 

of pay under ~"'hich both the company and the employees would share in the 

benefits accruing from the new equipment and bear the burdens that. will -attend 

its introduction in the beginning. VariOlls bases of compensation were aceol'd- ,( 

ingly, studied that promised to attain this objective and a combination of both 

methods of payment was devised. The Board's report sUl'nlll3..rizing these stndi~S 

J 

) 

.' 
published in 

President. 

Se,cretary. 

;.ge Dispute, 

Air TransWestern Air 

lher 1933, a [Jilots. The ee for study ~tion in this 

eral months 

;he cancela-

'1uges in the , issuance of 

-ilots. 

of mileage 

31 to 1933. 

.to effect on .1 an hourly 

speed, with 

1 miles,. 156 

ded to each 

)02;l1nually, 

000 a year. 

gying. 

1t, and proLle for night 

s_ a day for 

,ase rate of 

ontilluatlOll 

same conl-

:tomeary in , at the inat.tain. 

dillere,ntial 

:ls st. ,\'hi ch 

le, alld the 

,(1COUllt the 

:l from the 

will grea tl y 

chnological 

,he mileage 

J.ployment. 

Ie past alid 

be greatly 

leo hours of 

;8 notwithJilot "Would 

dy basis of 

ats for the 

iil a sharp 

IIp]oymellt 

opt a basis 

lare ill the 

will attend :re accord- :m of both .ese studies 

INCREASE FLYING HOURS OF AIR PILOTS 7 

was submitt.ed t.o the parties for their criticL'3m ~nd suggestions. It thus appears 

that the method of payments recommended by the Board will impose no undue 

burdells upon the companies; that. it, can be admirustered without any practical 

difficulties and that it provides an adequate basis of compensation for the'pilots. 

As the issues have been fully discussed with the parties and the cOllsideratioJ;lS 

impelling tlfe Board in reaching this decision have been outlined in an elaborate 

Tf:port, it, is unnecessary to describe t-he issues here involved in any detail. In 

the attached chart" the various methods of pa:YUlent proposed by the parties -and 

the Board are tabulat.ed. 

Jt is the decision of the National Labor Board on all the issues submitted that---

1. Eigh~,y-five hOlli's of fiying shall constitute the monthly marimlUI,l. for air 

pilots. 

2. Experience has not crystallized sufficiently to put a maximum on the 

monthly mileage of air pilots. 

3. The rate of base pay shall be $1,600 a year with all increase of $200 for each 

year of service, maximlUll $3,000. 

4. Air-mail pilots shall be paid the base rate plus au hOUl'ly rate of $4; $4.20, 

$4.40, $4.60~ $4.80, and $5 for day flying and $6, $6.30, $6.60, $6.90, and $7.20, 

.and $7.50 for night flying at hom-ly speeds of under 125 miles, 125 miles, 140 

miles, 155 miles, 175 miles, and 200 miles or more, respectively. In addition at 

monthly mileages of under 10,000, 10_,000 to 11,999 miles, inclusive, and 12,000 

miles and more, respectively, the pilots shall be paid 2 cents, 17~ :cents, and 

1 cent a mile for all miles per hour flown at more than hourly speed of more than 100 miles. 

5. This awal;d shall remam in effect for a period of 1 year . 6. The differentials existing O.ll October I) 1933, for copilots and for flying over hazardous terrain shaTI be maintained. 

AIR LINE PILOTS' A:SSOCIA'l'ION, 

CMcago, Ill. 

ROBERT F .. WAGNER, Chairman. 

NATIONAL LABOR. BOh-RD, 

TVa.shington, D. C., ]l.rfay 10, 1934. 

GENTLElI{EN: We. al'e enclosing the decision of the National Labor Board in 

the case of the Air Line Pilots' Wa.ge D£spute. 

In view of the change in conditions in the industry since this matter was jointly submitted to the Board by the Air Line Pilots' Association, and ·the five 

air. lines, the Board is of the opinion that the rates herein Bet forth should apply 

when, as, and if, air-~ail contracts- are awarded under S. 3170. However, the 

provisions contained in thls decision apply to all pilots flying for your company. 

whether or not engaged in the carr:l-ing of mail. 

Very truly yours, NATIONAL L4J3oR BOARD, 

ROBERT F. WAGNER, Chairman. 
y \ ... -~. 

