Rule2021-14765
Notification of Policy for Flight Training in Certain Aircraft
Primary source
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Published
July 12, 2021
Effective
July 12, 2021
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
This notification provides clarification on flight training for compensation in certain aircraft that hold special airworthiness certificates including limited category, experimental category, and primary category aircraft. It also provides guidance on how flight training for compensation can be accomplished in these aircraft in compliance with regulations and establishes a process for owners of experimental aircraft to obtain a letter of deviation authority to receive and provide compensation for flight training in their experimental aircraft.
Full Text
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<title>Federal Register, Volume 86 Issue 130 (Monday, July 12, 2021)</title>
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[Federal Register Volume 86, Number 130 (Monday, July 12, 2021)]
[Rules and Regulations]
[Pages 36493-36496]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-14765]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61 and 141
[Docket No.: FAA-2021-0592]
Notification of Policy for Flight Training in Certain Aircraft
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Notification of policy.
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SUMMARY: This notification provides clarification on flight training
for compensation in certain aircraft that hold special airworthiness
certificates including limited category,
[[Page 36494]]
experimental category, and primary category aircraft. It also provides
guidance on how flight training for compensation can be accomplished in
these aircraft in compliance with regulations and establishes a process
for owners of experimental aircraft to obtain a letter of deviation
authority to receive and provide compensation for flight training in
their experimental aircraft.
DATES: The policy described herein is effective July 12, 2021.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this policy notification, contact Erin Cappel for information about
Letters of Deviation Authority and Thomas (TJ) Leahy for information
about exemption, General Aviation and Commercial Division, General
Aviation Operations Branch, (202) 267-1100, or email <a href="/cdn-cgi/l/email-protection#497064080f1a64717979640a263b3b2c3a3926272d2c272a2c092f2828672e263f"><span class="__cf_email__" data-cfemail="f5ccd8b4b3a6d8cdc5c5d8b69a87879086859a9b91909b9690b5939494db929a83">[email protected]</span></a>, 800 Independence Ave. SW, Washington, DC 20591.
SUPPLEMENTARY INFORMATION:
I. Background
On April 2, 2021, the United States Court of Appeals for the
District of Columbia Circuit dismissed a petition for review of the
FAA's emergency cease and desist order against Warbird Adventures, Inc.
and Thom Richard (hereinafter ``Warbirds''), ordering that they cease
and desist from operating their limited category aircraft in violation
of Sec. 91.315 of title 14 of the Code of Federal Regulations (14
CFR). In this case, Warbirds maintained a publicly available website
that advertised opportunities to fly in Warbirds' limited category
aircraft at upcoming airshows and allowed members of the public to book
flights in exchange for substantial amounts of money. Section 91.315
states that no person may operate a limited category aircraft carrying
persons or property for compensation or hire.
Before the Court, Warbirds argued that it was conducting flight
training for compensation in its limited category aircraft, which it
claimed is not prohibited under Sec. 91.315.\1\ The FAA responded
that, under the plain language of Sec. 91.315, flight training for
compensation constitutes operating a limited category aircraft carrying
a person for compensation or hire and, therefore, is a violation of the
regulation. After the Court dismissed the petition for review, several
industry groups requested that the FAA publish a statement explaining
the impact of the decision and providing clarification regarding flight
training in general and flight training for compensation in certain
aircraft that hold special airworthiness certificates.\2\ The FAA is
issuing this notification in response to the request from industry.
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\1\ The FAA has not conceded that the flights being operated by
Warbirds were for the purpose of flight training.
\2\ On April 19, 2021, AOPA, EAA, and GAMA sent a joint letter
to Ali Bahrami, then Associate Administrator for Aviation Safety. A
copy of this letter and the response has been placed in the docket
for this notification.
