Proposed Rule2023-12600
Public Aircraft Logging of Flight Time, Training in Certain Aircraft Holding Special Airworthiness Certificates, and Flight Instructor Privileges
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Published
June 23, 2023
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
As directed by the FAA Reauthorization Act of 2018, the FAA proposes to allow pilots conducting public aircraft operations (PAO) to credit their flight time towards FAA civil regulatory requirements. Additionally, consistent with the James M. Inhofe National Defense Authorization Act for 2023 (2023 NDAA), the FAA proposes to amend the operating rules for experimental aircraft to permit certain flight training, testing, and checking in these aircraft without a letter of deviation authority (LODA). The FAA proposes to extend the same relief to certain flight training, testing, and checking in limited category, primary category, and experimental light sport aircraft. The FAA also proposes miscellaneous amendments related to recent flight experience, flight instructor privileges, flight training in certain aircraft holding special airworthiness certificates, and the related prohibitions on conducting these activities for compensation or hire. These proposed changes will clarify existing regulatory requirements, align the regulations with current industry practice, and ensure compliance with the FAA Reauthorization Act of 2018 and the 2023 NDAA.
Full Text
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[Federal Register Volume 88, Number 120 (Friday, June 23, 2023)]
[Proposed Rules]
[Pages 41194-41222]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12600]
[[Page 41193]]
Vol. 88
Friday,
No. 120
June 23, 2023
Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 61 and 91
Public Aircraft Logging of Flight Time, Training in Certain Aircraft
Holding Special Airworthiness Certificates, and Flight Instructor
Privileges; Proposed Rule
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 /
Proposed Rules
[[Page 41194]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61 and 91
[Docket No. FAA-1351; Notice No. 23-09]
RIN 2120-AL61
Public Aircraft Logging of Flight Time, Training in Certain
Aircraft Holding Special Airworthiness Certificates, and Flight
Instructor Privileges
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: As directed by the FAA Reauthorization Act of 2018, the FAA
proposes to allow pilots conducting public aircraft operations (PAO) to
credit their flight time towards FAA civil regulatory requirements.
Additionally, consistent with the James M. Inhofe National Defense
Authorization Act for 2023 (2023 NDAA), the FAA proposes to amend the
operating rules for experimental aircraft to permit certain flight
training, testing, and checking in these aircraft without a letter of
deviation authority (LODA). The FAA proposes to extend the same relief
to certain flight training, testing, and checking in limited category,
primary category, and experimental light sport aircraft. The FAA also
proposes miscellaneous amendments related to recent flight experience,
flight instructor privileges, flight training in certain aircraft
holding special airworthiness certificates, and the related
prohibitions on conducting these activities for compensation or hire.
These proposed changes will clarify existing regulatory requirements,
align the regulations with current industry practice, and ensure
compliance with the FAA Reauthorization Act of 2018 and the 2023 NDAA.
DATES: Send comments on or before August 22, 2023.
ADDRESSES: Send comments identified by docket number FAA-2023-1351
using any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">www.regulations.gov</a> and
follow the online instructions for sending your comments
electronically.
<bullet> Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
<bullet> Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
<bullet> Fax: Fax comments to Docket Operations at (202) 493-2251.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to <a href="http://www.regulations.gov">www.regulations.gov</a>, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
<a href="http://www.dot.gov/privacy">www.dot.gov/privacy</a>.
Docket: Background documents or comments received may be read at
<a href="http://www.regulations.gov">www.regulations.gov</a> at any time. Follow the online instructions for
accessing the docket or go to the Docket Operations in Room W12-140 of
the West Building Ground Floor at 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Jabari Raphael, General Aviation and
Commercial Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591; (202)
267-1088; email <a href="/cdn-cgi/l/email-protection#3b715a595a495215695a4b535a5e577b5d5a5a155c544d"><span class="__cf_email__" data-cfemail="246e454645564d0a7645544c454148644245450a434b52">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
List of Abbreviations and Acronyms Frequently Used in This Document
ATC Air Traffic Control
ELSA Experimental Light-Sport Aircraft
ICAO International Civil Aviation Organization
IFR Instrument Flight Rules
LODA Letter of Deviation Authority
NAS National Airspace System
NPRM Notice of Proposed Rulemaking
NTSB National Transportation Safety Board
PAO Public Aircraft Operation
PIC Pilot-in-command
SIC Second-in-command
SLSA Special Light-Sport Aircraft
VFR Visual Flight Rules
Table of Contents
I. Executive Summary
II. Authority for the Rulemaking
III. Logging Flight Time, Recent Flight Experience, and Flight
Instructor Privileges
A. Logging Flight Time in Public Aircraft Operations (Sec.
61.51)
B. Recent Flight Experience (Sec. 61.57)
C. Flight Instructor Privileges (Sec. Sec. 61.193 and 61.413)
IV. Aircraft Holding Certain Special Airworthiness Certificates
A. Background: Emergency Cease and Desist Order, Litigation, and
FAA Notice
B. Part 91 Regulations Governing the Operation of Aircraft With
Certain Airworthiness Certificates (Sec. Sec. 91.315, 91.319,
91.325, and 91.327)
C. Flight Training, Checking, and Testing (Sec. 91.326(a))
D. LODA Framework (Sec. 91.326(b) and (c))
V. Regulatory Notices and Analyses
A. Regulatory Evaluation
B. Regulatory Flexibility Determination
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
C. Executive Order 13609, International Cooperation
VII. Additional Information
A. Comments Invited
B. Confidential Business Information
C. Electronic Access and Filing
I. Executive Summary
As directed by section 517 of the FAA Reauthorization Act of 2018
(Pub. L. 115-254), the FAA proposes to allow pilots conducting public
aircraft operations (PAO) under Title 49 of the United States Code
(U.S.C.) 40102(a)(41) and 40125 to credit their flight time towards FAA
civil regulatory requirements. While section 517 requires the FAA to
issue regulations to allow the logging of flight time in aircraft used
in PAO under direct operational control of forestry and fire protection
agencies, the FAA proposes to more broadly consider all PAO for flight
time. Moreover, the FAA proposes to expand the regulatory framework to
allow pilots serving in PAO as second in command to log flight time,
under certain circumstances. Enabling pilots to log SIC time while
operating a PAO encourages the use of a second pilot where one may not
be required and increases overall safety in the NAS.
The FAA also proposes to clarify recent flight experience
requirements and the authorized flight training activities under part
61. The FAA proposes to add Sec. 61.57(e)(5) to codify an exception
that, in certain circumstances, would enable a person receiving flight
training to act as PIC, even if that person does not meet the recent
flight experience requirements for carrying passengers under Sec.
61.57(a) or (b). Additionally, the FAA proposes to add ``maintaining or
improving skills for certificated pilots'' to the list of flight
instructor privileges found in Sec. Sec. 61.193(a)(7) and 61.413(a)(6)
to clarify that flight instructors are authorized to conduct certain
specialized and elective training.
The proposed rule would also amend part 91 operating rules to
clarify
[[Page 41195]]
prohibited operations and create limited exceptions to the general
prohibition on carriage of persons for compensation or hire for flight
training, testing, and checking in aircraft holding certain special
airworthiness certificates. Currently, part 91 regulations broadly
prohibit a person from operating certain aircraft with special
airworthiness certificates (i.e., limited category, experimental, or
primary category aircraft) \1\ carrying persons and property for
compensation or hire. These part 91 regulations use broad terms that
the FAA has defined either in regulation (i.e., operate, person) or
through interpretation and guidance (i.e., compensation). The broad
language in these regulations was the subject of recent litigation \2\
that identified a discrepancy between the plain language of the
regulation and the FAA's longstanding application of the regulation to
certain flight training activity. Therefore, the FAA initiated this
rulemaking to remove the requirement for owners (and certain persons
affiliated with owners) to obtain a LODA to accomplish flight training
in their aircraft and to clarify the general prohibition on operating
aircraft with certain special airworthiness certificates while carrying
persons or property for compensation or hire.
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\1\ Section 21.175(b) identifies special airworthiness
certificates as primary, restricted, limited, light-sport, and
provisional airworthiness certificates, special flight permits, and
experimental certificates.
\2\ Warbird Adventures, Inc. v. Fed. Aviation Admin., Petition
for Review from an Emergency Cease and Desist Order Issued by the
Federal Aviation Administration on July 28, 2020, Doc. No. 1854466
(D.C. Cir. 2020).
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During the development of this NPRM, President Joseph R. Biden, Jr.
signed into law the James M. Inhofe National Defense Authorization Act
for 2023 (2023 NDAA), which included a self-implementing provision that
amended the operating rules to permit certain flight training, testing,
and checking in experimental aircraft without a letter of deviation
authority (LODA). The FAA proposes to extend the same relief to certain
flight training, testing, and checking in limited category, primary
category, and experimental light sport aircraft. The FAA anticipates
that the proposed changes will provide greater access to specialized
training in aircraft with special airworthiness certificates.
The FAA analyzed the costs and benefits for the provisions related
to PAO and the provisions related to training, testing, and checking in
certain aircraft with special airworthiness certificates separately.
The provisions related to PAO impose no new costs and the FAA expects
the proposal will reduce the costs for pilots conducting PAO to
maintain their civil certificates and ratings.\3\ The provisions
related to training, testing and checking impose approximately $100,000
in total one-time costs (undiscounted) over a period of two years.
These costs stem from the requirement for current LODA holders who
broadly offer certain aircraft with special airworthiness certificates
for training to reapply within two years of the effective date.
However, the FAA expects the cost savings from the elimination of LODA
requirements for pilots receiving training in their own aircraft, the
streamlined regulatory framework, and the safety benefits from greater
access to specialized training in aircraft with special airworthiness
certificates to exceed the initial costs. Overall, the FAA concluded
that this proposal would enhance safety with minimal impact on cost.
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\3\ The FAA does not maintain counts of pilots who fly PAO for
federal, state, and local governments and there is insufficient data
for the FAA to estimate the number of pilots affected by this
proposal. See ``How to Become a Government Pilot'' in Flying
Magazine by James Wynbrandt, Dec. 13, 2017. Available at: <a href="https://www.flyingmag.com/how-to-become-government-pilot/">https://www.flyingmag.com/how-to-become-government-pilot/</a> Last accessed Jul.
22, 2022.
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II. Authority for the Rulemaking
The FAA's authority to issue rules on aviation safety is specified
in Title 49 of the United States Code. Subtitle I, Section 106
prescribes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes the scope of the FAA's authority in more
detail.
The FAA is proposing this rulemaking under the authority described
in Subtitle VII, Part A, Subpart iii, section 44701, General
Requirements; section 44702, Issuance of Certificates; and section
44703, Airman Certificates. Under these sections, the FAA prescribes
regulations and minimum standards for practices, methods, and
procedures the Administrator finds necessary for safety in air
commerce. The FAA is also authorized to issue certificates, including
airman certificates, and medical certificates, to qualified
individuals. This rulemaking proposal is within the scope of that
authority.
Furthermore, section 517 of Public Law 115-254, Public Aircraft
Eligible for Logging Flight Times, directs the Administrator to revise
14 CFR 61.51(j)(4) to include aircraft under direct operational control
of forestry and fire protection agencies as public aircraft eligible
for logging flight times. The FAA also proposes to codify section 5604
of the 2023 NDAA, which directs that under certain conditions, flight
training, testing, and checking in experimental aircraft does not
require a LODA from the FAA.
III. Logging Flight Time, Recent Flight Experience, and Flight
Instructor Privileges
In 14 CFR part 61, the FAA proposes to modify Sec. Sec. 61.51,
61.57, 61.193, and 61.413. First, the FAA proposes to modify Sec.
61.51 to expand PAO under which a pilot may credit flight time towards
FAA civil regulatory requirements. Second, the FAA proposes to modify
Sec. 61.57(e) to include an exception to the recent flight experience
requirements for flight instructors and certificated pilots while
conducting flight training for the purpose of meeting recent flight
experience requirements. Third, the FAA proposes to modify Sec. Sec.
61.193 and 61.413 to clarify the privileges an authorized flight
instructor may exercise within the limits of their certificate.
A. Logging Flight Time in Public Aircraft Operations (Sec. 61.51)
1. Aircraft Requirements for Logging Flight Time
As specified in 14 CFR part 61, pilots must document and record
certain aeronautical experience.\4\ Section 61.51 provides the
requirements for logging aeronautical experience for airman
certificates, ratings, privileges, and flight experience. In
particular, Sec. 61.51(j) specifies the aircraft requirements for
logging flight time. Section 61.51(j) states that, for time to be
logged, it must be acquired in an aircraft that is identified as an
aircraft under Sec. 61.5(b) \5\ and is (1) an aircraft of U.S.
registry with either a standard or special airworthiness certificate,
(2) an aircraft of foreign registry with an airworthiness certificate
that is approved by the aviation authority of a foreign country that is
a Member State to the Convention on International Civil Aviation
Organization (ICAO), (3) a military aircraft under the direct
operational control of the U.S. Armed Forces, or (4) an aircraft
engaged in a public aircraft operation (PAO) while engaged on an
official law enforcement
[[Page 41196]]
flight for a Federal, State, county, or municipal law enforcement
agency.
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\4\ Section 61.51(a) specifies that certain training time and
aeronautical experience must be documented and recorded in a ``form
and manner acceptable to the Administrator.'' Often, this is
accomplished through maintaining a logbook.
\5\ Section 61.5(b) lists the aircraft ratings that are placed
on pilot certificates issued under part 61. The ratings include
category ratings (e.g., airplane, rotorcraft) and class ratings
(e.g., multiengine land, helicopter).
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The FAA added Sec. 61.51(j) in 2009, after Congress passed Public
Law 106-424.\6\ Section 14 of Public Law 106-424 specified that an
aircraft must hold an airworthiness certificate, with some exceptions,
for a pilot to log flight time to meet the certificate, rating, or
recent flight experience requirements under part 61.\7\ Before
promulgation of Sec. 61.51(j), the FAA did not expressly prescribe in
regulation aircraft or airworthiness requirements for when a pilot may
log flight time.\8\ In earlier versions of the regulation, the type of
aircraft that could be flown to log flight time was not specified.
Rather, FAA guidance to inspectors stated that, ``[u]nless the vehicle
is [type certificated] as an aircraft in a category listed in Sec.
61.5(b)(1) or as an experimental aircraft, or otherwise holds an
Airworthiness Certificate, flight time acquired in such a vehicle may
not be used to meet requirements of part 61 for a certificate or rating
or to meet the recency-of-experience requirements.'' \9\
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\6\ Public Law 106-424, section 14, Crediting of Law Enforcement
Flight Time (Nov. 1, 2000). In determining whether an individual
meets the aeronautical experience requirements imposed under section
44703 of Title 49, United States Code, for an airman certificate or
rating, the Secretary of Transportation shall take into account any
time spent by that individual operating a public aircraft as defined
in section 40102 of Title 49, United States Code, if that aircraft
is--(1) identifiable by category and class; and (2) used in law
enforcement activities.
\7\ Pilot, Flight Instructor, and Pilot School Certification, 74
FR 42499 (Aug. 21, 2009).
\8\ Pilot, Flight Instructor, and Pilot School Certification, 74
FR 42499, 42515 (Aug. 21, 2009).
\9\ FAA Order 8900.1, Volume 5, Chapter 2, Section 5, Paragraph
5-316B.
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Given the specific mandate from Congress, in Sec. 61.51(j), the
FAA codified its existing guidance, added a provision for logging time
in military aircraft, and as directed by the legislation, included
Sec. 61.51(j)(4) to permit individuals to log flight time in aircraft
used in PAO for official law enforcement activities.
The current language of Sec. 61.51(j)(4) applies only to law
enforcement pilots and does not permit other pilots who conduct PAO to
credit flight time toward FAA requirements if the aircraft does not
also meet another provision under Sec. 61.51(j). Section 517 of the
FAA Reauthorization Act of 2018, Public Law 115-254 (section 517)
directs the FAA to expand PAO logging opportunities by permitting
pilots to log flight time in aircraft under the direct operational
control of forestry and fire protection agencies when conducted as PAO.
Notwithstanding the limited scope of section 517, the FAA is proposing
to amend Sec. 61.51(j)(4) to allow logging of flight time for pilots
engaged in any PAO in accordance with 49 U.S.C. 40102(a)(41) and
40125(a)(2). This proposal would expand Sec. 61.51(j)(4) not only to
law enforcement and forestry and fire protection services as directed
by Congress, but to any PAO including, but not limited to, those
involving national defense, intelligence missions, search and rescue,
aeronautical research, and biological or geological resource
management.
This proposal would also broaden the scope of aircraft requirements
in Sec. 61.51(j) for logging flight time. The FAA recognizes that the
2009 rule change, which codified these requirements in response to
section 14, prohibited individuals conducting PAO, with the exception
of law enforcement personnel, from logging flight time unless the
aircraft could meet another provision under Sec. 61.51(j). The FAA now
proposes to eliminate this distinction between law enforcement
personnel and all other individuals engaged in PAO by allowing logging
of flight time for PAO conducted in aircraft other than those listed in
Sec. 61.51(j)(1) through (3).
The FAA finds that amending the regulatory language to include all
aircraft engaged in PAO would not adversely affect safety. PAO already
occur within the national airspace system (NAS), and the FAA is now
proposing to allow pilots to credit these operations towards certain
civil regulatory requirements under part 61 like total flight time and
recent flight experience.
Flight experience gained during PAO is relevant to a pilot's
qualifications and currency under FAA regulations. Whether a pilot is
engaged in civil or public aircraft operations, the pilot must follow
flight rules in part 91. The pilots engaged in PAO interact with air
traffic control (ATC) and aircraft in the NAS the same as those engaged
in civil aircraft operations. In addition, pilots conducting PAO abide
by the same rules governing airspace classifications, right-of-way,
aircraft speed, and airspace restrictions. Pilots conducting PAO also
must act consistently with FAA weather minima, minimum altitude
requirements, instrument approach procedures, and other operating rules
applicable to certain persons and aircraft. Pilots conducting PAO also
employ many of the same aeronautical skills and accomplish the same
flight time as their counterparts performing civil operations,
including takeoffs and landings, visual and instrument procedures, risk
management, and enroute operations.
The FAA understands that pilots engaged in PAO may have been
memorializing their flight time in accordance with the requirements of
the government entities under which they operate, even though the FAA
does not currently recognize this time under Sec. 61.51 to satisfy
civil regulatory requirements. Those pilots who have not documented
this time may begin recording their PAO flight time in accordance with
this proposed rule in the event that this proposed rule becomes final.
In this regard, the proposed modification would permit PAO pilots to
credit their recorded flight time towards satisfying FAA requirements
retroactively. Any prior PAO aeronautical experience logged by a pilot
must meet the requirements in Sec. 61.51.