Mileage of 8,000 mlles at hourly speeus 0[- MIleage of 10,000 miles at - bourly speccls 0[-

MDoagll of 12,000 miles at Mileage of 14,000 miles at hourly sp(:cds 0[- Hil~l\ge of l(i,ODO milo!; at 11o<;l1'ly speeds 

hourly spotldS 01'- ofHill 125 150 175 200 100 125 160 . 175 200 100 125 150 17il 200 100 125 ~I; 160 175 2<)0 100 125 HiD 175 ' 2-00 

----- ~-- --------------------------------- ---------------- I l _______ $(j'\{l $516. 00 $(116. 00 $B16. 00 $!U(l $720 $720. 00 $720.00 $720.00 $720 $824 $824. 00 $SU. 00 $824-. 00 "8U IO,2S *"S.OO ."03.00 $928. ':~r28 $1,0:12 $1,033, 00 $1,032. DO $1,032. 00 $1,0:12 JlI .. ____ 584 507.00 477.33 4'11).86 42-f 680 58-1.00 I)·W.67 508.57 480 'l7G IlIlO.OO OW.DO liiG.3\) 535 872 137. 00 635,00 6a2. flO 5U2 \IG8 lilt 00 753.28 lma.71 548 llI~_"~ __ 58·1 liM.56 634.[)3 532.0-! 520 680 633.20 ()OZ.QO 5\J3.40 575 77ij 707.!i~ GG2.40 tW:L35 G21J 872 7U2. ,18 7~(J. oW 7:2[).80 ()f)O !JOB 877.12 816.53 8(H. l\) 700 

._-- - - -- .... _- -- ------ -_._----

I Mont.hly earnings figured un basis of what ll!1ots are asking--4. clmts per mile fOl' dajc liyi.llg, 7 mmts pur mile (1)1' nigh!; flying; plus munthly base of $200, ~ Mont.hly e,!-rnings .figured on hourly basis of what ctltnpanius are paylllg since Ool. 1, $4, $-1.20, $-IAO, ·~-!.r,D, *4..8U, and $6 pel' hour fot' day Hying; $0, $G.2(), $6.10, ~;().60, $6.80, amI $7 ll,n: hour fo1' mght fiylng a~ hourly speeds of undCl' 126 ruilGs, 120-HO, 141-155, 155-175, 170-:200, and over ZOO miles, pIns monthly base of $200. ~ Monthly earnings figUl'ed OJ1 hourly hasis of ,~4, ,~4.30, .,\)4.40, ·Heo, .t"l.80, and $6 lor day flyhW; uud :jiG, .'(;6.80, [,W.GO, .~(j.OO, $7.20, and $7.50 fornig'ht flying a.t sp8ec1s of un del' 126 miles, 126, 1-10, 155, 175, ancl 200 and OV(1)' miles plus 2 Gents, IH cents, and 1 cent [or (1auiJ mill> t.rrwcled at lllortl tho,n lUO-mile ilourly spcCld where totallllonth'~ mileage is under 10,000 

miles, 10,000-11,099 milt's, inclusive, und 12,000 or more mIles, respecti 1'81y, pltlS munthly bllse of $200.' . 

At milt}Uge of8,000 ____________ ~ __ ~ _____________________________ • __ 

10,IJOU ___________________________________ .. __________ _ 

12,000. _____________________________________ _ 

Atspeed 

ofMiles 100 

125 

150 

175 

200 

100 

125 

150 

175 

~~g I . 125 

150 

175 

200 

POIcent 

saving ill . time 

NOJlG 

20 

:13% 

42H 

50 None 20 

33"73 

d.23-f 

50 None 20 

33H 

4271 

50 

Ptncont 

. Incl"tlfts(l 

in pilot's pay fig- ured Oll III as against II 

None 8~!t 

lOH 

16Ha 

18H 

NOlll) 

8H 

03-[j 

14% 

IGH. 

Nono IiHo 

7 

ll% 

13}$ 

At mllc!\j;o of14,000 _____________________________ • ________________ _ 

1ti,O(j(J ____________ .: ______________ ~,-------------_-----

II . _________________ -'. 

Ato~~ed 

Mi'es 100 

125 

150 

175 2no 

IOn 

125 

150 

175 

2-OU. 

Percent 

~avillg in 

timo 

None 20 

33H 

421' 

50 

None ,(> 

33~jJ 

-!3~H 

50 

Percent 

Increase 

in pl1ot's 

pay fig- ured onln as against II 

NOlli) 

0~1l 

7)1 

12}f2 

14H4 

NOlle. 

7Hi 

8 

13H 

14% 

00 

tzl 

~ ". 

en 

'>1" 

t' 

~ 

" Pi 

g 

en 

o 

'>1 

i':; 

'" 

~ o 

~ 

.--~--. ,--~ 
INCREASE FLYING HOURS OF AIR PILOTS 9 

Sena.tor BURTON. I would Jilie to ask a question for my owninformalion, if you please. Under the present law is there any way in which 

the S5-hour limitation per month can be exceeded? 

1.I1r. BEHNCKE. No; there is not" Senator. 

Senator BURTON. That is absolutely rigid? 

Mr. BEHNCKE. Yes, sir. 

Senator BURTON. Neither the .Board nor any other agency can 

exceed that amount? 

Mr. BEHNCKE. No, SiT. 

Senator BURTON. It is' a physical regulation, more than anything 

else, and it is a limitation on the number of hours a man can actually 

fly? . 

. M1'. BEHNCK]]' Yes, sir. 