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II. FAA Regulations and Guidance
A. Pilot Requirements and Operating Requirements
The requirements for a person exercising the privileges of a pilot
certificate or a flight instructor certificate are generally contained
in 14 CFR part 61. These regulations govern what is required to ``act
as pilot in command,'' ``serve as a required flightcrew member,'' or
``conduct flight training in an aircraft.'' The regulations in 14 CFR
part 91 by contrast contain operating requirements that govern how the
aircraft itself may be operated. The term ``operate'' is broadly
defined in 14 CFR 1.1 as ``use, cause to use or authorize to use
aircraft, for the purpose (except as provided in Sec. 91.13 of this
chapter) of air navigation including the piloting of aircraft, with or
without the right of legal control (as owner, lessee, or otherwise).''
As such, the determination of whether someone is operating an aircraft
is not contingent on ownership, flightcrew status, or the receipt of
payment for the use of the aircraft.
Although a person may hold the appropriate privileges ``to act as
pilot in command'' or ``conduct flight training'' under part 61, the
regulations in part 91 may restrict the exercise of those privileges in
a particular category of aircraft under certain conditions, such as
operations conducted for compensation or hire. As defined, the term
``operate'' has broader meaning than the general terms used in part 61
that address ``acting as pilot in command'' or ``exercising the
privileges'' of a particular pilot certificate. A person may be
considered to ``operate'' an aircraft under the Sec. 1.1 definition
without serving as a required flightcrew member or manipulating the
controls of the aircraft.
As noted, under Sec. 91.315, no person may operate a limited
category aircraft carrying persons or property for compensation or
hire. Based on the plain language of the regulation, the FAA's position
as represented in a 2014 legal interpretation \3\ and restated in the
Warbirds case is that a flight instructor who is operating (i.e.
``using'') a limited category aircraft that is carrying a person (e.g.
the person receiving instruction) for compensation (e.g. monetary
payment) is acting contrary to the regulation.\4\
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\3\ FAA Legal Interpretation to Gregory Morris (October 7,
2014). The Morris Interpretation concluded, inter alia, that Sec.
91.315 ``does not set forth any exceptions for providing flight
training for hire in a limited category aircraft'' and that ``the
only way to provide such training is pursuant to an exemption from
this section of the regulations'' following the procedures of 14 CFR
part 11.
\4\ Given the broad definition of ``operate'' in Sec. 1.1, both
the owner of a limited category aircraft seeking flight training and
the flight instructor providing the training are considered to be
operating the aircraft. The FAA notes that the term ``operate'' has
a different meaning from the term ``operational control,'' which is
defined in Sec. 1.1 as ``the exercise of authority over initiating,
conducting or terminating a flight.''
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The regulations governing other categories of aircraft
(experimental aircraft in Sec. 91.319 and primary category aircraft in
Sec. 91.325) include the same language as the prohibition in Sec.
91.315. The prohibitions in Sec. Sec. 91.319 and 91.325 that mirror
the language in Sec. 91.315 must be read to have the same meaning.\5\
As such, a flight instructor providing flight training in one of these
categories of aircraft for compensation is acting contrary to the
regulations absent a letter of deviation authority (LODA), if
applicable, or exemption.
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\5\ Consistent with the position for limited category aircraft,
FAA Order 8900.1 addresses the prohibition against the operation of
an experimental aircraft to carry persons or property for
compensation or hire. It acknowledges that the restriction
``prohibits the widespread use of experimental aircraft for flight
training for compensation or hire.'' FAA Order 8900.1, Vol. 3, Chpt.
11, sec. 1, para. 3-293.
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B. FAA Guidance on Flight Training for Compensation in Experimental
Aircraft
FAA Order 8900.1 contains guidance for FAA inspectors that
indicates that flight training in an experimental aircraft for
compensation is permissible without a LODA under certain
circumstances.\6\ The guidance states that flight instructors may
receive compensation for providing flight training in an experimental
aircraft but may not receive compensation for the use of the aircraft
in which they provide that flight training unless they obtain a LODA
issued under Sec. 91.319(h). Likewise, the guidance states that owners
of experimental aircraft may receive and provide compensation for
flight training in their aircraft without a LODA, but owners may not
receive compensation for the use of their aircraft for flight training
except in
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accordance with a LODA issued under Sec. 91.319(h).\7\
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\6\ FAA Order 8900.1, Vol. 3, Chpt. 11, sec. 1, para. 3-292.