Although a pilot's total time may be used to meet certain flight
time requirements for certificates, ratings, or recent flight
experience, like that required for Sec. 61.57, the FAA notes that
flight time in PAO may not satisfy all part 61 requirements, such as a
flight review, a pilot-in-command (PIC) proficiency check, or practical
test. However, the recorded time may not be creditable toward any pilot
qualification or requirement if the rule does not become final.
Finally, the FAA notes that, a pilot logging flight time is
responsible for knowing whether they are engaging in operations that
are PAO or civil operations.
2. Second-in-Command Flight Time in Aircraft Engaged in Public Aircraft
Operations
The current second-in-command (SIC) logging regulations do not
adequately address aircraft used in PAO that do not also hold
airworthiness certificates issued by the FAA. For example, the SIC
logging requirements in Sec. 61.51(f) permit a person to log time as
SIC based on the number of pilots required by the type certification of
the aircraft or the regulations under which the flight is conducted. In
addition, since 2018, part 135 SICs who are not required by the type
certification of the aircraft or the part 135 operating rules also may
log SIC flight time under Sec. 61.51(f)(3) as part of an approved SIC
professional development program (SIC PDP) consistent with the
requirements in Sec. 135.99(c).\10\ For aircraft exclusively used in
PAO that do not hold airworthiness certificates, there may be no type
certificate designating that two pilots are required. In addition, PAO
are not subject to FAA regulations on SIC
[[Page 41197]]
requirements (e.g., Sec. 91.531). As such, under Sec. 61.51(f), an
assigned second pilot in a PAO does not meet the requirements to log
SIC time.
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\10\ 83 FR 30232 (Jun. 27, 2018).
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While section 517 is silent as to how pilot time may be logged,
whether as PIC or SIC, the FAA now proposes to clarify the pilot time
that may be logged to meet FAA requirements in response to questions
from the regulated community. Pilots conducting qualified PAO are not
required to meet FAA pilot certification requirements. Instead, the
government entity may develop its own pilot qualification requirements
for these operations. Therefore, the FAA proposes to explicitly allow
the logging of SIC time during PAO, with certain limitations, to
encourage safety and promote consistency with the regulated community.
To determine the appropriate scope of the proposal regarding SIC
logging during PAO, the FAA considered the requirements set forth in
Sec. 91.531 and 14 CFR part 135. For operations under part 91, Sec.
61.51(f) allows a pilot to log SIC time in those airplanes when
operating in accordance with Sec. 91.531(a). Section 91.531 specifies
requirements to operate with an SIC in certain airplanes, such as those
type certificated for more than one required pilot, large airplanes,
and commuter category airplanes. Likewise, for a part 135 pilot to log
SIC time under Sec. 61.51(f), a second pilot must either be required
by the aircraft type certificate, operating rule, or as prescribed in
Sec. 135.99.\11\ These operating rules under which a pilot may log SIC
time are established based on complexity of the operation. Examples of
aircraft that may require additional flightcrew members include large
aircraft or turbojet-powered airplanes, or complex operations such as
part 135 passenger carriage under instrument flight rules. Often, large
aircraft \12\ and turbojet-powered airplanes have a requirement for a
second pilot listed in the limitations section of the flight manual or
on the type certificate data sheet, if applicable. Section 91.9
requires that a person must operate a civil aircraft in accordance with
the aircraft flight manual.
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\11\ Section 135.99(a) provides that no certificate holder may
operate an aircraft with less than the minimum flight crew specified
in the aircraft operating limitations or the Aircraft Flight Manual
for that aircraft. Paragraph (b) states that no certificate holder
may operate an aircraft without a second in command if that aircraft
has a passenger seating configuration, excluding any pilot seat, of
ten seats or more. Paragraph (c) establishes the SIC PDP, which
permits a pilot employed by the certificate holder to log SIC flight
time under certain conditions for operations conducted under parts
91 and 135.
\12\ See 14 CFR 1.1 defining ``large aircraft'' as ``aircraft of
more than 12,500 pounds, maximum certificated takeoff weight.''
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Since aircraft used in PAO might not hold an airworthiness
certificate, there may be no associated aircraft flight manual or type
certificate. Additionally, the FAA regulations governing crew
complement discussed earlier do not apply to PAO. Finally, because a
PAO is not a part 135 operation, the part 135 operating rules (i.e.,
Sec. 135.99(c)) that allow for logging SIC time are unavailable to PAO
pilots.
As previously discussed, certain aircraft used in civil operations
require a second pilot for safety due to design complexity or
operational requirement. Enabling pilots to log SIC time while
operating a PAO encourages the use of a second pilot where one may not
be required and increases overall safety in the NAS. In addition, the
presence of a second pilot onboard the aircraft provides additional
resources to reduce PIC workload during critical phases of flight,
monitor for emergency circumstances, survey weather conditions, and
ensure safe operations. Thus, the FAA seeks to encourage the presence
of a second pilot in aircraft that would otherwise require a second
pilot under civil operations.
Consistent with the foregoing discussion, the FAA proposes to
enable logging of SIC time to meet FAA requirements in large aircraft
and turbojet powered airplanes. Likewise, the FAA proposes that, if an
aircraft holds or held a type certificate that requires a second pilot,
PAO pilots may also log SIC time. This proposal is similar to the
regulatory framework under which pilots serving in civil operations may
log flight time \13\ and, therefore, would allow PAO pilots to credit
their flight time towards FAA requirements in a similar manner to
pilots conducting civil operations. The proposal would permit PAO
pilots to credit their recorded flight time towards satisfying FAA
requirements retroactively.
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\13\ See 14 CFR 91.531, 135.99(a).
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Additionally, although PAO are conducted outside of FAA aircraft
and airmen certification requirements and certain safety oversight
regulations, each government entity is responsible for its own pilot
qualifications. For many government entities, this includes adopting
the same standards as those codified in 14 CFR to ensure pilot and
public safety. Logging flight time in PAO also provides a record of the
pilot's experience. By allowing pilots to credit their time conducting
PAO, the proposed rule would enable the FAA to review the totality of
an individual pilot's flight experience to satisfy civil requirements.
Likewise, enabling this time to be credited toward civil requirements
will create efficiency for affected pilots by removing the need for
duplicative flight time to be accomplished. In turn, the FAA could more
effectively ensure and oversee safety in the NAS. Accordingly, the FAA
proposes to add Sec. 61.51(f)(4) to clarify that a person designated
as SIC by a government entity may log SIC time if the aircraft used was
a large aircraft as defined in Sec. 1.1, a turbo-jet powered airplane,
or if the aircraft holds or originally held a type certificate that
requires a second pilot.
The FAA reviewed the minimum aeronautical experience requirements
for certification and ratings and found that the proposed SIC logging
time should be limited to pilots seeking an airplane transport pilot
(ATP) certificate. The FAA continues to find that ATP hours are largely
related to building time and experience whereas flight time necessary
to meet minimum aeronautical experience requirements for private pilot,
commercial, and instrument rating is more directly related to building
specific skillsets. Moreover, the required training and aeronautical
experience pilots accumulate in order to obtain these certifications
and ratings are fundamental building blocks necessary for the
development of proper aeronautical decision-making and skills.
In this regard, the FAA does not believe that pilots utilizing
proposed Sec. 61.51(f)(4) for building time towards meeting the
aeronautical experience requirements for a private pilot certificate,
commercial certificate, and instrument rating would be in the interest
of safety. This distinction is supported by the fact that the
aeronautical experience requirements for the ATP certificate explicitly
enable crediting of SIC time, whereas the aeronautical experience
requirements for the private and commercial certificates and instrument
rating do not explicitly reference SIC flight time. Therefore, the FAA
proposes adding Sec. 61.51(f)(4)(i) to explicitly state that SIC time
logged under paragraph (f)(4) may not be used to meet the aeronautical
experience requirements for the private or commercial pilot
certificates or an instrument rating.
The FAA notes that ICAO standards do not recognize the crediting of
flight time when a pilot is not required by the aircraft certification
or the operating rules under which the flight is being conducted.
Accordingly, all pilots who log flight time under this provision and
apply for an ATP certificate would have
[[Page 41198]]
a limitation on the certificate indicating that the pilot does not meet
the PIC aeronautical experience requirements of ICAO. For this reason,
the FAA proposes to add Sec. 61.51(f)(4)(ii) to clearly delineate that
an applicant for an ATP certificate who logs SIC time under Sec.
61.51(f)(4) is issued an ATP certificate with the limitation, ``Holder
does not meet the pilot in command aeronautical experience requirements
of ICAO,'' as prescribed under Article 39 of the Convention on
International Civil Aviation if the applicant does not meet the ICAO
requirements contained in Annex 1 ``Personnel Licensing'' to the
Convention on International Civil Aviation. The FAA notes that an
applicant is entitled to an ATP certificate without the ICAO limitation
specified under this provision when the applicant presents satisfactory
evidence of having met the ICAO requirements and otherwise meets the
aeronautical experience requirements of Sec. 61.159.\14\
---------------------------------------------------------------------------
\14\ Section 61.159 specifies the aeronautical experience
requirement for obtaining an ATP certificate with an airplane
category and class rating.
---------------------------------------------------------------------------
Additionally, to streamline the proposed revisions to Sec.
61.51(f) with other pilots who apply for an ATP certificate with an
ICAO limitation, the FAA proposes to amend Sec. Sec. 61.159(e) \15\
and 61.161(d) \16\ to reference Sec. 61.51(f)(4). This proposed
revision to the aeronautical experience requirements of Sec. Sec.
61.159 and 61.161 would allow a pilot to credit SIC time logged under
PAO toward the total time for an ATP certificate.
---------------------------------------------------------------------------
\15\ Section 61.159(e) specifics the activities that
necessitates the limitation ``Holder does not meet the pilot in
command aeronautical experience requirements of ICAO'' on an ATP
certificate with an airplane category and class rating.
\16\ Section 61.161(d) specifics the activities that
necessitates the limitation ``Holder does not meet the pilot in
command aeronautical experience requirements of ICAO'' on an ATP
certificate with a rotorcraft category and helicopter class rating.
---------------------------------------------------------------------------
B. Recent Flight Experience (Sec. 61.57)
Section 61.57 contains recent flight experience requirements to
maintain privileges to act as PIC under certain scenarios, including
requirements to complete takeoffs and landings in order continue to act
as PIC of a flight that is carrying passengers.\17\ The FAA proposes to
add Sec. 61.57(e)(5) to codify an exception that, in certain
circumstances, would enable a person receiving flight training to act
as PIC, even if that person does not meet the recent flight experience
requirements for carrying passengers under Sec. 61.57(a) or (b).
Specifically, the FAA proposes that an otherwise qualified pilot could
act as PIC while receiving flight training given by an authorized
flight instructor only for the purpose of meeting recent flight
experience requirements, even if that person does not meet the
requirements of Sec. 61.57(a) or (b). This person must meet all other
requirements to act as PIC, except for the recent flight experience
requirements of Sec. 61.57(a) or (b), and the authorized instructor
and person receiving training must be the sole occupants of the
aircraft.
---------------------------------------------------------------------------
\17\ Section 61.57(a)(1) states that no person may act as PIC of
an aircraft carrying passengers or of an aircraft certificated for
more than one pilot flightcrew member unless that person has made at
least three takeoffs and three landings within the preceding 90
days. Moreover, Sec. 61.57(b)(1) specifies that no person may act
as PIC of an aircraft carrying passengers during the period
beginning one hour after sunset and ending one hour before sunrise,
unless within the preceding 90 days, that person has made at least
three takeoffs and three landings to a full stop during the period
beginning one hour after sunset and ending one hour before sunrise.
---------------------------------------------------------------------------
The FAA has published numerous legal interpretations indicating the
aforementioned operations are already permissible under existing
regulations, notwithstanding the prohibition on passenger-carrying
flights; however, upon reconsideration, the FAA has determined the
plain text of the regulations does not support the conclusions in these
interpretations. For example, in the FAA Legal Interpretation to Kris
Kortokrax, Mr. Kortokrax suggested that a flight instructor who has not
met the recent night takeoff and landing experience in Sec. 61.57(b)
should be able to accompany a pilot without being considered a
passenger.\18\ At that time, the FAA agreed and stated this training
may take place even though neither pilot has met the Sec. 61.57(b)
requirement. Similarly, in the FAA Legal Interpretation to Roger
Schaffner, Mr. Schaffner asked whether a flight instructor with an
expired medical could provide flight training to a certificated pilot,
even though the person receiving instruction did not comply with the
recent flight experience requirement of Sec. 61.57.\19\ The FAA
asserted that the person receiving the instruction could act as the PIC
if that person met all other requirements to act as PIC, other than the
recent flight experience requirements of Sec. 61.57(a) or (b).
---------------------------------------------------------------------------
\18\ The FAA addressed Mr. Kortokrax's concerns regarding night
takeoff and landing experience for a PIC. The scenario included a
pilot, who meets the rating and currency requirements except for
Sec. 61.57(b), seeking to have an authorized instructor in the
aircraft when the pilot attempts to meet the requirements of Sec.
61.57(b). Legal Interpretation to Kris Kortokrax (Aug. 22, 2006).
\19\ Legal Interpretation to Roger Schaffner (May 5, 2014).
---------------------------------------------------------------------------
The FAA legal interpretations were based on the unsupported
conclusion that a flight instructor and a person receiving flight
training are not considered passengers to one another. In the FAA Legal
Interpretation to Kris Kortokrax, the FAA stated that an authorized
instructor providing flight training in an aircraft is not considered a
passenger with respect to the person receiving training, even where the
person receiving the flight training is acting as PIC. This conclusion
was based on the premise that the instructor is not a passenger because
the instructor is present specifically to train the person receiving
flight training, and the person receiving flight training is similarly
not a passenger with respect to the instructor. Likewise, the FAA Legal
Interpretation to Roger Schaffner stated that a flight instructor with
an expired medical certificate may instruct a person who is a private
pilot with a current medical certificate and flight review, even if
that person is not current to carry passengers per Sec. 61.57(a)
because the instructor is not considered a passenger when the
instructor is present specifically to train the person receiving
instruction.\20\ Although the FAA makes the regulatory distinction in
Sec. 61.47(c) that during a practical test, the applicant and the (14
CFR part 183) examiner are not subject to the requirements or
limitations for the carriage of passengers, the rule does not assert
that the persons are not passengers to one another. Instead, it
specifies that those persons are not subject to the limitations related
to carriage of passengers. No such regulatory provision exists to make
the same assertion regarding flight instructors and persons receiving
flight training. Therefore, the aforementioned legal interpretations
had no regulatory basis to assert that flight instructors and flight
students were not considered passengers to one another. This proposed
rule seeks to remedy the disparity between the aforementioned legal
interpretations and current regulations by creating an exception to
Sec. 61.57(a) and (b) to enable the activities enumerated in the legal
interpretations. Importantly, the proposed rule will not change the
relationship between instructors and persons receiving flight training.
The proposed rule does not assert that these persons are not passengers
to one another. Instead, the proposal clarifies when these operations
can be accomplished. Specifically, the FAA is proposing to codify the
privileges described in the Kortokrax and Schaffner interpretations.
Under the proposed rule, and consistent with the aforementioned legal
interpretations,
[[Page 41199]]
the FAA contemplates a scenario whereby neither the flight instructor
nor the person receiving instruction has met the recent flight
experience requirements of Sec. 61.57(a) or (b). In this scenario, the
person receiving instruction, if otherwise qualified, \21\ would be
permitted to act as the PIC and would not be subject to the
requirements of Sec. 61.57(a) or (b) to act as PIC.
---------------------------------------------------------------------------
\20\ Legal Interpretation to Roger Schaffner (May 5, 2014).
\21\ A flight instructor may not be able to act as PIC for other
reasons including a lack of medical qualification. Under Sec. Sec.
61.3(c)(2)(viii) and 61.23(b)(5), a flight instructor does not need
to hold a medical certificate while exercising the privileges of
flight instructor certificate if the flight instructor is not acting
as a required flightcrew member. To act as PIC or as a required
flight crewmember, under Sec. 61.23(a)(3)(ii) and 61.23(c)(1)(vi),
when exercising the privileges of a flight instructor certificate, a
flight instructor must possess at least a third-class medical
certificate, or a U.S. driver's license if the flight is conducted
under the conditions and limitations set forth in Sec. 61.113(i).
---------------------------------------------------------------------------
To ensure safety, the FAA proposes to limit the types of operations
and persons who may be on board. The proposed exception is limited to
flight training to meet the recent flight experience requirement of
Sec. 61.57 (a) or (b), and no other persons may be on board the
aircraft. Additional aircraft occupants could cause distractions, would
not necessarily possess the knowledge and skills to operate the
aircraft, and would not be in a position to act in the event of a
problem; therefore, any additional persons would not enhance safety.
The FAA finds having a flight instructor on board promotes safety
because a flight instructor is trained to monitor for pilot errors and
can provide input on technique and best practices during critical
phases of flight. The FAA continues to find, regardless of whether the
flight instructor can act as PIC, the flight instructor's experience,
knowledge, and risk management skills are valuable to the person
receiving instruction and increase safety, both while in flight and for
the public. In support of this proposal, the FAA emphasizes its
longstanding recognition that flight training is a valuable activity
and having a flight instructor onboard effectuates the FAA's goal of
promoting safety especially in a scenario where a pilot is
reestablishing privileges. Likewise, safety is enhanced because two
pilots, one of whom is an authorized instructor, who are otherwise
qualified to operate the aircraft are onboard and are available to act
in the event of a problem. In accordance with Sec. 61.23(a)(3)(ii),
(b)(5), and (c)(1)(vi), a flight instructor who does not meet medical
or driver's license requirements, as applicable, cannot act as PIC. In
all cases, the person acting as PIC must meet all applicable medical or
driver's license requirements to act as PIC.\22\ The proposed rule does
not change these requirements to act as PIC.
---------------------------------------------------------------------------
\22\ Section 61.23(a)(3)(ii) requires that a person must hold at
least a third-class medical certificate when exercising the
privileges of a flight instructor and acting as PIC or as a required
flight crewmember. Section 61.23(b)(5) states that a person is not
required to hold a medical certificate when exercising the
privileges of a flight instructor certificate if the person is not
acting as PIC or serving as a required flight crewmember. Section
61.23(c)(1)(vi) requires a person hold either a medical certificate
issued under part 67 or a U.S. driver's license when exercising the
privileges of a flight instructor certificate and acting as PIC or
as a required flight crewmember if the flight is conducted under the
conditions and limitations set forth in Sec. 61.113(i).
---------------------------------------------------------------------------
The FAA notes that the proposed rule would not codify the position
in certain legal interpretations that were an outgrowth of the
Kortokrax and Schaffner interpretations. In FAA Legal Interpretation to
John Olshock,\23\ the FAA concluded that it would be permissible for a
properly rated and current instructor (except for Sec. 61.57(b)), and
a student pilot (who is not yet rated in the aircraft but receiving
training) to be on board an airplane together during night hours
because neither was considered to be a passenger to the other. The
proposed rule would not codify the conclusion made in Olshock that a
flight instructor need not comply with Sec. 61.57(a) or (b) when
conducting flight training with someone receiving training who is not
qualified to act as PIC or a person holding only a student pilot
certificate. There is no adequate safety justification to continue to
enable this activity.