Senator BURTON. And does not provide for extra pay for the number 

of hours of flying? Mr., BEHNCKE. No, SIT; it is the absolute maximum, Senatof. 

Senator BURTON. I understand that the amendment will change 

tlmt to 100 hours of flying per month? 

lY1:r. BEHNCKE. Yes, sir. 

Senator BURTON. And then it pTOvides [reading]: 

That, to the exte~t the Chril Aeronautics Board finds, after consultation with 

the Secretary of War and the Secretary of the Navy or their designated representatives, that the maximum hereinabove prescribed is not required by -reasons of the military needs of the armed forces of the United States) the Board may fix, 

from time to time) by regulation applicable to one or lllore ail' carriers, the ffi3tximum flying hours at less than one hundred hours. 

For instance, it might fix the hours at 90? 

JVIr. BEHNCKE. Yes, sir. 

Senator OLARK of Missouri. It can fix the hours at 90 011 Olle line 

and 100 all another? 

11r. BEHNCKE. Yes, SIT. . 

Senator BURTON. But 100 is the absolute statutory maximunl; 

.mel the BoaI'd can fix it at less .than 100? 

Mr. BEHNCKE. Yes, sir. It is baseel on military needs, and the 

Boarel must according to this law consider the military neeels in relation to the scarcity of pilots, and then :6.." the monthly hours; and, in 

addition, there is a provision that permits pilots, even though they 

have reached 100 hours, to complete a particular flight if it is canying 

"must" military cargo; in other words, cargo that must go .thro~gh . . Senator BURTON. Yes. I wanted to have that dearly m mmd. 

It sa.ys [reading]: 

Pwvided fu.rthcr, That the Board, in accordance with such procedUl'e as it may 

prescribe, may authorize the maximum flying hours hereinabove provided for to 

be exceeded to the extent necessary to complete. a particular flight for military, 

purposes. 

Mr. BEHNCKE. That is correct. 

Senator BURTON. So that the statutory limit may be increased to 

105 hours or whatever time may be necessary? 

Mr. BEHNCKE. Yes', sir; for a particular flight. Senator OLARK of Missouri . .An official authorization for each particular flight is required? . Mr. BEHNCKE. Yes, sir. 

Senator OLARK of Missouri. In other words, there must be a militaTY necessity in mdcr to o,uthorize a pilot to exceed that limitation? 
i 

',i 

>. 

'1 

I 

'I. 

,. 

I , 

-...." 

10 INCREASE FLYING HOURS OF AIR PILOTS 

Mr. BEHNeKE. Yes; that is basically the idea. However, I presume that the way it will be done will be that the Oivil Aeronautics 

Board will make regulations cO~Tering the manner in which it will,be 

handled. . 

Senator OLARK of Missolll'i. They will lay down the regulations 

but in particular cases it 'will be necessary to have an nuthorizatioll. J 

lV1r.BEHNCKE. Yes) sir. 

Senator OLARK of Missouri. Are. there =y further questions, Senator? 

Senator BURTON. No. 

(The "itnes; ",ithdrew from the committee table.) 

Senator CLARK of 1vIissouri. Does anyone else desn:e to be hem'cl on 

H. R. 6799? Do you c"re to be heard Mr. Hushing? 

MT. HUSHING. Just a word. 

STATEMENT OF W. C. HUSHING, NATIONAL LEGISLATIVE CHAIR· 

MAN, AMERICAN FEDERATION OF LABOR 

1vlr. HUSHING. We have gone along with the pilots. They :1Te ont~ 

of the finest gTOUpS affiliated with the Amerimn Fedemtioll of Labor. 

Perh"ps I should s"y, the finest, but I might get myself into trouble. 

I think their attitude in this regard is a very 10gical one, and we are 

proud of them; ,md I hope that you will report the bill out. 

(The witness withdrew from the c.omrnittee table.,) 

Senator CLARK of lvlissouri. Does a.nyone else desin.' to be heard on 

this bill? [No response.] If not, without objection it will be reported. . 

(Whereupon, at 11: 10 t) •. ill. I the hearing was eoncluded, and the 

subcommittee pToceecled to the copsidel'ation of other matt!.:'rs.) 

x 

j 

j 
f 

! 

t· 

Union Calendar No. 687 

77TRCONGRESS 2D SESSION H R - 6799 

¢;I ,;,' 

[Report No. 1944] 

IN THE HOUSE OF REPRESENTATIVES 

MAUCH 16,1942 

]\11'. LEA introduced the follo"ing bill; which 'was l'efened to the Oommittee on Interstate and Foreign COlllmer:ce 

IV[.'utCH 24, 1942 

R.eported with amendments, committeel to the Oommitte'B of the WlIole Rouse 

on the sta.te of the Union, and ordered to be printed 

[Omit tbe purt struck through and insert the Pf~lt printed in italic] 

A BILL 

To mCTease the monthly maximum number of flying homs of air 

pilots, as limited by the Oiyil Aeronautics Act of 1938, because of the military needs arising out of the present war, 

1 Be it enacted by the Senate and HO'use of Representa2 tives of the United States of America in Congress assembled, 

3 That the niaximum flyiIlg homs in interstate air transporta4 tion pre.scribed by pamgral,h (1) of section 401 fl+ (l) of 

5 the Oivil Aeronautics Act of 1938, as amended, sha11 be one 

6 hundred homs of. flying per mouth: Provided, That, to the 

7 extent the Oivil Aeronautics Board fllds, after consultation 

8 with the Secretary of IV ar and the Secretary of the Navy or 

9 their designated representatives, that the maximllTIl herein-
, 

. j 

" . 

