Use of Non-Commercial Aircraft Is Generally Prohibited
Below is a condensed version of this topic; for complete guidance please refer to the House Ethics Manual, Chapter 3 on travel.
At times Members are offered the use of, or wish to use, non-commercial aircraft for travel. Pursuant to a rules change during the 110th Congress, the circumstances under which Members are permitted to accept a flight on a non-commercial aircraft has been significantly narrowed. As discussed under the heading “Acceptable Travel Expenses”, under the gift rule, Members and staff participating in privately-sponsored, officially-connected travel may not accept travel on a non-commercial, private, or chartered flight unless exceptional circumstances are demonstrated in writing by the private sponsor.
In addition, under the House Code of Official Conduct, Members are prohibited from using personal, official, or campaign funds 37 to pay for or reimburse the expenses of a flight on any aircraft unless one of the exceptions in the rule is satisfied (House Rule 23, clause 15). 38 The major exceptions are for travel on commercially scheduled flights and flights provided by individuals or companies operating a charter service. However, the use of personal, official, or campaign funds to pay for a flight on a non-commercial aircraft is generally prohibited. Each of the exceptions to the prohibition on the use of personal, official, or campaign funds for a flight on an aircraft are discussed below.
Also discussed in this section are three limited circumstances under which a Member (or staff person) may be permitted to accept a flight on a non-commercial aircraft as a gift, that is, without having to reimburse the cost of the flight.
A Member may use personal, official, or campaign funds to pay for or reimburse the cost of a flight on an aircraft when the flight is provided under one of the following circumstances:
- The aircraft is operated by an air carrier or commercial operator, including a charter service; 39
- The aircraft is owned or leased by the Member or the Member’s family member,40 including fractional ownership or equity in a nonpublic corporation, provided that such use does not exceed the individual’s proportionate ownership or equity share;
- The flight is for the personal use of the Member and is otherwise permissible on the basis of personal friendship;41 or
- The aircraft is operated by the federal government or any state government.
Members wishing to reimburse the cost of a flight permitted under the rule using official funds or campaign funds should consult the Committee on House Administration or the Federal Election Commission (FEC), respectively, for guidance on the timing and rates of reimbursement for a permissible flight and the applicable reporting requirements. The FEC should also be consulted for guidance on whether travel on non-commercial aircraft may be accepted on behalf of a Member’s campaign as a permissible in-kind contribution.42
Acceptance of Travel Provided on the Basis of Personal Friendship. At times a Member, officer, or employee is offered a flight on an aircraft that is personally owned by an individual whom the official knows. If the requirements of the personal friendship provision of the gift rule are satisfied, the offer of a flight to the Member or staff person may be accepted as a gift. Those requirements are detailed in Chapter 2 on gifts. Several points to bear in mind regarding this type of travel are as follows:
- As a general matter, the personal friendship provision can apply only if the aircraft is owned by the individual, and cannot apply to a flight on an aircraft owned by a corporation or other entity.
- When the value of a gift proposed to be accepted under the personal friendship provision exceeds $250, written approval of the Committee is required before the gift can be accepted. Practically any flight on a non-commercial aircraft will exceed $250 in value and hence will require Committee approval.43
- Gifts received by a Member, officer, or senior employee that exceed $335 in a calendar year – including flights on non-commercial aircraft – must be reported on the individual’s annual Financial Disclosure Statement, unless the Committee grants a waiver of the reporting requirement.
- A flight may not be accepted on the basis of personal friendship when the primary purpose of the trip is either to conduct House business or engage in campaign activity.
Acceptance of Travel Resulting From Outside Business, Employment, or Other Activities. In participating in travel resulting from outside business, employment, or other activities, a Member, officer, or employee may accept a flight on a non-commercial aircraft provided by the business or other entity, if two conditions are satisfied: (1) The non-commercial aircraft was not provided because of the individual’s official position, and (2) such travel is customarily provided to others in similar circumstances.
Acceptance of Travel Paid for by a Foreign Government. A flight on a non-commercial aircraft that is paid for by a foreign government may be accepted, provided that the flight complies with the requirements of either the Foreign Gifts and Decorations Act (“FGDA”) or the Mutual Educational and Cultural Exchange Act (“MECEA”). The requirements of those statutes, including that travel paid for under the FGDA must take place totally outside the United States, are explained above.
funds of any political committee under the Federal Election Campaign Act of 1971, without regard to whether the committee is an authorized committee of the Member . . . involved under such Act. [House Rule 23, clause 15(c)(1).]
38 This provision was added pursuant to H. Res. 363 (May 2, 2007). The Federal Election Campaign Act of 1971 (2 U.S.C. § 431 et seq.) has been amended to impose a similar prohibition on candidates for election to the House of Representatives. See The Honest Leadership and Open Government Act of 2007, Pub. L. 110-81, § 601, 121 Stat. 735, 774 (Sept. 14, 2007).
39 Specifically, the prohibition does not apply if “the aircraft is operated by an air carrier or commercial operator certified by the Federal Aviation Administration and the flight is required to be conducted under air carrier safety rules” (House Rule 23, clause 15(b)(1)). In the case of foreign travel, the prohibition does not apply if the aircraft is operated by “an air carrier or commercial operator certified by an appropriate foreign civil aviation authority and the flight is required to be conducted under air carrier safety rules” (id). An aircraft that does not fall within one of these classifications is considered a non-commercial aircraft.
43 The value of a flight on a non-commercial aircraft is to be determined as follows. When the travel is via a previously or regularly-scheduled flight by the owner or operator of the aircraft, and the cities between which the Member or staff person is flying have regularly-scheduled air service (regardless of whether such service is direct), the value of the use of the aircraft is the cost of a first-class ticket from the point of departure to the destination. If only the coach rates are provided between those points, the value is the coach rate. If more than one first class rate is available, the lowest fare may be used. However, no discount fares may be used for valuation purposes.
When the flight is scheduled specifically for Member or staff person use, or when either the point of origin or destination does not have regularly-scheduled air service, the value of the use of the aircraft is the cost of chartering the same or similar aircraft for that flight.