---------------------------------------------------------------------------
\23\ Legal Interpretation to John Olshock (May 4, 2007).
---------------------------------------------------------------------------
In the proposed rule, the safety justification is supported by the
fact that there are two certificated and otherwise qualified pilots who
could each provide knowledge and skills appropriate to the operation of
the aircraft. Not only is there a qualified flight instructor on board
with the additional training and aeronautical skills necessary to
become an authorized instructor, but the second pilot has also
demonstrated PIC proficiency in the aircraft to an FAA examiner. Each
of these pilots has the necessary skillset to operate the aircraft.
Similar to the legal interpretations related to Sec. 61.57
exceptions for flight instructors, the FAA published interpretations
that speak to the student/instructor relationship for the purpose of
enabling certain operations for flight instructors who do not hold an
FAA medical certificate.\24\ The FAA amended Sec. 61.23 in April 1997
to clarify when a flight instructor must hold a medical certificate or
driver's license, as applicable. Because Sec. 61.23 was already
amended and the proposed addition to Sec. 61.57(e) provides a
regulatory exception to Sec. 61.57(a) and (b) for persons receiving
flight training in certain circumstances, the FAA proposes to rescind
the Legal Interpretation to Kris Kortokrax, Legal Interpretation to
John Olshock, Legal Interpretation to Roger Schaffner, and Legal
Interpretation to E.V. Fretwell 30 days after the publication of this
NPRM. These legal interpretations are not supported by current FAA
regulations and with the publication of the proposed final rule, would
no longer be necessary to support the operations they intended to
clarify.
---------------------------------------------------------------------------
\24\ See Legal Interpretation to E.V. Fretwell (Sept. 18, 1995).
---------------------------------------------------------------------------
C. Flight Instructor Privileges (Sec. Sec. 61.193 and 61.413)
Sections 61.193 and 61.413 set forth the privileges of flight
instructors and sport pilot instructors, respectively. Under Sec. Sec.
61.193(a)(1) through (9) and 61.413(a)(1) through (9), an authorized
flight instructor may train and provide endorsements required for
certificates, ratings, operating privileges, recency of experience
requirements, and tests. The areas listed do not specifically address
elective and specialized training activities that the FAA encourages
but which are not required to meet FAA regulations. These activities
include, but are not limited to, transition training to a new make and
model for which a pilot is already rated but has never flown or lacks
familiarity, and conventional instrumentation to technically advanced
aircraft training.
The FAA proposes clarifying amendments to Sec. Sec. 61.193 and
61.413 to conform the regulations with current FAA policy and industry
practice. First, the FAA proposes to modify the introductory text of
Sec. Sec. 61.193(a) and 61.413(a) to clarify that, within the limits
of their certificates, authorized flight instructors may conduct ground
and flight training, and certain checking events, in addition to
issuing endorsements. Second, the FAA proposes to add ``maintaining or
improving skills for certificated pilots'' to Sec. Sec. 61.193(a)(7)
and 61.413(a)(6) to clarify that flight instructors are authorized to
conduct certain specialized and elective training. Third, the FAA
proposes to add Sec. Sec. 61.193(c) and 61.413(c) to clarify that the
privileges afforded to authorized flight instructors under these
provisions do not permit operations that would require an air carrier
or operating
[[Page 41200]]
certificate or specific authorization from the Administrator.
Under the current text of Sec. Sec. 61.193 and 61.413, an
authorized flight instructor may conduct training related only to
endorsing a person for certificates, ratings, operating privileges,
recency of experience requirements, and tests. First, this proposal
amends the introductory text in paragraphs of Sec. Sec. 61.193(a) and
61.413(a) to clarify that an authorized flight instructor may provide
training and certain checking events even when the training is not
conducted in furtherance of issuing an endorsement required by FAA
regulation. The FAA notes that current Sec. Sec. 61.193(a) and
61.413(a), and their corresponding reliance on endorsements listed in
Sec. Sec. 61.193(a)(1) through (9) and 61.413(a)(1) through (9),
excludes an express reference to elective and specialized training
activities that are elsewhere encouraged.
For example, although the FAA encourages specialized elective pilot
training under Advisory Circular 90-109,\25\ current Sec. 61.193 does
not explicitly list these types of flight training activities in the
flight instructor privileges. Similarly, while the FAA flight
instructor handbooks promote specialized elective training, such as
transition training and upset recovery training, Sec. Sec. 61.193 and
61.413 do not list this type of activity as flight instructor
privileges. These examples illustrate that amending Sec. Sec. 61.193
and 61.413 is necessary to align the regulatory text with current
policy and industry practice and encourage flight training activities
in the interest of public safety.
---------------------------------------------------------------------------
\25\ Advisory Circular 90-109A, Transition to Unfamiliar
Aircraft (Jun. 29, 2015).
---------------------------------------------------------------------------
The proposed modification to Sec. Sec. 61.193(a) and 61.413(a)
also clarifies that flight instructor privileges include certain
checking events, when the instructor is appropriately authorized. This
may include instrument proficiency checks (IPC), night vision goggle
proficiency checks (NVG), sport pilot proficiency checks, and part 141
checks. To date, these functions have been an implicit privilege for
flight instructors. This proposed modification to Sec. Sec. 61.193(a)
and 61.413(a) makes these privileges explicit.
Next, the FAA proposes to modify Sec. Sec. 61.193(a)(7) and
61.413(a)(6) to clarify that an authorized instructor may conduct pilot
training related to maintaining or improving skills for certificated
pilots, consistent with FAA publications and current industry practice.
For example, the aforementioned Advisory Circular 90-109 provides
recommendations to pilots transitioning to an unfamiliar aircraft,
which includes training with a flight instructor. Additionally,
Advisory Circular 61-98, recommends recurrent training to maintain
proficiency. For instances, Advisory Circular 61-98, states that
``recurrent training, including a flight to a towered airport with an
experienced flight instructor, is a good way to gain proficiency with
airport operations and to develop the required skills to avoid runway
incursions.'' \26\ The proposed modification to Sec. Sec. 61.193(a)(7)
and 61.413(a)(6) refers to training that advances a pilot's preexisting
flying knowledge or skills. Pilots may undergo this type of training to
increase their proficiency in areas that may not require specific
endorsements. Thus, the training contemplated under proposed Sec. Sec.
61.193(a)(7) and 61.413(a)(6) may include transition training to
operate a new aircraft of the same category and class, aerobatic
training, formation training, and mountain flying. While none of these
skills require an endorsement, this training is highly beneficial and
increases safety for already certificated pilots who intend to perform
these types of operations. The proposed training does not contemplate
learning basic flying skills, as in the case of a student pilot.
Instead, the proposed training includes only training for pilots to
maintain or advance preexisting skills, not the initial inception or
development of pilot knowledge.\27\
---------------------------------------------------------------------------
\26\ Advisory Circular 61-98D, Currency Requirements and
Guidance for the Flight Review and Instrument Proficiency Check,
paragraph 2.3.6.1 (Apr. 30, 2018).
\27\ For example, this training would not include aerobatic
flights offered to non-pilots.
---------------------------------------------------------------------------
The FAA finds that having an authorized instructor present in the
aircraft during specialized and elective training events, and in other
scenarios not undertaken in furtherance of meeting a specific
regulatory requirement, promotes safety. Flight training, regardless of
whether it is necessary to meet a regulatory requirement, improves
pilot skills and abilities. As noted, it has been longstanding industry
practice, and the proposed regulation merely clarifies that such
training is an appropriate exercise of a flight instructor's
privileges.
Section 61.1 defines flight training as training received from an
authorized instructor. This section generally defines an authorized
instructor as a person who holds a flight instructor certificate and
who is conducting training in accordance with the privileges and
limitations of the flight instructor's certificate. As previously
described, the privileges enumerated in Sec. 61.193 do not currently
list training related to maintaining or improving skills for
certificated pilots; therefore, this time would not be considered
flight training under the express text of the regulation.\28\ The
proposed modification to this rule would legitimize this time and
enable authorized flight instructors to log this time as flight
training. In addition, permitting authorized flight instructors to log
their flight time during these operations promotes training and
incentivizes instructors to engage in this activity.
---------------------------------------------------------------------------
\28\ Under Sec. 61.51(e)(3), an authorized instructor may log
PIC time for all flight time ``while serving as the authorized
instructor'' in an operation if the instructor is rated to act as
pilot in command of that aircraft.
---------------------------------------------------------------------------
If these amendments are finalized as proposed, the FAA proposes to
rescind the Mostofizadeh legal interpretation.\29\ In pertinent part,
this interpretation found that certificated flight instructors
providing flight training during formation flights were not acting as
authorized instructors.\30\ The interpretation concluded that the
definition of ``instruction'' from Sec. 61.193 only included training
activities conducted to satisfy a pilot's certificates, ratings,
operating privileges, recency of experience requirements, and testing.
The FAA recognizes that the interpretation, although consistent with
the current regulations, would be inconsistent with this proposal if
finalized. As such, the FAA will rescind the interpretation if it
finalizes this rule.
---------------------------------------------------------------------------
\29\ Legal Interpretation to Djavad Mostofizadeh (Apr. 19,
2013).
\30\ Section 61.1 defines ``authorized instructor,'' in relevant
part, as a person who holds a valid flight instructor certificate
when conducting ground training or flight training ``in accordance
with the privileges and limitations'' of their flight instructor
certificate. Those privileges are set forth in Sec. 61.193(a).
---------------------------------------------------------------------------
The FAA's third proposal would add new Sec. Sec. 61.193(c) and
61.413(c) to clarify that no privileges beyond bona fide ground and
flight training, and certain authorized checking events, are
contemplated within flight instructor privileges. Specifically, the
proposed paragraphs would clarify that an authorized flight instructor
cannot utilize the privileges afforded under Sec. Sec. 61.193(a) and
61.413(a) to conduct any operation that would otherwise require an air
carrier certificate, operating certificate, or specific authorization
from the Administrator.
For example, an instructor is not authorized under this section to
solely provide transportation or conduct commercial air tours or
otherwise engage in transportation under the guise
[[Page 41201]]
of flight training.\31\ Likewise, offering introductory or
``orientation'' flights to non-pilots that maintain no intention of, or
interest in, obtaining pilot credentials would likely not fall within
the purview of a flight instructor's privileges, but would likely be
considered to be air tours.\32\ As specified in proposed Sec. Sec.
61.193(c) and 61.413(c), an authorized instructor may not engage in
commercial operations that would otherwise require an air carrier
certificate, operating certificate, or a specific authorization from
the Administrator, under the auspices of flight training. Misuse of
Sec. Sec. 61.193 and 61.413 to provide commercial air tours, is not
permitted.
---------------------------------------------------------------------------
\31\ See Legal Interpretation to Doug McQueen, p. 3 (Apr. 16,
2013).
\32\ See Legal Interpretation to William Grannis (Aug. 3, 2017)
(explaining that ``flight training'' contemplates that ``purpose of
the flight must be student instruction''); see also Legal
Interpretation to Doug McQueen, p. 3 (Apr. 16, 2013) (explaining
that ``a flight conducted for compensation or hire . . . where a
purpose of the flight is sightseeing'' is a ``commercial air
tour''); and Legal Interpretation to Michael Mason (Oct. 3, 2012)
(quoting 2007 Final Rule for proposition that ``sightseeing is not
always a purpose of the barnstorming or vintage aircraft flight
[but] the FAA considers the overall character of the flight to be
sightseeing, even if a primary purpose may be the experience of
flight in an historic aircraft'') (internal brackets and citation
omitted).
---------------------------------------------------------------------------
When ascertaining whether an operation is considered flight
training, the FAA may examine the primary purpose of the flight and
whether the person being carried for compensation or hire is interested
in flight training.\33\ Flights for compensation or hire that would
likely not be construed as flight training include a one-time aerobatic
or barnstorming flight for a person who holds no pilot credentials or
an individual ``fulfilling a one-time bucket list item.'' \34\ In these
scenarios, the person has no intention of obtaining flight training,
but rather is on board for the experience of the flight itself.
Operations of this nature would not fall under the Sec. 119.1(e)(1)
``student instruction'' exclusion and would continue to require an air
carrier or commercial operator certificate issued in accordance with
part 119 or a specific authorization from the Administrator, such as a
commercial air tour letter of authorization. Conversely, persons who
may be interested in pursuing flight training will necessarily have a
first introductory flight with an authorized instructor where basic
flying skills are introduced. This type of introductory flight,
conducted for educational purposes, would be considered flight
training.
---------------------------------------------------------------------------
\33\ Legal Interpretation to Michael Mason (Oct. 3, 2012)
(explaining that FAA may consider several factors when determining
whether a flight is conducted for flight training).
\34\ See Legal Interpretation to William Grannis (Aug. 3, 2017)
(explaining that because ``persons being carried for compensation or
hire are not interested in flight training . . . [i]t is therefore
unlikely that the purpose of these flights would be student
instruction'').
---------------------------------------------------------------------------
The FAA also notes that, aside from permitting an authorized flight
instructor to conduct certain checking events and training related to
maintaining or improving skills for certificated pilots, the
requirements in Sec. Sec. 61.193 and 61.413 remain unchanged. For
example, the list of endorsements an authorized instructor may issue
remains unchanged under both affected sections. In this regard, the
proposed amendments do not change the requirement that an instructor
must be authorized in accordance with the definitions provided in Sec.
61.1(b) to conduct flight training.
Authorized flight instructors that conduct training and checking
events under this proposed amendment may begin documenting and
recording their flight time to prepare if this proposal becomes final.
The FAA notes that many instructors have historically logged this time,
despite the fact that the regulatory language did not explicitly enable
it. If the proposals related to flight instructors are adopted in a
final rule, the FAA will permit instructors to credit their prior
flight time consistent with this amendment retroactively. As a result,
the FAA encourages authorized instructors to begin documenting and
recording this time, if not already part of their standard practice, to
receive credit if this proposal is adopted.
While the FAA did not evaluate similar changes to Sec.
61.133(a)(2)(i)(E) and (ii)(D) for airship and balloon flight training,
the Administrator seeks public comment on the merits of making the same
change for commercial pilots with lighter-than-air category ratings who
provide flight training in the final rule, if adopted.
IV. Aircraft Holding Certain Special Airworthiness Certificates
A. Background: Emergency Cease and Desist Order, Litigation, and FAA
Notice
The restrictions on operating aircraft that hold special
airworthiness certificates carrying people for compensation or hire
recently came under review as a result of an emergency cease and desist
order issued to Warbird Adventures, Inc. by the FAA in 2020.\35\ In
that case, the operator maintained a publicly available website that
advertised opportunities to fly in a limited category aircraft at
upcoming airshows and allowed members of the public to book flights in
exchange for compensation. The operator brought a petition for review
of the emergency order before the court.\36\ The operator argued it was
conducting flight training for compensation in its limited category
aircraft, which it claimed is not a prohibited activity under Sec.
91.315.\37\ In response, the FAA argued 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.\38\
---------------------------------------------------------------------------
\35\ Emergency Cease and Desist Order Issued by the Federal
Aviation Administration (July 28, 2020).
\36\ Warbird Adventures, Inc. v. Fed. Aviation Admin., Petition
for Review from an Emergency Cease and Desist Order Issued by the
Federal Aviation Administration on July 28, 2020, Doc. No. 1854466
(D.C. Cir. 2020).
\37\ The FAA has not conceded that the flights being operated
were for the purpose of legitimate flight training.
\38\ Section 91.315 states, ``No person may operate a limited
category civil aircraft carrying persons or property for
compensation or hire.''
---------------------------------------------------------------------------
On April 2, 2021, the Court dismissed the petition for review of
the cease and desist order.\39\ Following the Court's dismissal,
several aviation industry groups sought clarification from the FAA on
how the decision affected flight training in experimental aircraft,
since the prohibitory language of Sec. 91.315 for limited category
aircraft is the same as that in Sec. 91.319 for experimental aircraft.
In particular, industry advocates sought clarification on whether the
owner of an experimental aircraft who receives and pays for flight
training in that aircraft is operating the aircraft carrying a person
for compensation or hire. Similarly, industry advocates asked whether
the flight instructor also was operating the aircraft in violation of
the prohibition in Sec. 91.319. Industry noted that FAA guidance at
that time allowed an experimental aircraft to be used in such a way
without running afoul of the requirement to obtain a LODA to conduct
flight training.\40\
---------------------------------------------------------------------------
\39\ The Court stated: ``A flight student is a ``person.'' Id.
Sec. 91.315; see also id. Sec. 1.1. When a student is learning to
fly in an airplane, the student is ``carr[ied].'' Id. Sec. 91.315.
And when the student is paying for the instruction, the student is
being carried ``for compensation.'' Id.'' Warbird Adventures, Inc.
v. Fed. Aviation Admin., 843 F. App'x 331 (D.C. Cir. 2021).
\40\ The guidance (FAA Order 8900.1, Vol. 3, Chpt. 11, sec. 1,
para. 3-292) stated 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 stated 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 accordance with a LODA issued under Sec.
91.319(h).
---------------------------------------------------------------------------
[[Page 41202]]
In response, the FAA published a Notification of Policy in the
Federal Register laying out its position that, when compensation is
provided for flight training, it is contrary to the prohibition on
operating an aircraft carrying a person for compensation or hire even
when no compensation is provided for the use of the aircraft.\41\ The
FAA announced that it would rescind the agency guidance that conflicted
with the plain meaning of the regulation and noted it would consider a
future rulemaking to remove obstacles to flight training for owners of
aircraft with certain special airworthiness certificates while
maintaining prohibitions on broadly offering these aircraft for flight
training to the public. This NPRM proposes those changes.
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\41\ Notification of Policy for Flight Training in Certain
Aircraft, 86 FR 36493 (Jul. 12, 2021).
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In addressing the flight training concerns, the FAA has also found
conflicts between the general prohibitions in Sec. Sec. 91.315,
91.319, and 91.325 (applicable to limited category, experimental and
primary category aircraft respectively) and operating limitations
placed on these aircraft during the aircraft certification process,
legal interpretations, and guidance related to carriage of persons or
property aboard these aircraft during operations involving compensation
or hire. Terms within these regulations are either broadly defined
(e.g., operate, person) or have been broadly interpreted over time
(e.g., compensation), resulting in obstacles to certain flight training
that the FAA did not intend.