, 

, 

: . 

2 

1 above prescribed is not required by reasons of the militcny 

2 needs of the armed forces of the IT nited States, the Board 

3 may fix, from time to time, by regulation applicable to one 

4 or more air carriers, the maximum flying homB at less than 

5 one hlU1clred hours: P1'Ociderl further, That the Boarel, in 

6 accordance with such procedure as it 111ay prescribe, may 

7 authorize the maximum flying hours hereinabove provided 

8 for to be exceec1ed to the extent necesscny to complete a par9 tieular flight for military purposes. 

10 SEO. 2. Every air carrier shall comply with the provi11 31:0118 of this Act and tIll' regulations fixed by the Board 

12 herclU1der. The powers of the Oivil Aeronautics Board with 

13 respect to the enlorcement of the Oivil Aeronautics .t"-ct shall 

14 be available to it in the enforcement of this Act, and the 

15 penalties prescribecl in 8l'ction 902 (a) of that Act shelll 

16 be applicable to viohtion8 of this Act or any regula,ti6n 

17 . issuecl thereunder. 

18. SEC. :3. This Act shall remain in force clmin o' the con- o . 

19 tinntlnee of tho present ,,'ar and for six mouths after the 

20 terminatioll of tho war, or until snell earlier time 118 the 

21 Congress hy concurrent resolution Qr the President may 

22 designate. 
IJI . _:Z'," '_. 

- , ... .,;..'~,.....-..~.--.-'.--......... ... ~ ..... ,---.. -~~ . ....:.. .. "_ . .-i._ -."---~".~ .. ~ 

71TII CCNGRESS 

2n SESSION 

Union Calendar No. 687 

H. R. 6799 

[Report No. 1944] 

A BILL 

To increase the Inonthly maXilnl1l11 lllUllber of 

flying hours ot ail' pilots, as limited by the· 

Civil Aeronautics Act of 1938,. because of 

the military needs arising out of the present 

war. 

By Mr. LEA 

J\iLl.nOR 16,1942 

Reiel'l'ed to the Oo'mmittee on Interstate and Foreign 

Commerce 

ThLmcH 24, 1942 

Reported with amendments, cOIDmittec1 to the Committee of the WllOle House on the state of the 

Unioll, and ordered to be :printed 

. '''- ~ ___ ''':'',.c- ,-" c .. , ,,_,,;,_.~, 

i . , 

CODE 

OF FEDERAL 

REGULATIONS 

1949 Edition 

CONTAINING A coDIFICATION OF DOCUMENTS OF GENERAL 

APPLICABILITY AND FUTURE EFFECT AS OF DECEMBER 31, 1948 

With Ancillaries and Index 

. published by the Division of the Federal Register, the National Archives 

as a Special Edition of the "Federal Register, Dated January 1 t 1949 

Pursuant to Section 11 of the Federal Register Act as Amended 

Parts 1 to 399 

:tl874 
Chapfer I~Civir Aeronautics Board § 41.55 

qualified in accordance with the appro- pri~te prdvisions of § 41.50., 

§ 4~.52 Maintenance oj pilot technique. If within any gO-day' period a first or second pilot ha~_not made at 

least three take-otIs and landings in' aircraft of a particular, make and model, 

such person shall, not thereafter serve as a first ·or second pilot in aircraft of that 

make and model in scheduled 'air trans:" 

portation without having made at least 

three take-offs and landings in such aircraft with not less than one-half the 

maximum useful load. If he is, to serve in air transportation at night at least one of the three take-offs and landings specified above must have been made 

at night. 

