In a July 22 Letter of Interpretation this year, the FAA Chief Legal
Counsel office responded to a query regarding providing instruction to military aviators in an aircraft that holds an experimental airworthiness certificate. The students, the letter said, represent passengers, and whereas compensation is made for the use of the aircraft and training, such operation is illegal. Read here:
http://www.faa.gov/about/office_org/...rpretation.pdf
As stated previously, the immediate question is what's done with this aircraft and the means of compensation; the specific nature of the operation needs to be considered to determine whether the flight or flights constitute a violation of the regulation. The Administrator has held that this is determined on a case-by-case basis. Specifics matter.
A commercial pilot may be paid to operate an experimental aircraft. A professional test pilot, for example, may be hired to work on envelope expansion during the development or ongoing testing of experimental aircraft or modifications. It's what he does, after all, and it's not illegal to get compensated for doing that job.
The question of whether passengers or cargo on board that aircraft are relevant as compensation are very case-dependent. Clearly if Company A operates it's experimental Ekenspekerdubbeldeker III from B to C, and carries a package from Company D for money or in trade for a ham sandwich, then carriage of the package is done for compensation or hire. Nothing ambiguous about that.
Alter the scenario slightly and Company D asks Company A to carry the package, but company A doesn't take money for the flight. Company A simply conducted the flight from B to C without taking a dime or a sandwich. Company A wouldn't have made the flight at all, save for the need to move that package. It's no longer clear cut. The FAA has held that simply logging time is compensation. Good will, increased trade, etc, can be forms of compensation.
The original poster postulated the case of carriage of company material shouldn't represent a hire or compensation scenario. More information is required, however, to make that determination.
FAA Chief and Regional legal counsel has addressed situations in which the pilot of an experimental aircraft was filmed, and identified that as a flight for compensation or hire. Frequently included in interpretations are references to the airworthiness certificate itself, which also includes limitations on operation of the aircraft; violation of those limitations is attached to regulatory prohibitions under Part 91, 21, and also under 49 CFR.
The important element to the question of the compensation or hire in operation is the specific purpose and mode of operation. A company may generally operate its own aircraft with its own personnel, using commercial, compensated pilots, without running afoul of compensation issues. It's when the company attempts to conduct revenue operations with the aircraft, fly external personnel with compensation, etc, that the matter becomes problematic.
What if the company carries only it's own personnel and equipment, but conducts the aircraft operation for hire? That question was posed to the Chief Legal Counsel by The Aviation Law Firm, and the resulting letter, dated in February of 2013, stated that several factors apply. The flight would need to be conducted in accordance with the purpose for which the airworthiness certificate was originally issued; this is specified on the experimental airworthiness certificate, and it's important to note that 91.319(a)(1) specifically prohibits conducting operations for a purpose other than that for which the airworthiness certificate was issued. Again, a violation of issues attached to the airworthiness certificate carry several additional violations, as more than one regulation is involved.
The Law Firm letter also notes that flights which begin and end at different airports take an aerial work flight from uncompensated, to a flight for hire or compensation.
http://www.faa.gov/about/office_org/...rpretation.pdf
A February 8 letter on the same subject states:
"
14 CFR §1.1 defines "commercial operator" as a person who, for compensation or hire, engages in the carriage by aircraft in air commerce of persons or property. The definition further states that "Where it is doubtful that an operation is for "compensation or hire," the test applied is whether the carriage by air is merely incidental to the person's other business or is, in it self, a major enterprise for profit." (Emphasis added). In other words, you do not apply the "major enterprise for profit" test unless it is doubtful whether an operation is for compensation or hire."
The same letter also states, however, that "
The FAA has consistently taken the position that an operation for compensation or hire is prohibited under §91.319( a)(2) when it involves the transportation by air of persons or property of another, but not when it involves the transportation ofthe operator's employees or property. More precisely, flights are not considered for compensation or hire if the operator is carrying only his own employees who are necessary for the purpose of the flight. However, if the operator carries persons or property of another and receives compensation that operation would be a violation of section 91.319(a)(2)."
Furthermore, the same letter goes on to state that while a flight might be conducted using company personnel and equipment (survey work, for example) as aerial work, returning to the point of departure, a flight which lands at more than one airport takes the flight into a "dual purpose" status and invalidates the aerial work provisions of the regulation. Additionally, the specifics of the airworthiness certificate itself also apply.
http://www.faa.gov/about/office_org/...rpretation.pdf