For example, since the FAA considers a flight instructor to be
operating an aircraft carrying a person for compensation or hire (even
when the compensation is paid only for the flight training), then any
pilot who receives compensation for piloting a limited category,
experimental, or primary category aircraft would be in violation of the
rule when operating an aircraft for compensation with another person is
on board.\42\ The FAA did not intend to prohibit a pilot's receipt of
compensation for operations which may incidentally carry persons in
aircraft with certain special airworthiness certificates. In fact, as
discussed later in this section, the FAA finds that some operations of
these aircraft necessarily involve carrying people when compensation is
provided to the operator or flightcrew.
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\42\ The FAA notes that, while it may seem inappropriate to
apply the word ``operate'' to required flightcrew in this scenario,
other part 91 regulations that use the word ``operate'' are clearly
intended to apply to both the owner of an aircraft and the required
flightcrew. For example, it would create an absurd result to suggest
that Sec. 91.111(a), which states ``no person may operate an
aircraft so close to another aircraft as to create a collision
hazard,'' should not be applied to the flightcrew. It would result
in confusion if the regulated community cannot rely on a consistent
application of the term ``operate'' throughout part 91.
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The following discussion provides further explanation of the
obstacles created by the current regulatory language. With respect to
an aircraft, the word ``operate'' is broadly defined in Sec. 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).'' While the term ``operate''
may refer to the person piloting an aircraft, it also extends to
aircraft owners who use an aircraft without piloting it, to owners who
authorize someone else to use the aircraft, and to the persons that the
owner authorizes to use the aircraft. Under the regulatory definition,
an aircraft may be operated by more than one person for purposes of
part 91 regulations.\43\
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\43\ For example, Sec. 91.7(a) prohibits any person from
operating a civil aircraft unless it is in an airworthy condition. A
violation of this regulation would likely involve the pilot in
command who is responsible for determining whether that aircraft is
in condition for safe flight under Sec. 91.7(b), but it may also
involve the owner of the aircraft if the owner is shown to have
authorized the use of the aircraft in an unsafe condition.
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Likewise, the phrase ``operate carrying persons or property for
compensation or hire'' has been viewed to mean that the receipt of
compensation is in exchange for the carriage of persons or property
rather than that there is receipt of compensation for operating while
carrying persons or property. Importantly, ``carriage'' does not
necessarily mean transportation from place to place nor does it speak
to the reason a person is being carried. Any person on board an
aircraft with another is considered to be ``carried.'' \44\ Therefore,
the regulations could be interpreted to mean that no person may receive
compensation for an operation which carries persons or property,
regardless of the nature of the operation or whether compensation is
provided for some service other than the carriage of persons.
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\44\ There are a number of operations permitted under part 91
operating rules that involve the carriage of persons that are not
point-to-point transportation.
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Furthermore, the FAA has consistently construed ``compensation''
broadly.\45\ Given this broad definition, there are a number of
scenarios where operations may be precluded that the FAA did not intend
to foreclose. For instance, flights involving an aircraft manufacturer
carrying prospective customers in an aircraft with an experimental
special airworthiness certificate utilizing the experimental market
survey purpose or a flight instructor providing customer crew training
under this purpose could be in violation if the pilot or instructor,
respectively, is being compensated. \46\
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\45\ See Legal Interpretation to Joseph Kirwan (May 27, 2005).
Compensation ``does not require a profit, a profit motive, or the
actual payment of funds.'' Rather, compensation is the receipt of
anything of value. See also Legal Interpretation to John W.
Harrington (Oct. 23, 1997); Blakey v. Murray, NTSB Order No. EA-5061
(Oct. 28, 2003). The FAA has previously found that reimbursement of
expenses (fuel, oil, transportation, lodging, meals, etc.),
accumulation of flight time, and goodwill in the form of expected
future economic benefit could be considered compensation.
\46\ See Sec. 21.191(f), which describes the market survey
purpose as, ``Use of aircraft for purposes of conducting market
surveys, sales demonstrations, and customer crew training only as
provided in Sec. 21.195.''
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With this proposed rule, the FAA seeks to narrow and more clearly
define the types of operations that are precluded in aircraft holding
certain special airworthiness certificates. Therefore, the FAA is
proposing changes to clarify how these aircraft may be operated.
Should the modifications to the part 91 regulations proposed by
this rule become final, the FAA will rescind certain legal
interpretations related to the carriage of persons or property for
compensation or hire in limited category, experimental, and primary
category aircraft (i.e., Legal Interpretation to Bob Shaw (Feb. 4,
2008), Legal Interpretation to Joy Ratini (Apr. 30, 2014), Legal
Interpretation to Gregory Morris (Oct. 7, 2014), and Legal
Interpretation to E.J. Sinclair (Jul. 22, 2015)). The purpose of those
affected legal interpretations was to explain the circumstances under
which persons or property could be carried for compensation or hire
under Sec. Sec. 91.315, 91.319, and 91.325. However, the modifications
proposed by this rule would implement a new regulatory structure which
would replace the explanations provided by the legal interpretations.
B. Part 91 Regulations Governing the Operation of Aircraft With Certain
Special Airworthiness Certificates (Sec. Sec. 91.315, 91.319, 91.325,
and 91.327)
The FAA proposes to amend the part 91 regulations governing the
operation of limited category, experimental, and primary category
aircraft to reflect two modifications. First, the FAA proposes to
modify Sec. Sec. 91.315, 91.319(a)(2), and
[[Page 41203]]
91.325(a) (applicable to limited category, experimental, and primary
category aircraft, respectively) to change the existing language from a
general prohibition on carrying persons or property for compensation or
hire to more specifically identify the commercial operations that may
not be conducted in these aircraft if persons or property are carried
on board. These operations would include air carrier or commercial
operations \47\ as well as other commercial operations in which persons
or property are carried. Specifically, except as provided in proposed
Sec. 91.326 (discussed more fully later in the preamble), the proposed
amendments would prohibit conducting operations which: (1) require an
air carrier or commercial operator certificate issued under part 119;
(2) are listed in Sec. 119.1(e); (3) require management specifications
for a fractional ownership program issued in accordance with subpart K
of part 91; or (4) are conducted under parts 129, 133, or 137. The
proposed modifications are intended to narrow the prohibition on the
carriage of persons or property for compensation or hire and to clarify
the FAA's intent, which is to prohibit the operation of aircraft
holding certain special airworthiness certificates as air carriers,
commercial operators, or otherwise carrying persons or property for
hire in a manner that would require authorization from the
Administrator, such as an air carrier or a commercial air tour. These
aircraft are purpose-built for specific operations and do not meet the
same rigorous design, build, and maintenance standards as aircraft that
are eligible for use in passenger and property carrying operations for
hire. Therefore, aircraft holding certain special airworthiness
certificates require additional restrictions on operations for
compensation or hire.
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\47\ Section 1.1 defines ``Air carrier'' as a person who
undertakes directly by lease, or other arrangement, to engage in air
transportation. Section 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, other than as an
air carrier or foreign air carrier or under the authority of part
375 of this title. 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
itself, a major enterprise for profit.
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Second, in proposed Sec. 91.326(a), the FAA proposes to codify the
2023 NDAA provision to allow certain flight training, checking, and
testing in experimental aircraft without a LODA and apply this
allowance to limited and primary category aircraft and establish a
consistent LODA framework for limited category and experimental
aircraft in Sec. 91.326(b).
Section 91.326(a) would establish the conditions under which a
person may operate these aircraft to accomplish training, checking, and
testing without the need to obtain a LODA from the FAA. For those
operations that cannot meet the conditions for operating without a
LODA, Sec. 91.326(b) would codify a consistent framework for
requesting a LODA to conduct flight training, checking, and testing in
limited category and experimental aircraft similar to the allowance
currently reflected in Sec. 91.319(h) for experimental aircraft. The
FAA also proposes corresponding amendments to the general prohibitions
in Sec. Sec. 91.315, 91.319(a)(2), and 91.325(a) to reflect the
exception in newly proposed Sec. 91.326. Section 91.326 is discussed
more fully later in this preamble.
1. Prohibited Commercial Operations
The FAA proposes to identify part 119 and other regulatory parts
pertaining to specific commercial operations to clearly delineate the
operations involving the carriage of persons and property for
compensation and hire that are prohibited in aircraft holding certain
special airworthiness certificates. This proposal balances the
additional safety benefits afforded by Sec. 91.326 for flight
training, checking, and testing with the public expectation and safety
mitigations necessary for operations involving aircraft holding certain
special airworthiness certificates. Where there is receipt of
compensation for transportation, the public expects, and the FAA
demands, a higher level of safety.\48\
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\48\ See Advisory Circular No. 61-142, Sharing Aircraft
Operating Expenses in Accordance with 14 CFR 61.113(c), (2020).
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Importantly, transportation does not necessarily mean ``from place
to place,'' as evidenced by numerous interpretations and guidance
referencing ``common carriage,'' whereby the FAA has qualified two of
the four tenets of common carriage as ``(2) to transport persons or
property (3) from place to place.'' \49\ The FAA notes that, from a
regulatory standpoint, transportation can simply mean conveyance for a
purpose, such as a non-stop commercial air tour that takes off and
lands at the same airport or carriage of an aerial photographer. Each
of these examples represents an operation where a person has paid to be
carried in an aircraft and which is precluded under the text of the
current rule and would continue to be precluded under the proposed
rule. Operations where people are carried in an aircraft, but are not
paying for that conveyance, are discussed in greater detail later in
this section.
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\49\ See Advisory Circular No. 61-142, Sharing Aircraft
Operating Expenses in Accordance with 14 CFR 61.113(c), (2020).
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Part 119 contains basic requirements that apply to each person that
operates or intends to operate a civil aircraft as an air carrier or
commercial operator, or both, in air commerce. This part specifies the
types of operations that the FAA has determined require greater
oversight, maintenance, training, and operational requirements to
ensure public safety when carrying persons or property for compensation
or hire. Depending on the type of operation and aircraft used, an air
carrier or commercial operator conducts these operations under the
operating rules in either part 121 or part 135.
Part 119 likewise excepts certain commercial operations from
certification under that part. Carriage of persons or property for
compensation or hire during these excepted operations will continue to
be prohibited in aircraft holding certain special airworthiness
certificates under the proposed modifications to the rules. Section
119.1(e) enumerates various types of commercial operations that may be
conducted without an air carrier or commercial operator certificate.
For example, Sec. 119.1(e)(2) refers to nonstop commercial air tours,
Sec. 119.1(e)(4) lists various forms of aerial work operations, and
Sec. 119.1(e)(6) refers to intentional parachute drop operations.
These types of commercial operations are conducted under the general
operating rules in part 91. In addition to these commercial operations
that may be conducted under part 91, subpart K of part 91 allows for
carriage of persons or property in fractional ownership programs
without part 119 certification. Other parts, such as parts 129, 133,
and 137, specify regulations related to other highly-specific
commercial operations that require additional oversight by the FAA but
do not require part 119 certification.
Each of these parts, as they relate to carriage of persons or
property for compensation or hire, contain operating rules intended to
ensure the safety of those being carried, as well as the non-
participating public on the ground. The restrictions on using aircraft
with special airworthiness certificates to conduct these operations are
based on a safety continuum,\50\ which assigns
[[Page 41204]]
aircraft privileges based on the corresponding level of design, build,
maintenance, and operational requirements. Aircraft that are built
specifically for the purpose of carrying persons or property for
compensation or hire are required to meet higher design and build
standards, such as those required by 14 CFR parts 23, 25, 27, and 29
and appear at the highest levels of the safety continuum. These
aircraft may be used for compensation or hire, and they are generally
not limited to specific areas of operation or special operating rules.
Aircraft used for unique commercial operations, such as part 133
rotorcraft external load operations and part 137 agricultural aircraft
operations are purpose-built and have operating limitations assigned to
perform those tasks safely. By contrast, aircraft holding limited
category, experimental, and primary category airworthiness certificates
were not built or certificated for the aforementioned purposes, nor
were they contemplated for use in those regulatory frameworks. As such,
these aircraft fall lower on the safety continuum than standard
category aircraft. Specifically, limited aircraft fall lower on the
continuum as they were built to a standard but retain special
airworthiness certification since they were designed for military uses.
Experimental aircraft are on the opposite end of the continuum from
standard category aircraft. Experimental aircraft have not necessarily
been found to meet airworthiness standards and are excepted from many
of the regulatory maintenance and inspection requirements of standard
category aircraft.<SUP>51</SUP> For these reasons, experimental
aircraft are assigned the most restrictive operating limitations.
Finally, primary category aircraft were built for personal and
recreational use. As such, aircraft holding special airworthiness
certificates continue to have associated regulations which limit
certain activities.
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\50\ Safety Continuum is described as the level of safety
established by regulation, guidance and oversight that changes based
on risk and societal expectations of safety. The safety continuum
applies an appropriate level of safety from small unmanned aircraft
systems to large transport category aircraft. The differing levels
of safety balance the needs of the flying public, applicants and
operators while facilitating both the advancement of safety and the
encouragement of technological innovation. <a href="https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/air/transformation/csp/concepts">https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/air/transformation/csp/concepts</a>.
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The intent of this proposal is to update regulatory language to
align the FAA's intent with the public's expectation for operations in
aircraft with certain special airworthiness certificates, while
ensuring no adverse effect on safety. To continue to ensure public
safety and more clearly identify those operations prohibited in
aircraft that hold certain special airworthiness certificates, the FAA
proposes to list in Sec. Sec. 91.315, 91.319, and 91.325, the specific
operations (i.e., operations that require a part 119 air carrier or
commercial operator certificate or are identified in Sec. 119.1(e),
operations that require management specifications under subpart K of
part 91, operations under part 129, part 133, and part 137) that are
prohibited in aircraft that hold certain special airworthiness
certificates. This more specific language would replace the broad
language in the current part 91 regulations that, as previously
discussed, forecloses operations that the FAA did not intend to
prohibit.
The FAA finds that listing out the specific operations that are
prohibited rather than relying on the broad language currently
reflected in Sec. Sec. 91.315, 91.319, and 91.325 would better advise
the regulated community on how to comply. Notably, part 119 did not
exist when the FAA introduced these special airworthiness categories
into its regulations. However, today part 119 is a widely used
regulatory part supported by legal interpretations, FAA advisory
circulars, and case law. The regulations and associated guidance will
more clearly inform the owners and operators of aircraft with special
airworthiness certificates that operations requiring part 119
certification as well as those commercial operations excepted from part
119 certification are not permitted in their aircraft when persons or
property are carried on board for compensation. For this reason, the
FAA does not believe that further discussion of the operations
requiring or excepted from part 119 certification is necessary in this
NPRM.
Permitting the listed operations in aircraft with certain special
airworthiness certificates is not in the interest of public safety.
These operations were not intended for aircraft holding certain special
airworthiness certificates in the original regulations when they were
developed, and they would continue to be excluded from these types of
operations under the proposed rules. The FAA finds that there are
sufficient aircraft that are appropriately certificated (e.g., standard
and restricted category) to conduct the types of commercial operations
previously described. The FAA understands the interest by owners and
operators of aircraft with special airworthiness certificates to
broaden their opportunities to receive compensation for the use of
their aircraft; however, there is simply no compelling reason to lower
the existing standard and expand the operating footprint for aircraft
that hold these special airworthiness certificates.
For these reasons, the FAA proposes to revise the regulatory
language of Sec. Sec. 91.315, 91.319(a)(2), and 91.325(a) to clarify
that, except for flight training, checking, and testing as specified in
Sec. 91.326, persons may not operate these aircraft carrying persons
or property for compensation or hire in operations that require an air
carrier or commercial operator certificate issued under part 119; are
listed in Sec. 119.1(e); require management specifications for a
fractional ownership program issued in accordance with subpart K of
part 91; or are conducted under parts 129, 133, or 137.
2. Limited Category Airworthiness Certificates (Sec. 91.315)
The limited category airworthiness certification was developed
shortly after World War II. This certification enabled the large number
of available military surplus aircraft to continue to be useful after
the war, but only for limited purposes.\52\ To be granted a limited
category airworthiness certificate, the aircraft's military records
could not disclose any characteristics which would render it unsafe
when operated as a civil aircraft in accordance with the limitations
and conditions prescribed by the Administrator.\53\ Additional
operating limitations were required for limited category aircraft to
account for the difference in certification requirements between
limited and standard category aircraft. These limitations included the
prohibition on carrying passengers and cargo for hire. Eventually, the
limited category regulatory language became even more restrictive to
prohibit the carriage of persons, not just passengers, for compensation
or hire.\54\
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\52\ Pilot Certificates, 14 CFR, 1946 Supp. 2132. Specifically,
the Civil Air Regulations (CAR) part 09 explained that the limited
category airworthiness classification was developed ``for the
purpose of making available to the public certain military surplus
aircraft which were originally designed for the military services of
the United States for combat and other specialized purposes and
which experience in military service has shown to be safe for
operation so long as the operation is confined to flights in which
neither passengers nor cargo are carried for hire.''
\53\ Pilot Certificates, 14 CFR 09.10(c), 1946 Supp. 2130.
\54\ While earlier versions of Sec. 91.315 only prohibited the
carriage of ``passengers'' for compensation or hire, the regulation
was subsequently amended to prohibit the carriage of any ``persons''
for compensation or hire. Compare Pilot Certificates, 14 CFR
09.10(c), 1946 Supp. 2130, note (confining use of limited category
aircraft to flights ``in which neither passengers nor cargo are
carried for hire'') with 54 FR 34284, 34309 (Aug. 18, 1989)
(prohibiting ``carrying persons or property for compensation or
hire'').
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The history of limited category airworthiness certificates
illustrates the
[[Page 41205]]
FAA's original intent of who may be carried in these aircraft. The FAA
finds that this history, in conjunction with current industry practice
and ensuring consistency with other special airworthiness certificated
aircraft, supports this proposal to modify the language in Sec. 91.315
to better articulate the types of operations permitted in these
aircraft. Overall, this proposed rule would increase the operational
privileges afforded to limited category aircraft by enabling, with
certain limitations, flight training, checking, and testing, as well as
modify the generally prohibitive language to be more specific with
regard to operations that cannot be conducted for compensation or hire
with persons or property on board. Therefore, the FAA is proposing to
amend Sec. 91.315 to clarify that, except as provided in Sec. 91.326
(discussed later in this section), persons may not operate these
aircraft carrying persons or property for compensation or hire in
operations which require an air carrier or commercial operator
certificate issued under part 119; are listed in Sec. 119.1(e);
require management specifications for a fractional ownership program
issued in accordance with subpart K of part 91; or are conducted under
parts 129, 133, or 137.
3. Experimental Airworthiness Certificates (Sec. 91.319)
a. Experimental Aircraft--General
Experimental aircraft do not meet the same design, build, and
maintenance requirements as aircraft that hold standard airworthiness
certificates. Experimental aircraft fall lower on the safety continuum
than limited and primary category aircraft, as they are not necessarily
built to any standard. For this reason, experimental aircraft are
assigned additional operating limitations in Sec. 91.319, to include
types of operations (Sec. 91.319(a)(1)) \55\ that may be conducted and
areas of operation (Sec. 91.319(c)) in which operations may take
place.\56\
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\55\ Section 91.319(a)(1) specifies that no person may operate
an aircraft that has an experimental certificate for other than the
purpose for which the certificate was issued.