§ 41.53 Periodic jtight 'checks and 

instruction. Each air carrier must provide a sufficient number of check pilots 

to insure that each first pilot employed 

continues to meet the minimum. requirements both with regard to route com- petency and technique. Each of these 

checks must be accomplished twice each 

year at intervals of not less than four 

months. Periodic instruction must be 

given all pilots. In the case of first 

pilots, instruction must include the obtaining of optimum performance under 

simulated maximum authorized weight 

conditions with one engine inoperative 

and instrument approach procedures and 

landings under the same conditions in 

the make and model aircraft in which 

such pilots serve in scheduled air transportation. In the case of all pilots other 

than first pilots, instruction must include 

familiarization with the operations manual, with the types of equipment used, 

ro.... and with the duties of a second pilot. 

j § 41.54 Flight time limitations jar 

aircrajt having 'a crew of one or two 

pilots. (a) A pilot may be scheduled 

to tty 8 hours or less during any 24 

consecutive hours without a rest period 

during· such 8 hours. If a pilot is 

scheduled to fly in excess of 8 hours 

during any 24' consecuti,ve hours, he shall 

be given an intervening rest period at or 

before the termination of 8 scheduled 

hours of, flight duty. Such rest period 

must equal at least twice the number 

of hours flown since the last preceding 

rest period and in no case will such rest 

period be less· than 8 hours. During 

such rest 'period the pilot must be relieved of all duty with the air carrier. 

OJ) When a pilot· has flown in excess of 8 hours' during any 24 consecutive 

hours he must receive at least 18 hours 

of rest before being assigned any duty · with the air carrier. . 

(c) A .pilot shall not fly in excess of 

32 hours during any 7 consecutive days. 

Relief from all duty for not less than 

24 consecutive hours mUst be provided 

for and given to a pilot at least once during any 7 consecutive da,ys. 

Cd) A pilot shall not fly as a member 

of the crew more than 100 hours during 

anyone month: Provicled, That the Administrator is authorized,. during the 

present war and Until 6 months after · the termination thereof, to permit the 

maximum of 100 hours to be exceeded 

to the 'extent necessary to complete a particular flight for military purposes. 

(e) A pilot shall not fly as a member 

of the cr~w more than 1,000 hours in 

any 12-month period: Provided, That 

this limitation will not be effective durIng the present war and until 6 months 

after the termination thereof, and that 

during this period the maximum flYing 

hours permitted in any 12-month period 

will be controlled by the provisions of 

paragraph (d) qf this section. 

§ 41.55 Flight time lirnitations jar 

aircraft having two pilots and one additionq.l flight crew member. (a) A pilot . may not be scheduled to fly a total of 

mOre than 12 hours during any 24 con- 'secutive hours. 

(b) When a pilot has flown 20 hoUrs or more during any 48 consecutive hours, or 24 hours or more·during any 72"consecutive hours, he must receive at least 

18 hours of rest before being assigned 

to any duty, with the air carrier. In any · case each pilot shall be relieved from 

all duty for not less than 24 consecutive 

hours during any 7 consecutive days. 

(c) A pilot shall not fly as a member of 

the :flight crew more than 120 hours in 

any 30 consecutive days or. 300 hdurs iri 

any 90· consecutive days: Provided, That 

the Administrator is authorized, during 

the present war and until 6 months after 

the termination thereof, to permit the 

above maximums of 120 or 300 hours to 

be exceeded to the extent necessary to 

complete a particular fligb,t for military 

purposes. ~ 

(d) A pilot shall not fly as a member 

of the flight crew more than 1,000 hours . in any 12-month period: Pro1{ided, That 

this limitation will not be effective durPq.ge 379 
§ 61.113 Title ·14-Civil Aviation 

ing program required by §§ 61.131 to (b) When a pilot has flown in sched-

,61.135, his ability to pilot and navigate ,uled air transportation service in excess by instruments an aircraft of a make .! of 8' hours during any 24 consecutive 

and model to be flown by him in the hours, he shall receive 24 hours of rest 

air carrier· service. Additional checks before being assigned any duty with themay be required by the Administrator air. carrier. Time spent in deadhead 

at his discretion. transportation to- duty assignment shall 

[Arndt. 61-3.5, 7 F:. R. 3357, as amended by not be consider:ed part of such rest period. 

4rridt. 61-:37, 7 F. R. 6632. Arodt. ar--5, _ 10 (c) A pUot shall not fly in eXcess of 

F. R. 10165] 30 hours during any 7, consecutive days. 

§ 61.113 Route competency. No first ReUef from a~l duty for not less than 24 

pilot shall be deemed competent OVer any >consecutive hours shall be provided for 

route or part thereof unless he has met and given to such pilot at least once durthe -appropriate ,minimum requirements ing any 7 consecutive days~ 

of Part 40 of this subchapter and has (d) A pilot shall not fly in scheduled 

maintained his route competency as pro- au'transportation service as a member 

vided in this part. of the crew mOTe than 100 hours in any 

[Amdt."61-6, 12" F.,R. 3171] one month: Provided-, That the Admin-

§ 61.114 Maintenance at pilot r01Lte - istrator is authorized, 'during the present 

qualification. Aft e r 12 consecutive war and until 6 months after the termimonths' absence from flight duty over a nation thereof, to permit the -maximum 

route or part thereof a first pilot _ will of 100 hours to be 'exceeded to the extent no longer be deemed competent for the necessary to complete a particular flight 

carriage of persons in air transporta- for military purposes. 