\7\ Although there is no written guidance for limited category
and primary category aircraft, the FAA has applied the same approach
to flight training for compensation in limited category and primary
category aircraft.
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The distinction set forth in FAA Order 8900.1 is inconsistent with
the definition of ``operate'' in Sec. 1.1 and the plain language of
Sec. 91.319. Where a regulation and guidance conflict, the regulation
controls.\8\ Accordingly, owners of experimental aircraft and flight
instructors who have operated experimental aircraft for the purpose of
compensated flight training without obtaining a LODA (as allowed by FAA
guidance) will be required to obtain a LODA to remain compliant with
the regulations.
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\8\ The FAA will revise the guidance in the 8900.1 to reflect
the requirements in the regulation.
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III. Process for Compliance
The FAA acknowledges that the disconnect between the regulations
and the guidance to inspectors has created confusion in industry. The
FAA also recognizes the value of specialized flight training in
aircraft that hold special airworthiness certificates under certain
conditions. This section provides guidance to owners of affected
aircraft and flight instructors seeking to conduct flight training for
compensation in these aircraft.
A. Experimental Category Aircraft
In general, the FAA places limitations on the use of aircraft that
hold experimental airworthiness certificates because the airworthiness
certification requirements for these aircraft impose no standard and
pose unique operational risk to the national airspace system. FAA
regulations and guidance direct that, for most training, pilots should
use a standard category aircraft to accomplish training rather than
aircraft that hold special airworthiness certificates.
Section 91.319(h), however, permits a person to apply for deviation
authority to conduct flight training in an experimental aircraft.
Currently, individuals seeking to provide flight training and receive
compensation for both the flight training and the use of the
experimental aircraft must submit an application package to the Flight
Standards District Office (FSDO) in the district in which the training
will take place. Under Sec. 91.319(h)(2), a request for deviation
authority must contain a complete description of the proposed operation
and justification that establishes a level of safety equivalent to that
provided under the regulations for the deviation requested. The FAA
generally limits LODAs to training that can only be accomplished in
aircraft with experimental certificates and directs its inspectors
that, with a few exceptions, LODAs should not be issued to permit
flight training in experimental aircraft leading toward the issuance of
a pilot certificate, rating, or operating privilege.
As discussed, FAA guidance incorrectly indicates that no LODA is
necessary if the owner of an experimental aircraft provides
compensation for flight training in the owner's own aircraft and no
compensation is provided for the use of the aircraft itself. The FAA
will update the guidance to align with the regulation, as previously
discussed. To mitigate disruption for this type of flight training,
which has been allowed under FAA guidance and is viewed as an increased
safety measure for pilots who regularly fly these aircraft, the FAA has
developed an interim process to issue LODAs to the owners of
experimental aircraft and flight instructors that will permit flight
training for compensation in experimental aircraft when no compensation
is provided for the use of the aircraft.
The FAA finds that, for owners of experimental aircraft seeking
flight training in the aircraft they will regularly fly in the national
airspace, the standard under Sec. 91.319(h)(2) for granting a LODA has
been met. The FAA has long emphasized the importance of pilots being
trained and checked in the aircraft they will operate. Specifically, it
is critical that pilots understand and are familiar with the particular
systems, procedures, operating characteristics, and limitations of the
aircraft they will operate. This flight training is distinct from a
situation where an aircraft with a special airworthiness certificate is
``held out'' broadly for training to individuals who pay for both the
flight training and the use of an aircraft that they will not have
further access to upon completion of LODA training. It is also distinct
from flight training that can be accomplished effectively and safely in
a standard category aircraft.