\56\ Section 91.319(c) specifies that unless otherwise
authorized by the Administrator in special operating limitations, no
person may operate an aircraft that has an experimental certificate
over a densely populated area or in a congested airway. The
Administrator may issue special operating limitations for particular
aircraft to permit takeoffs and landings to be conducted over a
densely populated area or in a congested airway, in accordance with
terms and conditions specified in the authorization in the interest
of safety in air commerce.
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The FAA proposes to modify the broad language in Sec. 91.319(a)(2)
regarding the operation of these aircraft carrying persons or property
for compensation or hire to further clarify its intent. As previously
discussed, the plain language in the current regulatory text of Sec.
91.319(a)(2) results in an outcome that the FAA finds overly
restrictive. The current language results in the prohibition of
operations that the experimental purposes listed in Sec. 21.191 were
specifically designed to enable.\57\ For example, the experimental
purpose of research and development (R&D) in Sec. 21.191(a) was
designed to accommodate testing new aircraft design concepts, new
aircraft equipment, new aircraft installations, new aircraft operating
techniques, or new uses for aircraft. Often, aircraft manufacturers and
equipment or component manufacturers work in tandem during development
and testing to ensure safe system integration. This testing may require
experts from both manufacturers to participate in the test flights.
However, the plain language of Sec. 91.319(a)(2) would prohibit the
operator from carrying persons if the aircraft or system is being
developed for compensation \58\ because both the manufacturer and the
pilot could be construed to be operating while carrying persons or
property for compensation or hire. The exclusion of persons performing
an essential function that is directly related to the experimental
purpose unnecessarily places a burden on the operator to obtain an
exemption to complete this work and was not intended to fall under the
broad language of the regulation.
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\57\ See Sec. 21.191 Experimental Certificates for a list of
experimental purposes.
\58\ Compensation can come in many forms. For example, an
aircraft manufacturer might be compensated by way of a Department of
Defense contract to build aircraft for the military or to test
certain equipment.
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There are other experimental purposes where compensation may be a
result of the operation. For instance, the experimental crew training
purpose (Sec. 21.191(c)) is silent as to whether pilots (instructor or
trainee) are compensated during training. Likewise, the experimental
market survey purpose (Sec. 21.191(f)), developed specifically to
demonstrate the aircraft to persons who are in a position to make a
purchase decision in hopes of selling an aircraft or component
(expected future economic benefit), is also silent as to whether pilots
are compensated during such an operation.
The FAA finds there would be no adverse effect on safety from the
proposed modified language because experimental aircraft are assigned
additional operating limitations that mitigate risk. Experimental
aircraft are limited by Sec. 91.319(a)(1) in the types of operations
they may perform. Section 91.319(a)(1) specifies that persons are
prohibited from operating an experimental aircraft for other than the
purpose for which the certificate was issued.\59\ This means, for
example, that an experimental aircraft certificated for the purpose of
R&D can only be operated to perform those R&D tests identified at the
time of certification. R&D certificates have a maximum expiration date
of one year. This affords the FAA an opportunity to reevaluate the
validity of the proposed test. Likewise, an experimental aircraft
certificated for the purpose of crew training can only be operated to
train the applicant's flight crews. There is no experimental purpose
which would support the carriage of persons or property as a major
enterprise for profit.\60\
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\59\ See Sec. 21.191 Experimental Certificates for a complete
listing of all experimental purposes.
\60\ The Sec. 1.1 Commercial Operator definition explains that
``[w]here 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 itself, a major
enterprise for profit.''
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Furthermore, experimental aircraft are restricted by Sec.
91.319(c) from overflight of densely populated areas unless
specifically authorized by the Administrator. This prohibition
mitigates risk to non-participating public on the ground. In addition,
under Sec. 91.319(i), the Administrator may impose additional
operating limitations on experimental aircraft based on aircraft
characteristics and associated risks. These additional operating
limitations further mitigate risks associated with various hazards that
may be introduced in experimental aircraft. For these reasons, the FAA
sees no adverse effect on safety in the proposed modification of Sec.
91.319(a)(2) to more accurately reflect the prohibited operations
contemplated for experimental aircraft.
b. Experimental Light-Sport Aircraft (Sec. 91.319)
Section 91.319(e) contains specific limitations on the use of
certain experimental aircraft certificated under Sec.
21.191(i)(1).\61\ The FAA proposes to modify Sec. 91.319(e)(2) to
remove the date restriction on flight training in these aircraft and
direct readers to the flight training, checking, and testing in
proposed Sec. 91.326. Likewise, the FAA proposes to modify paragraph
(f),
[[Page 41206]]
regarding the leasing of aircraft issued an experimental certificate
under Sec. 21.191(i).
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\61\ Section 21.191(i)(1) covers light-sport aircraft that have
not been issued a U.S. or foreign airworthiness certificate and do
not meet the criteria for ``ultralight vehicles'' provided in Sec.
103.1.
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Before 2004, the FAA granted exemptions to permit two-seat
ultralight-like aircraft, which did not meet the part 103 requirements
of this chapter, to be used for compensation or hire for the purpose of
flight training.\62\ On July 27, 2004, the FAA issued a final rule
defining light-sport aircraft to include simple, small, lightweight,
low-performance aircraft. Additionally, in the 2004 final rule the FAA
created a new special airworthiness certificate in the light-sport
category for special light-sport aircraft (SLSA) in Sec. 21.190 and
added light-sport aircraft to the existing experimental special
airworthiness certificate for experimental light-sport aircraft (ELSA)
in Sec. 21.191(i).\63\
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\62\ By regulation, an ultralight vehicle must be used or
intended to be used for manned operation in the air by a single
occupant and may be used or intended to be used for recreation or
sport purposes only. 14 CFR 103.1(a), (b). Because two-place
aircraft do not meet this requirement, they cannot be operated as
ultralight vehicles under part 103.
\63\ 69 FR 44881 (Jul. 27, 2004). Under Sec. 21.191(i)(1), no
experimental certificates may be issued for these aircraft after
January 31, 2008.
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The 2004 final rule permitted instructors to conduct flight
training in these ELSA aircraft for compensation or hire until January
31, 2010, which diminished the need for the part 103 training
exemptions that allowed the operation of two-seat ultralight-like
aircraft that did not conform to part 103. As stated in the 2004 final
rule, a significant purpose of the rule was to certificate those two-
seat ultralight-like aircraft previously operated under part 103
training exemptions and those two-seat and single-seat unregistered
ultralight-like aircraft operating outside of the regulations.
Specifically, SLSA regulations include aircraft manufactured
according to an industry consensus standard rather than a type
certificate. ELSA regulations include provisions for: (1) a temporary
allowance for migration of two-seat ultralight-like aircraft that did
not conform to 14 CFR part 103 and were previously operated under part
103 training exemptions, (2) kit-built versions of SLSA aircraft, and
(3) aircraft previously issued a special airworthiness certificate in
the light-sport category under Sec. 21.190.
When publishing the 2004 final rule, the FAA anticipated that the
newly manufactured SLSA would replace the former two-seat ultralight-
like aircraft that did not conform to 14 CFR part 103 (newly
certificated as ELSA) such that flight training in ELSA would no longer
be necessary. The FAA, knowing that the manufacture of the new SLSA
aircraft would take time, created provisions in existing Sec. 91.319
to allow for an extension of the time period to permit the use of
properly registered aircraft with ELSA airworthiness certificates to be
used for flight training by the same owner until January 31, 2010.
After January 31, 2010, ELSA aircraft were no longer permitted to be
used for flight training for compensation or hire.
The FAA predicted that 60 months would be an adequate amount of
time for the new SLSA to enter service to replace the ELSA and meet
flight-training demands. The FAA also anticipated that 60 months would
provide the owners of the transitioning ELSA with additional time to
purchase SLSA to provide flight training under the new rule, thereby
delaying replacement costs. In addition, the FAA believed the action
would further expand the growth of the industry as a whole. However,
the new SLSA has not materialized in the way that was projected,
especially for two-seat aircraft used for light-sport and ultralight
training. Industry production of all aircraft slowed during the
projected period, resulting in lower acquisition costs of standard
category aircraft that could be operated as light-sport aircraft. This
caused the projected production of SLSA to no longer be considered
financially viable, in many cases.
Experimental light-sport aircraft are good training aircraft for
light-sport and ultralight vehicles because they may be low mass/high
drag aircraft that contain a second seat that may be occupied by an
authorized flight instructor. The use of ELSA as a training option for
light-sport aircraft and ultralights provides an avenue for structured
flight training from an FAA certificated flight instructor. The FAA
does not wish to impede individuals who want to take advantage of
flight training that is relevant to the type of aircraft they operate.
Additionally, the FAA recognizes the importance of availability of
training aircraft for new light-sport pilots and existing pilots who
are transitioning from a conventional aircraft to a low mass/high drag
aircraft. While two-seat, light-sport, low mass/high drag trainers with
SLSA airworthiness certificates can be found on the market for use in
flight training, they do not exist in numbers that provide for
widespread availability.
Given the aforementioned considerations and the delayed timeline
for availability of SLSA aircraft, the FAA undertook a new rulemaking
in 2014. On October 24, 2014, the FAA published a NPRM titled Removal
of the Date Restriction for Flight Training in Experimental Light Sport
Aircraft.\64\ To ensure these aircraft are used solely for the purpose
of flight training, and to better control and monitor the use of ELSA
for flight training, the FAA proposed to require a LODA for persons who
intended to conduct flight training for compensation or hire using
ELSA. The FAA proposed this change to allow for increased availability
of flight training in aircraft with similar characteristics to light-
sport aircraft and ultralights. As mentioned previously, the 2004 final
rule permitted training in ELSA for compensation or hire for the
purpose of flight training until January 31, 2010. The NPRM proposed to
remove the date restriction in Sec. 91.319(e)(2) and add language to
permit training in certain ELSA for compensation or hire through
existing deviation authority provided in Sec. 91.319(h) of this part.
---------------------------------------------------------------------------
\64\ 83 FR 53590 (Oct. 24, 2018).
---------------------------------------------------------------------------
For the reasons provided in the concurrently issued Withdrawal of
the Removal of the Date Restriction for Flight Training in Experimental
Light Sport Aircraft, the FAA is withdrawing the NPRM titled Removal of
the Date Restriction for Flight Training in Experimental Light Sport
Aircraft, and instead is developing this rule that resolves the
discrepancy more broadly for all experimental aircraft and better
serves the public interest.
This proposed rule will address the parameters of flight training
in experimental light-sport aircraft more comprehensively than the 2014
NPRM would have. This rule also proposes to create a consistent flight
training framework for limited category and experimental aircraft.
Therefore, flight training in ELSA is more appropriately incorporated
into this rulemaking.
The FAA is incorporating changes to Sec. 91.319(e) and (f) to
increase the availability of light-sport aircraft for training, and aid
individuals who wish to train in the type of aircraft they operate.
This rulemaking proposes to change Sec. Sec. 91.319(e)(2) and
91.319(f) to direct stakeholders to proposed Sec. 91.326, which
describes exceptions for flight training, checking, and testing. The
FAA recognizes that training in an ELSA is beneficial for pilots to
gain familiarity with the performance and handling qualities of other
light-sport aircraft and ultralights.
In addition, proposed Sec. 91.319(f)(2) would allow a person
receiving flight training to lease certain ELSA for the purpose of
accomplishing solo flight and practical test in accordance with a
training program included in the
[[Page 41207]]
deviation authority authorized in accordance with proposed Sec.
91.326(b). Currently, Sec. 91.319(f) prohibits the leasing of certain
ELSA, except to tow a glider or unpowered ultralight vehicle. If the
proposed rule becomes final, certain ELSA aircraft will be eligible to
operate for the purpose of flight training in accordance with proposed
Sec. 91.326. Removing the leasing restriction under certain
circumstances is necessary to meet the part 61 pilot certification
requirements of this chapter. Because of the unique characteristics of
these aircraft, the FAA has determined that training in accordance with
a Sec. 91.326(b) LODA, to include solo flight and practical tests
required for pilot certification, enhances safety. Solo flight and
practical tests may require leasing of the aircraft.
c. Miscellaneous Amendments
The FAA also proposes a few miscellaneous amendments to Sec.
91.319. First, the FAA proposes to modify Sec. 91.319(d)(3) to use
``air traffic control'' (ATC) in place of ``control tower.'' This
language is consistent with the other regulatory sections that
reference ``air traffic control'' instead of ``control tower.'' \65\
Although the current requirement for notification is limited to only
the control tower, if present, expanding the requirement to notify all
ATC facilities with which the pilot interacts during the course of a
flight, if any, increases safety by informing controllers of the
experimental nature of the aircraft. This information can help ATC to
understand there may be limitations associated with the aircraft. It
will remain the responsibility of the operator to comply with those
limitations, however notification to all ATC facilities will help
controllers maintain better awareness of the aircraft to which they are
providing service. If no ATC services are utilized, there is no
additional requirement for notification.
---------------------------------------------------------------------------
\65\ For example, see Sec. Sec. 65.45, 91.123, 105.13, and
170.13.
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The FAA also proposes to remove the current deviation authority in
Sec. 91.319(h). The proposed removal of paragraph (h) would provide
additional clarity to current LODA holders and potential LODA
applicants by maintaining one LODA framework under proposed Sec.
91.326(b). Current and potential LODA holders would be directed to
proposed Sec. 91.326(b) with the introductory language in Sec.
91.319(a). Additionally, proposed Sec. 91.326(c) would inform
currentSec. 91.319(h) LODA holders on the status of their LODAs if
this proposal is adopted as a final rule.
4. Primary Category Airworthiness Certificates (Sec. 91.325)
The primary category was created in 1992 to stimulate the
production of a new class of simpler personal use and recreational
aircraft.\66\ To achieve this intent, the primary category required a
simplified certification process though still requiring aircraft to be
built to a design standard. At that time, the FAA indicated that flight
training could be conducted in these aircraft.\67\ However, as
previously discussed, the broad language prohibiting operations
carrying persons or property for compensation or hire precludes a
flight instructor from receiving compensation while carrying a person
who is receiving flight training.
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\66\ 57 FR 41360 (Sept. 9, 1992).
\67\ 57 FR 41360 (Sept. 9, 1992).
---------------------------------------------------------------------------
For consistency with the limited category and experimental aircraft
operating limitations, the FAA proposes to modify the language in Sec.
91.325(a) and (b) and create new paragraph (c). First, the FAA proposes
to modify the language in Sec. 91.325(a) to clarify that persons may
not operate these aircraft carrying persons or property for
compensation or hire in operations that require an air carrier or
commercial operator certificate issued under part 119; are listed in
Sec. 119.1(e); require management specifications for a fractional
ownership program issued in accordance with subpart K of part 91; or
are conducted under parts 129, 133, or 137. Second, to align the
primary category regulatory language with the original intent at the
time of its inception, the FAA proposes to modify Sec. 91.325(b) and
add new (c) to enable primary category aircraft to be used for flight
training, checking, and testing without the need to obtain deviation
authority.
Consistent with the limitation in current Sec. 91.325(b), primary
category aircraft are divided into two groups, with different
privileges afforded to each, due to differences in maintenance
requirements. The first group consists of primary category aircraft
that are maintained by the pilot-owner under an approved special
inspection and maintenance program. The second group consists of
primary category aircraft that are maintained by part 65 certificated
mechanics or authorized repair stations.\68\
---------------------------------------------------------------------------
\68\ 14 CFR part 145.
---------------------------------------------------------------------------
Primary category aircraft that are maintained by FAA certificated
mechanics or authorized repair stations fall higher on the safety
continuum than those that are pilot-owner maintained. To determine the
precise position of primary category aircraft on the safety continuum,
and thereby determine the corresponding privileges, the FAA compares
the regulatory privileges and the design, build, and maintenance
requirements to those of light-sport aircraft (LSA).
LSA do not meet 14 CFR airworthiness standards. Instead, these
aircraft must be designed, built, and maintained in accordance with
industry consensus standards. In accordance with Sec. 91.327(b), LSAs
must be maintained by FAA certificated mechanics, authorized repairmen,
or authorized repair stations. Under Sec. 91.327(a)(2), operators of
LSA are authorized to conduct flight training without a requirement to
hold a LODA.\69\ The FAA proposes to grant similar regulatory
privileges to primary category aircraft with similar certification and
maintenance requirements. To that end, the FAA proposes granting
certain primary category aircraft privileges similar to those afforded
to LSAs.
---------------------------------------------------------------------------
\69\ Notably, as a miscellaneous amendment, the FAA is also
proposing to clarify in Sec. 91.327(a)(2) that checking and testing
are also permitted.
---------------------------------------------------------------------------
For these reasons, the FAA proposes to add Sec. 91.325(c) to
permit primary category aircraft maintained by FAA certificated
mechanics or authorized repair stations to be operated for compensation
or hire for the purposes of conducting flight training, checking, and
testing without deviation authority or an exemption.
Under proposed Sec. 91.325(c), primary category aircraft which are
maintained by an FAA certificated mechanic or repair station will be
enabled to be utilized for compensated flight training, checking, and
testing without restriction, even when those services are broadly
offered to the public. In the proposed modification to Sec. 91.325(b),
operators of primary category aircraft which are maintained by a pilot-
owner under an approved program who wish to receive flight training,
checking, or testing are directed to Sec. 91.326(a), which would
specify the circumstances under which persons may conduct those
operations. That pilot-owner is prohibited from receiving compensation,
except as provided in proposed Sec. 91.326(a). This prohibition
precludes operation under a LODA. However, these pilot-owners are not
precluded from exercising the privileges of proposed Sec. 91.326(a).
For these reasons, primary category aircraft would not be eligible to
receive a LODA.
The FAA proposes that previously issued exemptions from Sec.
91.325 for the purposes of flight training, checking, or
[[Page 41208]]
testing will not be renewed or extended if the proposed rule becomes
final.
5. Light-Sport Category Special Airworthiness Certificates (Sec.
91.327)
The FAA proposes modifying Sec. 91.327(a)(2) to update the
nomenclature for consistency with the other amendments proposed in this
rulemaking. Currently, Sec. 91.327(a)(2) authorizes flight training
for compensation or hire in a light-sport category aircraft. The FAA
proposes to add that a person may conduct checking and testing, in
addition to the explicit permission for flight training.\70\ These
activities have been implicit with the language authorizing ``flight
training,'' as flight instructors are authorized to conduct certain
checks, and testing is a demonstration of skills learned during
training. These activities do not pose any additional safety risk
beyond that associated with flight training. Further, the FAA finds
value in training and testing in the aircraft that will be regularly
operated. The FAA acknowledges that individuals may already utilize
Sec. 91.327(a)(2) to conduct checking and testing for compensation or
hire. Therefore, this modification merely codifies existing implicit
privileges. The FAA does not anticipate any substantive or practical
change from the proposed addition of checking and testing in Sec.