tion service over such routes or part (e) A pilot shall not fly in scheduled 

thereof unless he has requalified in ac- air tr~nsportation service as a member 

cordance with the provisions of § 40.87 of the crew,more than 1,000 hours in any 

(b) of this SUbchapter. one calendar year-: Provided, That this 

[Arndt. 61-8, 11 F. R. 5646, 577~1 limitation shall not be effective dUring 

the present war and ,until 6 months after 

§-61.115 Logging flight time. A first the termination thereof, and that during 

pilot shall log the total actual-flight time this period the maximum flying hours 

elapsing during his command of the air- permitted in anY .one calendar year shall 

craft. be controlled ljy the provisions of para-

§ 61.116 'Logging instrument fiight 

time. Instrument flight time may be 

logged as such only when the aircraft 

is flown solely by reference to instruments either under actual or properly 

sirriulated flight conditions. (Over-thetop flying shall not be logged as instru-

'ment flight time.) 

§ 61.117 Flight_ time limitations. The 

following rules prescribe the fiight time 

liniitationS for all pilots in scheduled air 

transportation: 

(a) A-pilot may be scheduled to :fly 8 

hburs or less during any 24 consecutive 

hours, without a rest period during such 

8 hours. If such pilot be scheduled to fly . in excess of 8 hours during any 24 con- secutive hours, he shan be given an intervening _rest period at or before theterinination of 8 schedu~ed hours of 

flight duty. Such rest period shall equal 

at least twice the nmnber of hours flown 

since the last preceding rest period and 

in no case shall such rest period he less 

than 8 hours. During such rest period, . the pilot shall be relieved of all duty 

w1th the air carrier. 

Page 436 

graph (d) of this section. 

(f) The foregOing flight time limitations shall not be applicable when a pilot 

is qualifying on a regular route, or alternate route, over which such pilot is 

not qualified. 

(g) A pilot shall not do other commer- cial flying while employed by an air carT!er when such flying, in addition to tha,t 

in scheduled air transportation service, 

will exceed any flight. time limitations 

specified in this section. 

[Amdt. 61-39, 7. F. R. 7478] 

SECOND PILOT 

§ 61.121 When required. A second 

pilot will be required in the following cases when passengers are carried: 

(a) When the aircraft used is of a de~ 

sign incorporating multiengine features, 

combjned with retractable landing gear or wing flaps or of a single-engine design 

incorporating both' retractable landing 

gear and wing flaps, or 

(b) When the first pilot is required to 

fly 5 or more hours during any 24 cou-
1~ ()5L ~ LjD)()2l() 

(37) "public aircratt"-

(A) means an aircraft-

(i) used only for the United States Government· or 

(ii) owned and operated (except for commercial 

purposes), or exclusively leased for at least 90 continuous days, by a government (except the United States 

Government), including a State, the District of Columbia, or a territory or possession of the United States, 

or political subdivision of that government; but 

(B) does not include a government-owned aircraftor 

(i) transporting property for commercial purposes; 

(ti) transporting passengers other than-

(1) transporting (fer other than commercial 

purposes) crewmembers or other persons aboard 

the aircraft whos\, presence is required to perform, 

or is associated with the performance ot; a governmental functiol! such as firefighting, search and 

rescue, law enforcement, aeronautical research,· or 

biological or geological resource management; or 

(II) transporting (for other than commercial 

purposes) persons aboard the aircraft if the aircraft is operated by the Armed Forces or an intelligence agency of the United States. 

An aircraft described in the preceding sentence shall, notwithstanding any limitation relating to use of the aircraft . for commercial purposes, be considered to be a public aircraft for the purposes of this part without regard to whether the aircraft is operated by a unit of government on behalf of another unit of government, pursuant to a cost reimbursement agreement between such units of government, if the unit of government on whose behalf the operation is conducted certifies to the Administrator of the 

Federal Aviation Administration that the operation was , necessary to respond to a significant and imminent threat 

to life or property (including natural resources) and that 

no service by a private operator was reasonably available 

to meet the threat.· . 
4Cf USC 

- (37) "punlic aircraft" means any of the following: 

(A) Except with respect to an aircraft described in subparagraph (E), an aircraft used only for the United States 

Government, except as provided in section 40125(b)_ 

(B) An aircraft owned by the Government and operated by any person for purposes related to crew training, 

eqnipment development, or demonstration, except as provided in section 40125(b)_ 

(C) An aircraft owned and operated by the government 

of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of 

one of these governments, except as provided in section 

40125(b). 

(D) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of 

Columbia, or a territory or possession of the United States 

or a political subdivision of one of these governments, except as provided in section 40125(b). 

(E) An aircraft owned or operated by the armed forces 

or chartered to provide transportation to the armed forces 

u!':der the conditions specified by section 40125(c). 
§ 40125. Qualifications for public aircraft status 

(a) DEFINITIONS.-In tbis section, the following definitions 

apply: . '. 