The FAA will accept requests for a LODA electronically from an
owner of an experimental aircraft or flight instructor who chooses to
conduct training in experimental aircraft. LODAs, once issued, will
define the scope of the flight training activity so that owners of
experimental aircraft may receive and provide compensation for flight
training in their aircraft, as well as permit flight instructors to
receive compensation for flight training in an experimental aircraft.
These LODAs will prohibit owners and flight instructors from receiving
compensation for any other use of the aircraft in which the flight
training is provided.
To obtain a LODA, owners of experimental aircraft and flight
instructors providing flight training in experimental aircraft may
submit a request to the following email address: <a href="/cdn-cgi/l/email-protection#fcc5d1bdaaafd1bdbabbd1b0b3b8bdbc9a9d9dd29b938a"><span class="__cf_email__" data-cfemail="c0f9ed819693ed818687ed8c8f848180a6a1a1eea7afb6">[email protected]</span></a>. Applicants seeking a LODA through this process must
provide the following information:
<bullet> Name
<bullet> Address
<bullet> Email address
<bullet> Pilot Certificate Number
<bullet> Flight instructor certificate number (if applying as a
Certificated Flight Instructor (CFI))
<bullet> Aircraft Registration Number (if applying as an owner)
<bullet> Aircraft make/model in which you will receive or provide
instruction
<bullet> Aircraft home base airport (if applying as an owner)
The FAA will review the information submitted and issue a LODA (via
email) that reflects the conditions and limitations contained in this
notification, as well any additional limitations required in accordance
with Sec. 91.319(h) and (i).
Individuals seeking to provide flight training and receive
compensation for both the flight training and the use of the aircraft
must continue to apply for LODAs through their local FSDOs.
B. Limited Category and Primary Category Aircraft
Section 91.315 does not permit an individual to obtain deviation
authority to conduct flight training for compensation or hire in a
limited category aircraft. Therefore, as explained in the 2014 legal
interpretation, the only way to provide flight training for
compensation in a limited category aircraft is pursuant to an exemption
from the regulation. Because there is no deviation authority in Sec.
91.325 for primary category aircraft, the owners of these aircraft and
flight instructors seeking to conduct flight training for compensation
must likewise obtain an exemption from the regulation.
As with the process for issuing LODAs to owners and flight
instructors, the FAA will consider adopting a fast-track exemption
process for owners of limited category and primary category aircraft
seeking to conduct flight training for compensation in these aircraft.
As with experimental category aircraft, the FAA will consider granting
relief for flight training operations when
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compensation is provided solely for the flight training and not the use
of the aircraft.
The FAA notes that any operator of a limited category aircraft that
holds an exemption to conduct Living History of Flight (LHFE)
operations already holds the necessary exemption relief to conduct
flight training for its flightcrew members. LHFE exemptions grant
relief to the extent necessary to allow the exemption holder to operate
certain aircraft for the purpose of carrying persons for compensation
or hire for living history flight experiences. As a condition of these
exemptions, the operators must provide regular flight training and
checking to flightcrew members. As such, these flight training
operations are considered necessary for the operator to conduct the
LHFE flights themselves.\9\ The FAA will clarify this relief when
operators apply for renewal of their LHFE exemptions.
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\9\ The FAA cautions, however, that LHFE exemptions do not
permit operators to allow passengers on LHFE flights to manipulate
the controls of the aircraft under the guise of flight training. The
flight training relief extends only to the LHFE operator's own
flightcrew members for the purpose of training those individuals to
conduct LHFE flights.
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For the safety reasons set forth in this notification, the FAA is
considering a rulemaking that would enable the flight training activity
discussed in this notification without the need to obtain an exemption
or LODA from the FAA.
Issued in Washington, DC.
Ricardo Domingo,
Executive Director, Flight Standards Service, AFX-1.
[FR Doc. 2021-14765 Filed 7-8-21; 8:45 am]
BILLING CODE 4910-13-P
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