91.327(a)(2).
---------------------------------------------------------------------------
\70\ See Sec. 61.1 definition: ``Flight training means that
training, other than ground training, received from an authorized
instructor in flight in an aircraft.'' Flight checking and testing
are not flight training but rather are proficiency evaluations that
are in most instances administered by persons other than authorized
instructors; therefore, the FAA proposes to add these to explicitly
permit these activities.
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D. Flight Training, Checking, and Testing (Sec. 91.326(a))
As discussed, currently, Sec. Sec. 91.315, 91.319, and 91.325
prohibit operating limited category, experimental, and primary category
aircraft carrying persons or property for compensation or hire.
Consistent with the outcome of the Warbird litigation, these
regulations generally prohibit flight training, checking, and testing
when compensation is provided.
In July 2021, the FAA established a streamlined process that
allowed owners and flight instructors to apply for a LODA through an
expedited process and accomplish certain flight training in
experimental aircraft.\71\ Given the language in the regulations,
aircraft owners seeking to receive flight training in their own
personal-use experimental aircraft, and flight instructors providing
that training for compensation, applied for a LODA through the
aforementioned streamlined process.\72\
---------------------------------------------------------------------------
\71\ See Notification of Policy for Flight Training in Certain
Aircraft. This policy has been superseded by the 2023 NDAA.
\72\ 86 FR 96493 (Jul. 12, 2021).
---------------------------------------------------------------------------
However, as noted earlier, section 5604 of the 2023 NDAA contains a
provision that removes the LODA requirement for flight training,
testing, and checking in experimental aircraft under certain
conditions. Flight training, checking, and testing that is broadly
offered to the public, or that does not conform to the stipulations of
the 2023 NDAA will continue to require a LODA.
Therefore, the FAA proposes an exception in Sec. 91.326 to codify
the legislation for experimental aircraft and extend what is already
permissible for experimental aircraft by legislation, to other aircraft
that hold certain special airworthiness certificates. Proposed Sec.
91.326 would also more clearly outline who may receive and provide
flight training, checking, and testing without deviation authority and
to specify when deviation authority is required for these operations.
Specifically, the FAA proposes adding Sec. 91.326(a) to provide an
exception to the general limitations of operating an aircraft under
Sec. Sec. 91.315, 91.319(a)(2), and 91.325(a) for compensation or
hire. Section 91.326(a) would codify the legislation to allow
authorized instructors, aircraft owners, lessors, or lessees to
accomplish certain flight training, checking, and testing in
experimental aircraft without obtaining a LODA. The FAA also proposes
to include limited category and primary category aircraft in the
proposed rule, in addition to experimental aircraft, because current
regulations prohibit the same training, checking, and testing for
compensation in limited and primary category aircraft, and the safety
justification for enabling these activities applies equally. The
proposed provision would maintain the safety benefits of using standard
category aircraft to accomplish most flight training, checking, and
testing while acknowledging the safety benefits of permitting pilots to
perform these activities in the aircraft they own or regularly operate.
The following preamble sections discuss the conditions in the
legislation as set forth in proposed Sec. 91.326(a)(1) through (3).
1. Prohibition on Authorized Instructor Providing Both Training and
Aircraft (Sec. 91.326(a)(1))
To accomplish flight training, testing, and checking in an
experimental aircraft without a LODA, section 5604(1) of the 2023 NDAA
prohibits an authorized instructor from providing both the training and
the aircraft when there is compensation exchanged for flight training,
checking, or testing. This provision would be codified in Sec.
91.326(a)(1) and extended to flight training, testing, and checking in
limited and primary category aircraft, in addition to the experimental
aircraft addressed in the legislation. As such, any flight training,
checking, or testing given by an authorized instructor in the
authorized instructor's own aircraft must either be given without any
compensation or must be given in accordance with a LODA. The FAA notes
that compensation can be non-monetary because compensation is the
receipt of anything of value.\73\ For example, the FAA previously found
that reimbursement of expenses such as fuel, oil, transportation,
lodging, and meals, accumulation of flight time, and goodwill in the
form of expected future economic benefit could be considered
compensation.\74\
---------------------------------------------------------------------------
\73\ Legal Interpretation to Joseph Kirwan (May 27, 2005)
(Compensation ``does not require a profit, a profit motive, or the
actual payment of funds'').
\74\ Legal Interpretation to John W. Harrington (Oct. 23, 1997);
Blakey v. Murray, NTSB Order No. EA-5061 (Oct. 28, 2003).
---------------------------------------------------------------------------
2. Prohibition on Broadly Offering the Aircraft as Available for Flight
Training, Checking, or Testing (Sec. 91.326(a)(2))
To accomplish flight training, testing, and checking in an
experimental aircraft without a LODA, section 5604(2) of the 2023 NDAA
prohibits any person from broadly offering the aircraft as available
for the activity. Proposed Sec. 91.326(a)(2) would codify this
provision and extend it to limited category aircraft and primary
category aircraft that are pilot-owner maintained.
Under proposed Sec. 91.326(a)(2), the persons listed in Sec.
91.326(a) who wish to receive or provide training in one of these
aircraft may do so without obtaining deviation authority, as long as
they do not broadly offer or advertise services in those aircraft to
the public. To highlight this distinction, the FAA notes that when an
owner seeks to receive training in their own aircraft, there is no need
for the owner to advertise or broadly offer any services to receive
that flight training. An aircraft owner would not need to advertise
their aircraft as available for flight training.
[[Page 41209]]
Rather, the owner would simply hire a flight instructor of their
choosing.
This prohibition on offering the aircraft to the public forecloses
flights devoid of instructional or educational value and conducted
solely for entertainment or leisure under the guise of flight training.
The FAA underscores the importance of pilots understanding and being
familiar with the particular systems, procedures, operating
characteristics, and limitations of the aircraft they will regularly
operate. Data has shown that this increased understanding and
familiarity results in fewer accidents over time.\75\
---------------------------------------------------------------------------
\75\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12,
2012), available online: <a href="https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf">https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf</a>.
---------------------------------------------------------------------------
Importantly, advertising or broadly offering an aircraft for flight
training can take many forms. In general, an entity or individual
advertises its services when it communicates to the public, or a
segment of the public, that flight training services are
indiscriminately available to any person with whom contact is made.
Currently, advertisers can promote material in more than just
traditional print sources such as magazines or newspapers. Advancing
technology allows individuals to reach consumers through electronic
communications and internet postings. Moreover, even if an individual
limits efforts to solicit flight training services to a class or
segment of the general public, it may still be considered ``broadly
offering'' its services. For example, if a person posts advertisements
only on select social media websites, or within particular groups on a
social media website or other internet platform, it may still be deemed
to ``broadly offer'' its services if the advertisements express a
willingness to provide flight training to all users within a class or
segment of those platforms. The FAA also considers establishing a
reputation of a willingness to perform a service broadly as contrary to
the prohibition in the legislation and the proposed rule.\76\ The FAA
emphasizes that any leasing scenario remains subject to the prohibition
on offering and advertising the aircraft for use. In any case, no
person may broadly offer the aircraft or profit from the use of the
aircraft and any receipt of compensation is limited to the expenses
discussed in the next section.
---------------------------------------------------------------------------
\76\ AC 61-142, Sharing Aircraft Operating Expenses in
Accordance with 14 CFR 61.113(c), (2020), states,). ``Physically
holding out, without advertising, where the pilot gains a reputation
of serving all, is sufficient to constitute an offer to carry all
customers. There are many means by which physically holding out can
take place, e.g., personal solicitation and course of conduct. A
pilot's course of conduct can be sufficient to find that there has
been a holding out of service to the public because the course of
conduct can indicate a willingness to serve all who apply for
service. The actions or conduct used to develop the reputation would
be considered to be holding out.''
---------------------------------------------------------------------------
In support of this prohibition on advertising, the FAA maintains
that when aviation operations are offered broadly to the public for
compensation, the public expects, and the FAA demands, a higher level
of safety. This expectation is evidenced by the requirements that
charter operators comply with part 135, scheduled airlines comply with
part 121, and flight schools utilize standard category aircraft for
flight training unless they possess a LODA. Limited category,
experimental, and primary category aircraft do not meet the same
certification requirements as standard category aircraft. Therefore,
additional restrictions are necessary to maintain the public's
expectation of safety.
theirWhile the FAA places great value on the need for pilots to
understand and be familiar with the particular systems, procedures,
operating characteristics and limitations of the aircraft they will
operate, the FAA must also ensure public safety for services broadly
offered. Paragraph (a)(2) seeks to balance these interests by imposing
restrictions for flight training only outside the scope of personal
use. Beyond this, flight training offered to the public is broadly
available in standard category aircraft or, if deemed necessary, in a
limited category or experimental aircraft in accordance with a LODA
under proposed Sec. 91.326(b), discussed later in this preamble.
3. Compensation for Use of the Aircraft (Sec. 91.326(a)(3))
To accomplish flight training, testing, and checking in an
experimental aircraft without a LODA, section 5604(3) of the 2023 NDAA
limits the type of compensation that may be received for the use of the
aircraft. Proposed Sec. 91.326(b) would codify this provision and
extend it to limited category, experimental, or primary category
aircraft. Under the proposed rule (and consistent with the legislative
provision for experimental aircraft), no person would be permitted to
receive compensation for use of the aircraft for a specific flight
during which flight training, checking, or testing was accomplished,
other than expenses for owning, operating, and maintaining the
aircraft. Compensation for the use of the aircraft that yields a profit
for the operator is prohibited under the legislation and the proposed
rule. The FAA makes this distinction to foreclose the use of aircraft
holding certain special airworthiness certificates for profit without
the safety mitigations provided by a LODA.
The FAA recognizes that operating an aircraft naturally incurs
expenses, such as ongoing maintenance of the aircraft, fuel used during
a flight, and other expenses associated with aircraft ownership. The
FAA notes that the legislation ties the compensation to the costs
associated with the specific flight.
When money is exchanged for transportation, the public expects, and
the FAA demands, a higher level of safety for the flying public.\77\
Accordingly, operations for compensation involving aircraft holding
special airworthiness certificates require additional regulations to
ensure public safety. The use of standard category aircraft remains
broadly available for those members of the public seeking to receive
flight training.
---------------------------------------------------------------------------
\77\ See legal interpretation for General Aviation Manufacturers
Association, addressed to Mr. Bunce, dated Nov. 19, 2008.
---------------------------------------------------------------------------
Consistent with these principles, a person may operate for the
purpose of flight training in a limited category, experimental, or
primary category aircraft without a LODA only when no compensation is
exchanged for the use of the aircraft, other than expenses for owning,
operating, and maintaining the aircraft.\78\ Operations involving
compensation for the use of the aircraft that yields a profit will
continue to require a LODA.
---------------------------------------------------------------------------
\78\ See proposed Sec. 91.326(a)(1) which specifies that the
authorized instructor cannot provide both the training and the
aircraft without a LODA.
---------------------------------------------------------------------------
E. LODA Framework (Sec. 91.326(b) and (c))
While the FAA maintains that, in general, limited category,
experimental, and primary category aircraft should not be broadly
offered for flight training, checking, and testing, the FAA finds that
there is certain specialized training that may be effectively and
safely accomplished in these aircraft under certain conditions.
Currently, persons seeking to offer this type of flight training for
compensation or hire in limited and primary category aircraft are
required to obtain a grant of exemption.\79\ By contrast, persons
seeking to offer this type of flight training in experimental aircraft
may apply for a LODA under Sec. 91.319(h).
---------------------------------------------------------------------------
\79\ See Federal Register Docket FAA-2013-0506 and FAA-2017-0942
for examples of grants of exemption from Sec. 91.315 for the
purpose of flight training in limited category aircraft issued to
Delaware Aviation Museum Foundation and Stallion 51 Corporation,
respectively.
---------------------------------------------------------------------------
In Sec. 91.326(b), the FAA proposes that any person who wants to
conduct flight
[[Page 41210]]
training, checking, or testing in limited category and experimental
aircraft \80\ outside the restrictions and limitations of proposed
Sec. 91.326(a) may apply for deviation authority. Flight training,
checking, or testing operations that would require a LODA include, but
are not limited to, receiving compensation for flight training while
also receiving compensation for the use of the aircraft and/or
advertising or broadly offering the use of an aircraft for flight
training, checking, or testing. For example, under the proposed
framework, a person who owns an aircraft holding an experimental or
limited category special airworthiness certificate, such as a North
American B-25 or Curtiss P-40, would be required to hold a LODA to
offer transition or proficiency training to the public.
---------------------------------------------------------------------------
\80\ The FAA notes that certain primary category aircraft would
be excluded from Sec. 91.326(c) because proposed Sec. 91.325(c)
would make a LODA unnecessary, as that rule would explicitly enable
flight training, checking, and testing without the need for
deviation authority.
---------------------------------------------------------------------------
The FAA first introduced deviation authority in a 2004 final rule
\81\ to allow for training that was, at that time, only available
through exemption. Pursuant to Sec. 91.319(a)(2), the 2004 final rule
prohibited carrying persons or property in experimental aircraft for
compensation or hire. As flight training is considered to be carrying
persons for compensation or hire, the deviation authority offered in
the 2004 final rule allowed for issuance of a LODA in lieu of an
exemption for flight training in experimental aircraft.
---------------------------------------------------------------------------
\81\ Certification of Aircraft and Airmen for the Operation of
Light-Sport Aircraft, 69 FR 44771 (Jul. 27, 2004). In the final
rule, the FAA amended Sec. 91.319 by adding Sec. 91.319(h) to
allow deviation authority from the provisions of Sec. 91.319(a) for
the purpose of conducting flight training.
---------------------------------------------------------------------------
NTSB Safety Recommendation A-12-035 advises the FAA to develop and
publish an advisory circular, or similar guidance, for the issuance of
a Letter of Deviation Authority to conduct flight instruction in an
experimental aircraft, to include sample documentation and sample
training materials.\82\ This recommendation was in response to the
NTSB's finding that providing pilots of experimental amateur-built
aircraft with better access to training would enhance flight safety. In
response to NTSB Safety Recommendation A-12-035, the FAA is proposing
LODA framework to provide the FAA with an opportunity to evaluate the
operation and impose any additional pilot qualifications and
maintenance requirements necessary for safety when offering services to
the public. Although Sec. 91.319(h) authorizes the FAA to issue
deviation authority for the purpose of flight training in experimental
aircraft, the FAA also recognizes that, in certain circumstances, there
is value in flight training in limited category aircraft. For that
reason, the FAA is proposing to remove the LODA provision in Sec.
91.319(h) and incorporate, expand, and clarify the LODA framework in
proposed Sec. 91.326(b) to apply to both limited category and
experimental aircraft. The FAA has drafted an advisory circular
describing the LODA application process and identifying the factors
that the FAA will consider in determining whether a LODA should be
issued. The advisory circular is available in the docket for this
rulemaking for public comment concurrently with publication of this
NPRM. In a 2012 safety recommendation report referencing
recommendations A-12-28 through -39, the NTSB concluded that
experimental amateur-built aircraft accidents involving loss of
aircraft control could be reduced if more pilots received transition
training.\83\ Since promulgation of the 2004 final rule, FAA and
industry research indicates that the training conducted under Sec.
91.319(h) deviation authority continues to reduce accidents in
experimental aircraft when conducted in accordance with the conditions
and limitations of that deviation authority. Therefore, expanding this
deviation authority to permit some flight training, checking, and
testing in limited category aircraft is also likely to increase safety
and reduce accidents in those aircraft because it would provide a
greater incentive to operators of limited category aircraft to seek out
and complete such training.
---------------------------------------------------------------------------
\82\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12,
2012), available online: <a href="https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf">https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf</a>.
\83\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12,
2012), available online: <a href="https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf">https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf</a>.
---------------------------------------------------------------------------
The FAA anticipates that using a single rule to cover deviation
authority for limited category and experimental aircraft will promote a
streamlined process and relieve the burden on the public to apply for
an exemption for limited category aircraft. Additionally, incorporating
the LODA framework from Sec. 91.319 into proposed Sec. 91.326(b)
would make the application process consistent for limited category and
experimental aircraft. The proposed Sec. 91.326(b) framework would
apply to owners, operators, and training providers who broadly offer,
or receive compensation for, the use of certain aircraft for
specialized flight training, checking, and testing.
Flight training, checking, or testing in limited category aircraft
are currently only available by grant of exemption from the
regulations. The FAA finds this burdensome and labor intensive not only
for the agency but also the persons offering this specialized training.
Since the 2004 final rule, Sec. 91.319 has provided this training
through deviation authority, while maintaining an equivalent level of
safety. As a result, the FAA concludes that implementing the LODA
framework on a broader scale will similarly support public safety,
reduce administrative costs and burdens, and increase operator
efficiency.
In further support of codifying a consolidated LODA framework in
Sec. 91.326(b), the FAA emphasizes the safe and successful use of
LODAs under Sec. 91.319. Under Sec. 91.319(h), the FAA has
historically granted LODAs for specialized training in experimental
aircraft that could not otherwise be obtained in aircraft holding
standard airworthiness certificates, e.g., model-specific training and
jet upset recovery training. These LODAs have been issued to operators
who demonstrate that their flight instructors, trainees, and aircraft
meet specific additional requirements above those generally required to
operate experimental aircraft. As currently used under Sec. 91.319,
LODAs increase public safety because they support minimum pilot
qualifications, structured training curricula, and additional aircraft
maintenance inspection requirements. Issuance of a LODA enables the FAA
to provide oversight of training and maintenance of the aircraft and
place certain restrictions on those who participate. The FAA finds it
necessary to place these restrictions within the LODA to ensure safety
to the public paying for training in these aircraft who may not be
familiar with aircraft holding special airworthiness certificates.
Evaluation of the training program ensures a structured and complete
training syllabus. The operator and participant must comply with
certain conditions and limitations issued with a LODA. Each operator
must use aircraft-specific flight and ground training curricula. The
operator must keep a record of the training given for a period of three
years. Persons providing training, checking, and testing must be
authorized under part 61 or part 183, as applicable, for the specific
operation and must be qualified in the aircraft to be used. These
parameters and oversight requirements ensure the safety of the
[[Page 41211]]
public during these activities and operations.
1. Granting, Amending, and Cancelling a LODA (Sec. 91.326(b)(1) and
(2))
The FAA proposes to add Sec. 91.326(b)(1) and (2) to prescribe the
manner in which the FAA may issue, cancel, and amend LODAs.