(1) COMMERCIAL PURPOSEs.c:-;"The term "commercial purposes" means the (1ransportatio~ . of persons or property for 

compensation or hlie, but does not include the operation of an air~·oy the armed forces for reimbursement when that reimbursement is required by any Federal statute, regulation, or 

directive, in effect on November 1, 1999, or by one government 

on behalf of another government under a cost reimbursement 

agreement if the government on whose behalf the operation is 

conducted certifies to the Administrator of the Federal Aviation Administration that the operation is necessary to respond 

to a significant and imminent threat to life or property (including natural resources) and that no service by a private operator is reasonably available to meet the threat. 

(2) GOVERNMENTAL FUNCTION.-The term "governmental 

function" means an activity undertaken by a government, such 

as national defense, intelligence missions, firefighting, search 

and rescue, law enforcement (including transport of prisoners, . detainees, and illegal aliens), aeronautical research, or biologicalor geological resource management. 

(3) QUALIFIED NON-CREWMEMBER.-The term "qualified 

non-crewmember" means an individual, other than a member 

of the crew, aboard an aircraft-- . (A) operated by the· armed forces or an intelligence 

agency of the United States Government; or 

(B) whose presence is required to perform, or is associated with the performance of, a governmental function. 

(4) ARMED FORcES.-The term "armed forces" has the 

meaning given such term by section 101 of title 10. 

(b) AIRCRAFT OWNED BY GOVERNMENTS.-An aircraft described 

in subparagraph (A), (B), (C), or (D) of section 40102(a)(37) does not 

qualifY as a public aircraft under such section when the aircraft is 

used for commercial purposes or to carry an individual other than 

a crewmember or a qualified non-,crewmember. 

(c) AIRCRAFT OWNED OR OPERATED BY THE ARMED FORCES.-

(1) IN GENERAL.-Subject to paragraph (2), an aircraft described in section 40102(a)(37)(E) qualifies as a public aircraft 

if- . 

(A) the aircraft is operated in accordance with title 10; 

(B) the aircraft is operated in the performance of a 

governmental function under title 14, 31, 32, or 50 and the 

aircraft is not used for commercial purposes; or 

(C) the aircraft is chartered to provide transportation 

to the armed forces and the Secretary of Defense (or the 

Secretary of the department in which the Coast Guard is 

operating) designates the operation of the aircraft as being 

required in the national interest. c 

(2) LIMITATION.-An aircraft that meets the criteria set 

forth in paragraph (1) and that is owned or operated by the 

National Guard of a State, the District of Columbia, or any territory or possession of the United States, qualifies as a public 

aircraft only to the extent that it is operated under the direct 

control of the Department of Defense. 
Westikw. 

49 U.S.C.A. § 40102 

United States Code Annotated Currentness 

Title 49. Transportation (Refs & Annos) 

Subtitle VIT. Aviation Programs 

Effective: January 28, 2008 

Part A. Air Commerce and Safety (Refs & Annos) 

'Ill Subpart 1. General 

'Ill Cbapter 401. General Provisions (Refs & Annos) 

... § 40102. Definitions . 

(a) Geueral defiuitions.--In this part--

**"* 

(41) "public aircraft" means any of the following: 

Page 2 of25 

Page 1 

(A) Except with respect to an aircraft described in subparagraph (E), an aircraft used only for the United States Government, except as provided.in section 40125(b): . 

(B) An aircraft owued by the Government and operated by any person for purposes related to crew training, equip~ 

ment development, or demonstration, except as provided in section 40 12S(b) .. 

(C) An aircraft owned and operated by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in section 40125(b). 

(D) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of 

·Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in section 40125(b). 

(E) An aircraft owned or operated by the armed forces or chartered to provide transportation or oilier commercial air 

service to the armed forces under the conditions specified by section 40125(c). In the preceding sentence, the term 

"other commercial air service" means an aircraft operation that (i) is within the United States territorial airspace; (ii) 

the Administrator of the Federal Aviation Administration determines is. available for compensation or hire to the 

public, and (iii) must comply with all appliCable civil aircraft rules under title 14, Code of Federal Regulations. 
Westlavv; 

49 U.S.C.A. § 40125 

c 

United States Code Annotated CUlTentness 

Title 49. Transportation (Refs & Annos) 

Subtitle VIT. Aviation Programs 

Effective: January 28, 2008 

Part A. Air Commerce and Safety (Refs & Annos) 

"Ill Subpart I. General 

"Ill Cbapter 401. General Provisions (Refs & Annos) 

... § 40125. Qualifications for public aircraft status 

(a) Definitions.--In this section, the following definitions apply: 

Page 2 of4 

Page 1 

(1) Conunercial purposes.--Tbe term "commercial purposes" means the transportation of persons or property 

for compensation or bire, but does not include the operation of an aircraft by the armed forces for reimbursement wben that reimbursement is required by any Federal statute, regulation, or directive, in effect on November 1, 1999, or by one govermnent on bebalf of anotber govermnent under a cost reimbursement agreement if 

the govermnent on whose bebalf the operation is conducted certifies to the Administrator of the Federal Aviation Administration that tbe operation is necessary to respond to a significant and imminent threat to life or 

property (including natural resources) and that no service by a private operator is reasonably available to meet 

the threat. ' 

(2) Governmental function.--Tbe term "govermnental function" means an activity undertaken by a government, sucb as national defense, intelligence missions, firefigbting, searcb and rescue, law enforcement 

(including transport of prisoners, detainees, and illegal aliens), aeronautical research, or biological or geological resource management. 