Particularly, Sec. 91.326(b)(1) clarifies that operators would be
granted relief from Sec. Sec. 91.315 or 91.319(a) through a LODA. In
offering this deviation authority in the form of a letter, the FAA
intends to model the proposed deviation authority after the current
deviation authority provided in Sec. 91.319(h) that would be
superseded by proposed Sec. 91.326(b) if adopted.
In addition, the FAA proposes to add Sec. 91.326(b)(2) to enable
the FAA to cancel or amend a LODA if it determines that the deviation
holder has failed to comply with the conditions and limitations or at
any time if the Administrator determines that the deviation is no
longer necessary or in the interest of safety. For example, the FAA
would be able to cancel a LODA for non-compliance with the terms and
conditions of the LODA. Likewise, a LODA could be cancelled when a
significant number of identical aircraft holding standard airworthiness
certificates become available. Once an aircraft is certificated in the
standard category and significant numbers are available, the need for
the LODA may be unnecessary.
Under proposed Sec. 91.326(b)(2), a LODA could also be amended for
safety concerns. For example, the FAA may, when necessary, revise the
conditions and limitations or require corrective action to adequately
mitigate safety concerns and risk factors as they become known. In
conclusion, proposed Sec. 91.326(b)(2) affords the FAA flexibility to
modify or cancel the LODA, as needed, based on changing circumstances.
2. Requirements for a LODA (Sec. 91.326(b)(3))
In Sec. 91.326(b)(3), the FAA proposes to codify a timeline for
operators to submit LODA applications, the form and manner requirements
for submission, and the information that the applicant should provide.
As proposed, an applicant must submit the request for a LODA in a form
and manner acceptable to the Administrator. As set forth in the draft
LODA AC, Application and Issuance Process for a Letter of Deviation
Authority Issued in Accordance with Part 91, Sec. 91.326, the form and
manner of an application submission may include email, fax, regular
mail, or in-person delivery. Consistent with the current application
process under Sec. 91.319(h), applicants may apply for a LODA by
contacting the Flight Standards District Office (FSDO) nearest their
primary place of business. FSDO personnel can provide the applicant
with specific instructions on how to present the LODA request to that
FSDO and provide the applicant with reference material and supporting
information.\84\ A draft of the advisory circular has been published
for comment concurrently with this NPRM and is available in the
rulemaking docket.
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\84\ FAA Order 8900.1, Vol. 3, Chpt. 11, Sec. 1, Use of Aircraft
Issued Experimental Certificates in Flight Training for Compensation
or Hire, provides information about the issuance of a LODA for
conducting flight training under Sec. 91.319(h). Additionally, the
FAA is producing a new advisory circular that would provide
information, guidance, and recommendations on the application and
issuance process for obtaining a LODA to operate a limited category,
primary category, or experimental aircraft for compensation or hire
while providing flight training, checking, and testing.
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The proposed regulation would also require that the application
package be submitted at least 60 days before the date of intended
operations. The 60-day requirement is proposed to allow the
Administrator adequate time to review stakeholder applications and
supporting documents. The current Sec. 91.319(h) LODA process has
demonstrated that this is a reasonable time allowance. The FAA has
determined a need for a 60-day review period to ensure the
effectiveness of the LODA and the proper conditions specified within
each LODA. The FAA notes that not all LODA training syllabi or
justifications will be identical. Therefore, the 60-day review period
is intended to provide sufficient time to assess each unique
application on a case-by-case basis.\85\
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\85\ For those operators who currently hold an exemption or a
LODA, section IV(E)(6) of this NPRM explains how operators would
transition to a LODA issued under the proposed rule.
---------------------------------------------------------------------------
Proposed Sec. 91.326(b)(3)(i) through (ix) enumerate the items an
applicant would be required to include in their request for deviation
authority. The FAA proposes to require this information from the
applicant to evaluate the application to determine whether granting the
request for a LODA would be in the interest of safety. Information
required by this proposed section includes, for example, in Sec.
91.326(b)(3)(ii), the name and contact information of the individual
with ultimate responsibility for operations authorized under the LODA.
Likewise, applicants must include a detailed training program
demonstrating that the proposed activities would meet intended training
objectives. The training program description may include a training
overview, a syllabus, minimum instructor qualifications, prerequisites
for persons receiving training, a description of teaching aids, special
equipment, simulators, and flight training devices, as applicable, and
a method for recordkeeping.\86\ The FAA proposes to request this
training program information from applicants to ensure that, if
granted, the requested LODA would solely be used for appropriate,
limited training purposes, which would in turn support safe operation
of the aircraft.
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\86\ Additional information describing the items applicants are
encouraged to submit for a complete LODA application is provided in
the LODA advisory circular, which has been placed in the docket for
this rulemaking.
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Additionally, the FAA proposes Sec. 91.326(b)(3)(viii), which
specifies additional information required to be submitted by LODA
applicants when formation and aerobatic training, or training leading
to the issuance of an endorsement is requested. The information
required to be submitted for this purpose would describe a process by
which a LODA holder will identify whether a trainee has a specific need
for that training. The FAA is proposing to require LODA applicants to
provide additional reasoning for conducting formation or aerobatic
training, or training leading to the issuance of an endorsement because
those types of training, generally, can be conducted in standard
category aircraft. Because the FAA encourages training to be conducted
in the aircraft which a trainee would most often operate, the
additional explanation would enable the agency to determine whether
granting the applicant's request for a LODA is necessary in the
interest of safety. Persons with a specific need include, for example,
aircraft builders, purchasers, owners, test pilots, and qualified
additional pilots under AC 90-116. The aircraft used for training must
have similar handling qualities and flight characteristics to the
aircraft being built or flown by the trainee to be eligible. These
persons will have regular access to substantially similar aircraft and
would benefit from the additional training, as training can expand
pilot skills that are transferrable to the aircraft they will regularly
fly. Persons without a specific need can receive this training in an
aircraft holding a standard airworthiness certificate.
3. Limitations in the LODA (Sec. 91.326(b)(4))
Currently, under Sec. 91.319(i), the Administrator may prescribe
additional limitations that the Administrator finds
[[Page 41212]]
necessary for aircraft holding experimental airworthiness certificates.
The conditions and limitations the FAA places in LODAs under the
discretion provided in Sec. 91.319(i) allow the FAA to authorize
appropriate training activity not otherwise permitted by regulation
while ensuring the safety of the NAS and persons and property on the
ground. Historically, the FAA has included a list of general conditions
and limitations related to aircraft inspection and maintenance
requirements, airman qualifications, operating limitations, and
training requirements in all LODAs authorizing flight training. For
example, current LODAs contain a limitation that requires the operator
to keep a record of the training given for a period of three years.
This condition ensures that the FAA may conduct appropriate safety
oversight of operations conducted under the LODA. Likewise, given the
unique risks posed by aircraft with ejection seats, LODAs have
contained a requirement that trainees must complete an acceptable
course of ejection seat training before training in an aircraft with an
ejection seat. The FAA also includes conditions and limitations for
trainees and flight instructors with regard to minimum qualifications
such as certificate, ratings, and endorsements even when the trainee or
flight instructor is not acting as PIC of the flight. LODA holders must
comply with the conditions and limitations imposed under Sec. 91.319
while conducting activity under the LODA unless the FAA provides relief
from the conditions and limitations in the LODA.
The FAA proposes to add a provision similar to Sec. 91.319(i) in
proposed Sec. 91.326(b)(4) to allow the Administrator to continue to
prescribe additional conditions and limitations in LODAs for
experimental aircraft and extend that allowance to LODAs issued for
training, testing, and checking in limited category aircraft when
necessary for safety. The FAA would continue to impose these safety
conditions and limitations on future training, checking, and testing
conducted under LODAs issued under proposed Sec. 91.326(b). The FAA
reiterates that, when training, checking, and testing can be
successfully accomplished in a standard category aircraft, a LODA to
conduct such training in aircraft with special airworthiness
certificates is not appropriate. Where training, checking, and testing
is allowed in experimental and limited category aircraft, the FAA must
have a means to ensure that safety is maintained given the nature of
the aircraft used. The full list of conditions and limitations is
further described in the LODA Advisory Circular (AC), Table 4,
``Additional Limitations,'' which has been placed in the docket for
this rulemaking. The FAA is proposing slight modifications to the
standard conditions and limitations imposed under Sec. 91.319(i) and
specifically requests comment on all of the conditions and limitations
set forth in Table 4 of the AC.
4. Persons Permitted on Board During Operations Under a LODA (Sec.
91.326(b)(5))
The FAA proposes to add Sec. 91.326(b)(5) to limit the persons
permitted to be on board an aircraft during operations under a LODA.
The airworthiness certification standards for aircraft that hold
special airworthiness certificates do not rise to the level of
demonstrated safety and reliability of those holding standard
airworthiness certificates. Besides the instructor, designated examiner
and the person receiving the training, checking, or testing, only
persons deemed essential to the safe operation of the aircraft would be
permitted to be carried on board the aircraft. Notably, a pilot who
holds a temporary letter of authorization (LOA) to act as PIC in an
experimental aircraft who also holds a flight instructor certificate is
generally not authorized to conduct flight training under a LODA.
Temporary LOAs are issued to a pilot to act as PIC in unique, highly
specific circumstances, such as in the case of a first flight of a new
or first-of-a-kind aircraft. Temporary LOAs are not issued to flight
instructors for the purpose of flight training under a LODA.
In addition to authorized instructors, designated examiners, and
those receiving the flight training or being checked or tested, the FAA
proposes to permit persons essential for the safe operation of the
aircraft to be on board during operations under a LODA. The FAA notes
that, to be conducted effectively, flight training, checking, and
testing operations do not require persons besides authorized flight
instructors, designated examiners, those receiving flight training or
being checked or tested, and other persons essential for the safe
operation of the aircraft to be on board. The addition of persons not
directly related to flight training, testing, checking, or operation of
the aircraft may create unnecessary distraction.
However, some aircraft holding special airworthiness certificates
may have unique characteristics or design features that necessitate
additional persons for safety. For example, operators of certain
vintage, multi-engine aircraft, like the North American B-25 or Boeing
B-17, choose to utilize persons to perform certain functions related to
aircraft safety. These functions may include observing engines to
monitor for smoke/malfunction, observing engine instruments to monitor
for anomalies, or operation of mechanical systems that may not be in
easy reach of the flightcrew. Importantly, the determination of whether
a person is essential for safety would be determined based on several
factors. The FAA would consider whether these persons are trained and
designated by the operator for these functions and are not members of
the general public. The FAA would be unlikely to consider persons
unaffiliated with the operator and designated to perform essential
functions ``on the spot'' to be genuinely performing a duty essential
to safety. This precludes an operator from assigning ``essential
functions'' to persons who do not normally participate in the operation
of the aircraft. For example, a non-pilot friend in the back seat given
a nominal task or observing training could be construed as a ride for
hire which is not contemplated by the proposed regulation. The FAA will
also consider whether the operator routinely fills a particular
position to determine if it is essential. For example, if an operator
routinely utilizes a crew complement of two pilots, but one day decides
to put a third person on board to ``monitor engines'', the
Administrator would likely not consider that additional person to be
essential. However, if an operator routinely utilizes a trained crew
chief who is present because there is emergency mechanical equipment
beyond the reach of the flightcrew, like an emergency gear extension
crank, the Administrator may consider that person to be essential for
safety. Likewise, additional person(s) would not be allowed to be
present solely to receive transportation or for recreational purposes.
The specification of the persons permitted to be carried on board
the aircraft in the proposed Sec. 91.326(b)(5) is meant to provide
clarity to those applying for a LODA under Sec. 91.326. In this
regard, the list of recognized persons is exclusive. Outside of the
personnel delineated in the proposed Sec. 91.326(b)(5), the FAA does
not contemplate the additional carriage of persons on board the
aircraft even with the issuance of a LODA. Such activity, therefore,
would remain prohibited under this proposed rule.
[[Page 41213]]
5. Types of Training (Sec. 91.326(b)(6))
The FAA proposes to limit the types of training, testing, and
checking that may be authorized under the proposed deviation authority.
Currently, LODAs are issued for certain specialized types of
experimental aircraft training. Aircraft holding special airworthiness
certificates are not designed, built, or maintained to the same
standard as those holding standard airworthiness certificates.
Therefore, the FAA proposes to limit the availability of the use of
experimental and limited category aircraft in flight training offered
to the public by limiting the types of training available.
The types of training currently available under a LODA are limited
in nature and generally contemplate only specialized training that
cannot be accomplished in aircraft holding standard airworthiness
certificates. For example, private pilot certification training and
testing is not available for LODA training, as this can be accomplished
in aircraft holding standard airworthiness certificates. Conversely,
jet upset recovery training is available for LODA training because
there are no standard category jet aircraft with limitations that allow
for aerobatic flight.
Except in specific circumstances, LODAs should not be issued to
permit flight training toward the issuance of a pilot certificate,
rating, or operating privilege that can be obtained through training
and testing in an aircraft with a standard category airworthiness
certificate. For example, syllabi developed solely for aerobatic
training or flight training that leads to the issuance of an
endorsement (e.g., tailwheel or pressurized aircraft, or a complex or
high performance airplane) would not be considered appropriate for
issuance of a LODA. In addition, no demonstration or discovery flights
would be authorized. Demonstration flights, discovery flights, sales
demonstrations, introductory flights, experiential flights, and other
flights not related to the flight training syllabus are not authorized
under a LODA.
On the contrary, a LODA may be requested to facilitate specialized
training necessary to gain skills and abilities to safely operate
specific aircraft. In addition, a LODA may be used to receive training
that cannot otherwise be conducted in aircraft holding a standard
airworthiness certificate. For example, an applicant may utilize a LODA
to participate in model-specific transition training. Similarly, an
applicant may request a LODA to conduct training and testing that leads
to the issuance of a specific experimental aircraft authorization,
limited category type rating, rotorcraft gyroplane training at all
levels, a sport pilot certificate, or sport pilot operating privilege.
The FAA includes a description of each type of training
contemplated under this section in the draft LODA AC placed in the
docket to this rulemaking. The FAA welcomes public comment on the types
of training authorized under a LODA and the accompanying safety
rationale in response to publication of the draft LODA AC.
The FAA notes that LODAs are intended to bolster specialized
training in aircraft holding certain special airworthiness certificates
that cannot otherwise be accomplished in aircraft holding standard
airworthiness certificates. In support of this intent, as noted, LODAs
will not be issued exclusively to permit aerobatic or formation
training or to permit training for the sole purpose of issuance of an
endorsement. However, there are certain circumstances which may warrant
aerobatic training, formation training, or issuance of an endorsement
as part of a broader training program. This type of training will only
be available to trainees who have a specific need to receive such
training. The AC published concurrently with this NPRM provides greater
detail on when a person may be considered to have a ``specific need''
to receive this type of training, and the other corresponding
requirements for airmen certification and flight characteristics.
6. Status of Current LODAs (Sec. 91.326(c))
The FAA proposes to add Sec. 91.326(c) to provide clarity to those
who hold a LODA issued under Sec. 91.319(h) at the time of publication
of the final rule if the proposal is adopted. In Sec. 91.326(c)(1) and
(2), the FAA proposes that any person who holds a LODA which is still
active as of the date of the final rule (should this proposal be
adopted) would be permitted to continue to operate under that LODA
subject to its terms and conditions for 24 months after the effective
date of the final rule. This proposed language would ensure that LODA
holders continue to comply with the conditions and limitations under
which their LODA was issued between the publication of a final rule and
the termination of their LODAs granted under Sec. 91.319(h). The FAA
proposes to permit Sec. 91.319(h) LODA holders to continue operating
under those LODAs for 24 months after the effective date of a final
rule because it would ensure those LODA holders have adequate time to
apply for a new LODA under the Sec. 91.326(b) framework. In Sec.
91.326(c)(3), the FAA proposes to add that any existing LODAs issued
under Sec. 91.319(h) may be cancelled or amended at any time, as is
currently provided for under Sec. 91.319(h). Permitting those existing
LODAs to be cancelled or amended at any time would enable the FAA to
ensure the continuing safety of operations permitted under the existing
LODAs. Finally, in Sec. 91.326(c)(4), the FAA proposes to terminate
all preexisting LODAs issued under Sec. 91.319(h) 24 months after the
effective date of a final rule. Current exemption holders would instead
apply for a LODA under proposed Sec. 91.326(b). Some operators have
been granted exemptions in limited category aircraft for the purpose of
offering flight training to the public. Except for exemptions issued
for Living History Flight Experiences (LHFE), exemptions from Sec.
91.315 issued for the purpose of flight training in limited category
aircraft will not be renewed or extended. LHFE exemptions are granted
for the purpose of providing flight experiences in certain
historically-significant aircraft. These LHFE exemptions will be
unaffected by this proposed rulemaking.
In anticipation of the initial volume of applications, the FAA
encourages applicants to submit their LODA applications at least 180
days prior to the 24-month expiration date. Although present LODA
holders are not guaranteed deviation authority under this new
provision, this 180 days would help current LODA holders ensure that
there is no gap in LODA coverage between their existing LODA
terminating and their new LODA under Sec. 91.326(b), should it be
issued. In addition, the FAA notes that currently, LODAs are no longer
required for owners and operators of experimental aircraft who comply
with section 5604 of the 2023 NDAA (proposed to be codified in Sec.
91.326(a)).
V. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Order 12866 and Executive Order 13563, as amended by Executive Order
14094 (``Modernizing Regulatory Review''), direct that each Federal
agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify the
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354)
requires agencies to analyze the economic impact of regulatory changes
[[Page 41214]]
on small entities. Third, the Trade Agreements Act (Pub. L. 96-39)
prohibits agencies from setting standards that create unnecessary
obstacles to the foreign commerce of the United States. Fourth, the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits and other
effects of proposed or final rules that include a Federal mandate that
may result in the expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million or more
(adjusted annually for inflation) in any one year. The current
threshold after adjustment for inflation is $165 million, using the
most current (2021) Implicit Price Deflator for the Gross Domestic
Product.
In conducting these analyses, the FAA has determined that this
rule: (1) will result in benefits that justify costs; (2) is not a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866; (3) is not ``significant'' as defined in DOT's
Regulatory Policy and Procedures; (4) will not have a significant
economic impact on a substantial number of small entities; (5) will not
create unnecessary obstacles to the foreign commerce of the United
States; and (6) will not impose an unfunded mandate on State, local, or
tribal governments, or on the private sector.
A. Regulatory Evaluation
1. Summary
The FAA analyzed the costs and benefits for the provisions related
to PAO and the provisions related to training, testing and checking in
certain aircraft with special airworthiness certificates separately.
The provisions related to PAO impose no new costs and the FAA expects
the proposal will reduce the costs for pilots conducting PAO to
maintain their civil certificates and ratings.\87\ The provisions
related to training, testing and checking impose approximately $100,000
in total one-time costs (undiscounted) over a period of two years.
Roughly half of these costs stem from the requirement for the current
approximately 180 LODA holders who broadly offer certain aircraft with
special airworthiness certificates for training to reapply within two
years of the effective date of a final rule, if this proposed rule is
adopted. The other half of the costs include the time costs to the FAA
which must process these applications over the first two years.
However, the FAA expects the cost savings from the streamlined
regulatory framework, and the safety benefits from greater access to
specialized training in aircraft with certain special airworthiness
certificates, to exceed the initial costs. Overall, the FAA concluded
that this proposal would maintain and promote safety with minimal
impact on cost.
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\87\ The FAA does not maintain counts of pilots who fly PAO for
federal, state and local governments and there is insufficient data
for the FAA to estimate the number of pilots affected by the PAO
proposal. See ``How to Become a Government Pilot'' in Flying
Magazine by James Wynbrandt, Dec.13, 2017. Available at: <a href="https://www.flyingmag.com/how-to-become-government-pilot/">https://www.flyingmag.com/how-to-become-government-pilot/</a>. Last accessed
Jul. 22, 2022.
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2. Logging Flight Time in Public Aircraft Operations
The FAA requires pilots to log flight time used to meet training,
aeronautical experience and recent flight experience requirements for
civil pilot certificates and ratings.\88\ Currently, logging of flight
time in aircraft used for PAO is limited to official law enforcement
flights. The FAA proposes to extend logging pilot flight time in PAO
not only to forestry and fire protection services, as directed by
section 517 of the FAA Reauthorization Act of 2018, but also to any PAO
including operations involving national defense, intelligence missions,
search and rescue, aeronautical research and biological or geological
resource management. The FAA expects the rule to lower the cost for
pilots conducting PAO to maintain their civil certificates and ratings.
Although pilots conduct PAO outside of FAA civil certification and
certain safety oversight regulations, each government entity may
maintain its own certification system and requirements for pilots. For
many government entities, this includes adopting the same standards as
those codified in 14 CFR to ensure safety and comply with liability
insurance requirements.\89\ For example, the California Department of
Forestry and Fire Protection (CAL FIRE), a state agency that is the
largest firefighting air force in the world \90\ with over 50 aircraft,
requires its fixed-wing and helicopter pilots to maintain FAA
commercial pilot certificates, various FAA ratings, and recent flight
experience requirements.\91\ Additionally, the CAL FIRE 8300 manual
contains specific references and obligations for compliance with FAA
regulatory requirements applicable to civil operations.\92\
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\88\ 14 CFR 61.51(a) does not require pilots to log all flight
time. Pilots are only required to record aeronautical experience
used to obtain civil certificates and ratings and meet recent flight
experience requirements.
\89\ Wynbrandt, James W. ``How to Become an Airborne Law
Enforcement Pilot'' in Flying, Dec. 18, 2017. Accessed Feb. 8, 2022,
https://www.flyingmag.com/how-to-become-an-airborne-law-enforcement-
pilot/
#:~:text=Most%20state%20and%20municipal%20ALE,aren't%20hard%20to%20fi
nd.
\90\ Joiner, Stephen. ``The Pilots Who Fight California's
Wildfires'' Smithsonian, August 2019. Accessed Feb. 15, 2022,
<a href="https://www.smithsonianmag.com/air-space-magazine/wildfire-wars-180972602/">https://www.smithsonianmag.com/air-space-magazine/wildfire-wars-180972602/</a>.
\91\ CAL Fire Petition for Exemption 14 CFR 61.51(j), Nov. 23,
2020.
\92\ CAL Fire Petition for Exemption 14 CFR 61.51(j), Nov. 23,
2020.
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Allowing pilots to credit their PAO flight time would enable PAO
pilots to meet FAA flight experience and recency requirements in the
course of their duties, thereby avoiding costs required to accrue
flight time and recent experience in civil aircraft operations. These
avoided costs could include avoided travel time, flight time, fuel
costs, and costs for use of a civil aircraft. Additionally, the FAA
finds that recording PAO flight time will not impose additional costs
because PAO pilots already record their flight time to meet the safety
and insurance requirements of their employers. For this reason, the FAA
proposes to allow pilots to retroactively credit PAO flight time. The
FAA concludes that the proposal to allow pilots to record and credit
PAO flight time will not adversely affect safety, impose any additional
costs, or pose novel policy or legal issues.
3. Flight Training, Testing, or Checking for Compensation in Certain
Aircraft With Special Airworthiness Certificates
Consistent with the 2023 NDAA, the proposal allows owners or
operators of experimental aircraft to receive training, testing, and
checking in their aircraft without a LODA, in certain circumstances.
The proposed rule would extend the provision to training, testing, and
checking in limited category and primary category aircraft.
Additionally, the proposal moves the current LODA process for
experimental aircraft in Sec. 91.319(h) to proposed Sec. 91.326(b)
and extends the LODA process to include limited category and
experimental light sport aircraft. The goal is to promote safety by
making it simpler for pilots to receive elective or specialized
training relevant to aircraft they regularly fly, while also ensuring
effective training and maintenance standards in certain aircraft with
special airworthiness certificates broadly offered for training,
checking or testing, for compensation.
Overall, the FAA expects the training proposal to increase safety,
clarify and simplify regulatory requirements, reduce compliance costs
for operators, administrative costs for the FAA and
[[Page 41215]]
time and travel costs for pilots seeking elective or specialized
training, testing, or checking. The FAA evaluated costs and benefits
against the baseline established by the ``Notification of Policy for
Flight Training in Certain Aircraft,'' published in the Federal
Register July 12, 2021,\93\ as well as the recently passed 2023 NDAA,
and concluded the cost impacts are modest and the proposal poses no
novel legal or policy issues.
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\93\ 86 FR 36493 (Jul. 12, 2021), ``Notification of Policy for
Flight Training in Certain Aircraft.'' The FAA published this policy
statement to establish simplified procedures for owners and
operators of certain aircraft with special airworthiness
certificates to obtain prior approval from the FAA for training in
their own aircraft. The policy clarification also reaffirmed the
need for certain operators to obtain prior approval from the FAA in
the form of a LODA or exemption.
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4. Cost Savings
The FAA expects the proposal to generate cost-savings for owners or
operators of certain aircraft with special airworthiness certificates
who seek specialized training, testing, or checking in aircraft they
own or regularly operate. Under current rules, owners or operators of
limited and primary category aircraft must petition the FAA for an
exemption.\94\ The recently passed 2023 NDAA eliminated the LODA
requirement for owners and operators of experimental aircraft receiving
training in their own aircraft. The proposal in Sec. 91.326(a) would
codify the legislation with regard to LODAs for experimental aircraft
and eliminate the LODA requirement for owners and operators who receive
training, testing, or checking in their aircraft and pay compensation
for instruction. The elimination of the exemption requirements would
result in time savings for owners and operators who would no longer
need to apply for an exemption. Likewise, the proposal would reduce the
administrative costs at the FAA associated with evaluating and tracking
exemption petitions.
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\94\ Under 14 CFR 11.5, a petition for exemption is a request
from an individual or entity requesting relief from a current
regulation.
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5. Costs and Cost Savings for Operations Broadly Offered or Advertised
Under the proposed Sec. 91.326(b), if an operator of experimental
or limited category aircraft broadly offers or advertises flight
training, checking, and testing in these aircraft, the operator must
obtain prior approval from the FAA in the form of a LODA. To obtain a
LODA, the operator must submit an application to the FAA that includes
an aircraft-specific training program at least 60 days in advance of
training operations. Under the proposed change to Sec. 91.325,
operators of certain primary category aircraft will not require a LODA
and will no longer need to petition for an exemption to conduct
training, testing, or checking.
Importantly, the proposed LODA requirements under Sec. 91.326(b)
are similar to the current LODA requirements under Sec. 91.319(h) for
operators of certain experimental aircraft who broadly offer their
aircraft for training, testing, or checking. The FAA also proposes to
terminate current training LODAs within two years of the effective date
of a final rule. However, to ensure that all operations in which an
aircraft with a special airworthiness certificate is ``held out'' for
training, testing, or checking comply with the proposed requirements,
holders of current exemptions and LODAs permitting these training
operations will need to apply for a LODA under the proposed Sec.
91.326(b). The FAA proposes that these exemption and LODA holders
reapply within two years of the effective date of the final rule.
The FAA finds that the cost impacts of the LODA requirement for
training operations in experimental and limited category aircraft
``held out'' broadly for training will be small relative to the current
regulatory baseline. The costs and cost savings will vary across groups
affected by the regulation. Therefore, the FAA evaluated the cost
impacts separately for each of the identifiable interest groups
expected to realize costs or savings.
Experimental aircraft operators who currently hold LODAs under
Sec. 91.319(h) to offer their aircraft broadly for training will incur
the cost of reapplying for their LODA within two years of the effective
date of a final rule. The FAA estimates the reapplication requirement
would generate approximately $100,000 in total undiscounted costs
within the first two years following the effective date of a final
rule. This estimate includes the time costs to the approximately 180
current LODA holders \95\ who reapply and the FAA which must process
these applications.<SUP>96 97 98</SUP>
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\95\ Estimate of current LODA holders under Sec. 91.319(h)
obtained from FAA Aviation Safety (AVS) line of business. AVS
currently tracks active LODAs in FAA's Web-based Operations Safety
System (WebOPSS).
\96\ The FAA estimated 4 hours per application for the LODA
holder to reapply. The undiscounted applicant cost was calculated as
burden hours times average labor rate including benefits. The FAA
used an average wage including benefits of $63.25, which is the
average wage of flight instructors ($43.14) divided by the percent
of total employer costs of employee compensation represented by
wages (68.2%) to account for benefits (31.8%). Flight instructor
wages are the Bureau of Labor Statistics wage estimate for
commercial pilots employed at technical and trade schools. Accessed
Apr. 12, 2022, <a href="https://www.bls.gov/oes/current/oes532012.htm">https://www.bls.gov/oes/current/oes532012.htm</a>.
\97\ The undiscounted FAA cost was calculated as burden hours
times average labor rate including benefits. The FAA used an average
wage including benefits of $79.30, which is the wage of FG-13 Step 5
FAA aviation safety inspectors ($58.20) in the Washington-Baltimore-
Arlington Metro Area in 2022 plus benefits (36.25% of wages).
\97\FAA Order 8900.1, Flight Standards Management Information
System, Vol. 3, Chpt. 11, Sec. 1. Use of Aircraft Issued
Experimental Certificates in Flight Training for Compensation or
Hire.
\98\ The undiscounted FAA cost was calculated as burden hours
times average labor rate including benefits. The FAA used an average
wage including benefits of $79.30, which is the wage of FG-13 Step 5
FAA aviation safety inspectors ($58.20) in the Washington-Baltimore-
Arlington Metro Area in 2022 plus benefits (36.25% of wages).
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Under current guidance,\99\ LODA applicants already submit most of
the proposed requirements related to training plans, instructor
qualifications, maintenance, airworthiness, and record-keeping in order
to successfully obtain and maintain a LODA. For the most part, the cost
of reapplying will consist of the time to gather the relevant
information and submit the new application. Current LODA holders who
reapply successfully will gain the benefit of broadly offering their
aircraft for flight testing and checking. Current LODAs only allow
operators to broadly offer or advertise their aircraft for flight
training and do not permit checking or testing.
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\99\ FAA Order 8900.1, Flight Standards Management Information
System, Vol. 3, Chpt. 11, Sec. 1. Use of Aircraft Issued
Experimental Certificates in Flight Training for Compensation or
Hire.
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Similarly, the FAA expects minimal costs for operators of limited
category aircraft with exemptions to apply for a LODA prior to
expiration of their exemptions. Currently, there are fewer than five
active training exemptions for limited category aircraft. Moreover,
these exemptions normally only have a duration of two years and the FAA
expects most exemption holders to already meet most of the LODA
requirements outlined in the accompanying LODA Advisory Circular. The
cost will consist of the time to gather the required information and
submit a new LODA application.
For future LODA applicants who seek to broadly offer their
experimental or limited category aircraft for training, testing, or
checking, the proposal is expected to lower compliance costs. Although
the proposed LODA requirements are similar to current requirements for
operators who broadly offer aircraft holding certain special
airworthiness certificates for training,
[[Page 41216]]
the simplified regulatory structure and guidance in the accompanying
advisory circular is expected to make it easier for potential
applicants to understand requirements and submit a successful
application.
Overall, the FAA does not expect the proposal to significantly
increase administrative costs at the FAA. The FAA will incur costs
within the first two years of a final rule's effective date to process
LODA applications from the small subset of current holders of LODAs or
exemptions required to reapply under the proposal. However, in the long
run the streamlined regulatory structure and guidance is expected to
reduce the amount of time the FAA must spend obtaining additional
information from applicants and evaluating applications.
Finally, the clarification and simplification of the LODA process
for operators of aircraft with certain special airworthiness
certificates who advertise or broadly offer their aircraft for
training-might ultimately lower travel costs for pilots seeking the
types of supplemental and specialized training envisioned under the
proposed Sec. 91.326(b). If more operators successfully apply for
LODAs to broadly offer specialized training, pilots interested in
receiving this optional specialized training might not have to travel
as far to receive it. For example, the FAA recognizes that training in
an Experimental Light-Sport Aircraft (ELSA) is beneficial for pilots to
gain familiarity with the performance and handling qualities of other
light-sport aircraft and ultralights. Currently, there are some two-
seat aircraft that perform and handle similarly to an ultralight,
certificated as Special Light-Sport Aircraft (SLSA) available to
conduct training, but not available in sufficient numbers for
widespread availability. Under the proposal, the availability of ELSA
for training through LODAs might enable pilots of other light-sport
aircraft and ultralights to receive optional training without traveling
as far, consequently, reducing fuel costs incurred from travel, as well
as the time cost of travel.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980 (Pub. L. 96-354), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L.
111-240), requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term ``small entities''
comprises small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities,
section 605(b) of the RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required. The
certification must include a statement providing the factual basis for
this determination with a reasoned explanation.
While the proposed rule would likely impact a substantial number of
small entities, it would have a minimal economic impact. The PAO
proposal does not impose any new requirements or costs on small
entities. It fulfills the mandate in section 517 of the FAA
Reauthorization Act of 2018 that directs the FAA to allow pilots of
aircraft under the control of forestry and fire protection agencies
engaged in PAO to credit their flight time towards FAA civil regulatory
requirements. It enables pilots to log aeronautical experience and
recent flight experience accumulated during PAO and to credit this
experience toward FAA civil certificates and ratings.
The proposal also simplifies the regulations for operators of
certain aircraft with special airworthiness certificates to obtain a
LODA allowing them to broadly offer their aircraft for elective or
specialized flight training, testing, and checking. Relative to current
requirements to obtain a LODA or exemption for these training
operations, the proposal clarifies requirements and creates uniform
standards. The proposal also expands the types of aircraft eligible for
flight training, testing, and checking under a LODA. The only new cost
imposed by the proposal affects the holders of approximately 180 active
training LODAs who will be required to reapply within two years of the
effective date of a final rule. The FAA proposes to require these
operators to reapply to ensure compliance with the proposed
standardized LODA process. The FAA estimates that each current LODA
holder would spend approximately four hours to resubmit a LODA
application at an average cost of approximately $250 per LODA.\100\
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\100\ Cost per resubmitted LODA calculated as four hours times
the average labor rate, including benefits. The FAA used an average
wage including benefits of $63.25, which is the average wage of
flight instructors ($43.14) divided by the percent of total employer
costs of employee compensation represented by wages (68.2%) to
account for benefits (31.8%). Flight instructor wages are the Bureau
of Labor Statistics wage estimate for commercial pilots employed at
technical and trade schools. Accessed Apr. 12, 2022, <a href="https://www.bls.gov/oes/current/oes532012.htm">https://www.bls.gov/oes/current/oes532012.htm</a>.
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The draft LODA advisory circular, published concurrently with this
proposed rule, provides guidance, sample documentation, and training
materials to fulfill Recommendation A-12-035 of the National
Transportation Safety Board (NTSB). The FAA expects the LODA advisory
circular to clarify the application process, thereby making it easier
for potential applicants to understand requirements and submit a
successful application.
If an agency determines that a rulemaking will not result in a
significant economic impact on a substantial number of small entities,
the head of the agency may so certify under section 605(b) of the RFA.
Therefore, the FAA proposes to certify that the rule will not have a
significant economic impact on a substantial number of small entities.
The FAA welcomes comments on the basis of this certification.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective such as the protection of safety and does not operate in a
manner that excludes imports, that meet this objective. The statute
also requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
The FAA has assessed the potential effect of this proposed rule and
determined that the proposal responds to a domestic safety objective.
The FAA has determined that this proposed rule is not considered an
unnecessary obstacle to trade.
[[Page 41217]]
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $165 million in lieu of $100
million. This proposed rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
As part of this rulemaking action, the FAA is also requesting OMB
approval for a new one-time information collection request. As required
by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has
submitted these proposed information collection revisions to OMB for
its review.
Summary: The proposed rule creates Sec. 91.326(b) which
establishes unified requirements for operators who broadly offer
certain aircraft with special airworthiness certificates for flight
training, testing, or checking to obtain prior approval from the FAA in
the form of a LODA. Through the LODA process the FAA provides oversight
of operators who advertise or broadly offer certain aircraft with
special airworthiness certificates for elective and specialized flight
training, testing, and checking. The advisory circular published
concurrently with this proposed rule provides guidance, sample
documentation, and training materials to fulfill Recommendation A-12-
035 of the National Transportation Safety Board (NTSB). The FAA expects
that the proposed Sec. 91.326(b) and advisory circular will ensure
consistency and clarify the application process, thereby making it
easier for potential applicants to understand requirements and submit a
successful application.
Under the current Sec. 91.319(h), operators of certain
experimental aircraft already have the opportunity to apply for LODAs
permitting them to advertise or broadly offer their aircraft for flight
training, testing, or checking in exchange for compensation that
includes use of the aircraft. The proposed Sec. 91.326(b) extends the
opportunity to apply for a LODA to operators of aircraft not currently
eligible for LODAs under Sec. 91.319(h). Previously ineligible
aircraft that would be eligible for operations under a LODA in the
proposed Sec. 91.326(b) include experimental light-sport aircraft
(ELSA) and limited category aircraft. Under current rules, operators of
primary category and limited category aircraft are required to petition
the FAA for an exemption \101\ to broadly offer their aircraft for
flight training, testing or checking. Under proposed changes to Sec.
91.325 operators of primary category aircraft will be permitted to
conduct training operations without obtaining a LODA or exemption.
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\101\ Under 14 CFR 11.5, a petition for exemption is a request
from an individual or entity requesting relief from a current
regulation. The FAA expects that the new guidance associated with
the LODA process will reduce burden hours relative to petitioning
for exemptions.
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In addition to extending LO
[…truncated; see source link]Indexed from Federal Register on June 23, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.