(3) Qualified non-crewmember.--The term "qualified non-crewmember" m~ans an individual, other tban a 

member of the crew, aboard an aircraft--

(A) operated by the armed forces or an intelligence agency of the United States Government; or 

(B) wbose presence is required to perform, or is associated with the performance of, a govermnental func- tion. 

(4) Armed forces.--Tbe term "armed forces" has tbe meaning given sucb term b)\ section 10 1 of title 10. 

© 2011 Tbomson Reuters. No Claim to Orig. US Gov. Works. 

httn://web2.westlaw.com/print/printstream.aspx?rs=WL W11.01&destination=atp&prft=HT... 3/7/2011 
Page 3 of 4 

49 U.S.C.A. § 40125 Page 2 

(b) Aircraft owned by Governments.--An aircraft described in subparagraph (A), (B), (C), or (D) of section 

40102(a)(41) does not qualify as a pnblic aircraft under such section when the aircraft is used for commercial 

purposes or to carry an individual other than a crewmember or a qualified non-crewmember. 

( c) Aircraft owned or operated by tbe armed forces.--

(1) In general.--Subject to paragraph (2), an aircraft described in section 40102(a)(41)(E) qualifies as a public 

aircraft if--

(A) the aircraft is operated in accordance with title 10; 

(B) the aircraft is operated in the performance of a governmental fnnction nnder title 14, 31, 32, or 50 and 

the aircraft is not used for commercial purposes; or 

(C) the aircraft is chartered to provide transportation or other commercial air service to the armed forces and 

the Secretary of Defense (or the Secretary of the department in which the Coast Guard is operating) designates the operation of the aircraft as being required in the national interest. 

(2) Limitation.--An aircraft that meets the criteria set forth in paragraph (I) and that is owned or operated by 

the National Guard of a State, the District of Columbia, or any territory or possession of the United States, 

qualifies as a public aircraft only to the extent that it is operated under the direct control of the Department of 

Defense. 

CREDIT(S) 

(Added PUb.L. 106-181, Title vn, § 702(b)(I), Apr. 5, 2000, 114 Stat. 155, and amended Pub.L. 110-181, Title 

X, § 1078(b), (c), Jan. 28, 2008,122 Stat 334.) , 

mSTORICAL AND STATUTORY NOTES 

Revision Notes and Legislative Reports 

2000 Acts. House Conference Report No. 106-513 and Statement by President, see 2000 U.S. Code Congo and 

Adm. News, p. 80. 

2008 Acts. Statement by President, see 2008 U.S. Code Congo and Adm. News, p. S3. 

Amendments 

2008 Amendments. Subsec. (b). Pub.L. 110-181, § 1078(c)(1), struck out "40102(a)(37)" and inserted 

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 

1-.++n·1 Imp},') ",,>dl~w c.nminrint/nrintstream.aspx?rs=WL W11.01&destination=atp&prft=HT... 3/7/2011 
Page 40f4 

49 U.S.C.A. § 40125 Page 3 

"40102(a)(41)". 

Subsec. (c)(l). Pub.L. 110-181, § 1078(c)(2), struck out "40102(a)(37)(E)" aud inserted "40102(a)(41)(E)". 

Subsec. (c)(l)(C). Pub.L. 110-181, § 1078(b), inserted "or other commercial air service" after "trausportation". 

Effective aud Applicability Provisions 

2000 Acts. Enactment by Pub.L. 106-181 applicable only to fiscal years beginning after September 30, 1999, see 

section 3 of Pub.L. 106-181, set out as a note under section 106 of this title. 

Transfer of Functions 

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities aud 

functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, aud for 

treatment of related references, see 6 U.S.CA §§ 468(b), 551(d), 552(d) aud 557, aud the Department of Homeland Security Reorgauization PIau of November 25,2002, as modified, set out as a note under 6 U.S.C.A. § 542. 

LIBRARY REFERENCES 

American Digest System 

Aviation <€? 72. 

Key Number System Topic No. 48B. 

49 U.S.C.A. § 40125, 49 USCA § 40125 

Current through P.L. 111-382 (excluding P.L. 111-296, 111-309, 111-314, 111-320, 111-350, 111-358, and 

111-377) approved 1-4-11 

Westlaw. (C) 2011 Thomson Reuters. No Claim to Orig. U.S. Gov!. Works. 

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