Rule2024-22009
Public Aircraft Logging of Flight Time, Training in Certain Aircraft Holding Special Airworthiness Certificates, and Flight Instructor Privileges
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Published
October 2, 2024
Effective
December 2, 2024
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
As directed by the FAA Reauthorization Act of 2018, the FAA will allow pilots conducting public aircraft operations to credit their flight time towards FAA civil regulatory requirements. Additionally, consistent with the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, this final rule will amend the operating rules for experimental aircraft to permit certain flight training, testing, and checking in these aircraft without a letter of deviation authority. As directed in the FAA Reauthorization Act of 2024, the same relief will be extended to certain flight training, testing, and checking in limited category, primary category, and experimental light sport aircraft. This final rule also revises 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 changes will clarify existing regulatory requirements, align the regulations with current industry practice, and ensure compliance with the FAA Reauthorization Acts of 2018 and 2024 and the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023.
Full Text
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[Federal Register Volume 89, Number 191 (Wednesday, October 2, 2024)]
[Rules and Regulations]
[Pages 80310-80342]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22009]
[[Page 80309]]
Vol. 89
Wednesday,
No. 191
October 2, 2024
Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Part 1, et al.
Public Aircraft Logging of Flight Time, Training in Certain Aircraft
Holding Special Airworthiness Certificates, and Flight Instructor
Privileges; Final Rule
Federal Register / Vol. 89, No. 191 / Wednesday, October 2, 2024 /
Rules and Regulations
[[Page 80310]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 1, 11, 61, and 91
[Docket No. FAA-2023-1351; Amdt. Nos. 1-77, 11-68, 61-156, 91-378]
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: Final rule.
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SUMMARY: As directed by the FAA Reauthorization Act of 2018, the FAA
will allow pilots conducting public aircraft operations to credit their
flight time towards FAA civil regulatory requirements. Additionally,
consistent with the James M. Inhofe National Defense Authorization Act
for Fiscal Year 2023, this final rule will amend the operating rules
for experimental aircraft to permit certain flight training, testing,
and checking in these aircraft without a letter of deviation authority.
As directed in the FAA Reauthorization Act of 2024, the same relief
will be extended to certain flight training, testing, and checking in
limited category, primary category, and experimental light sport
aircraft. This final rule also revises 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 changes will clarify
existing regulatory requirements, align the regulations with current
industry practice, and ensure compliance with the FAA Reauthorization
Acts of 2018 and 2024 and the James M. Inhofe National Defense
Authorization Act for Fiscal Year 2023.
DATES: Effective December 2, 2024.
ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
to Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: Erin Cappel, General Aviation and
Commercial Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone (202) 267-1100; email <a href="/cdn-cgi/l/email-protection#5336213a3d7d30322323363f133532327d343c25"><span class="__cf_email__" data-cfemail="97f2e5fef9b9f4f6e7e7f2fbd7f1f6f6b9f0f8e1">[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(s)
PIC: Pilot-in-command
SIC: Second-in-command
SLSA: Special Light-Sport Aircraft
VFR: Visual Flight Rules
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Changes Made in This Final Rule
C. Summary of the Cost and Benefits
II. Authority for the Rulemaking
III. Background
A. Summary of the NPRM
B. Overview of Comments Received
IV. Discussion of Comments and the Final Rule
A. Logging Flight Time in Public Aircraft Operations (Sec.
61.51)
B. Revision of the Definition of ``Public Aircraft'' (Sec. 1.1)
C. Exceptions to Recent Flight Experience for Pilot in Command
(Sec. 61.57(e))
D. Flight Instructor Privileges (Sec. Sec. 61.193 and 61.413)
E. Flight Training is Carrying a Person for Compensation or Hire
F. New Definition of Passenger (Sec. 61.1(b)) and Related
Changes (Sec. 61.57)
G. Experimental Light-Sport Aircraft (Sec. 91.319(e))
H. Exception To Operating Certain Aircraft for the Purposes of
Flight Training, Flightcrew Member Checking, or Flightcrew Member
Testing (Sec. 91.326)
I. Miscellaneous Issues in Part 91
J. Severability
V. Regulatory Notices and Analyses
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
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 13175, Consultation and Coordination With
Indian Tribal Governments
C. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
D. Executive Order 13609, Promoting International Regulatory
Cooperation
VII. Additional Information
A. Electronic Access and Filing
B. Small Business Regulatory Enforcement Fairness Act
I. Executive Summary
A. Purpose of the Regulatory Action
As directed by section 517 of the FAA Reauthorization Act of 2018
(Pub. L. 115-254), this final rule allows pilots conducting public
aircraft operations (PAO) under Title 49 of the United States Code (49
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 \1\ under direct operational control of forestry and fire
protection agencies,\2\ this final rule will permit all PAO to be
eligible for logging of flight time. Moreover, this final rule expands
the regulatory framework to allow pilots serving in PAO as second-in-
command (SIC) to log flight time under certain circumstances.
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\1\ The FAA uses the term ``public aircraft operation'' (PAO) to
refer to public aircraft operations in general. For purposes of this
rulemaking document, uses the abbreviation ``PAO'' to refer to both
the singular and plural of those operations. The FAA considers the
two terms to be synonymous.
\2\ As discussed elsewhere in this document, the FAA notes that
section 826 of the FAA Reauthorization Act of 2024 (Pub. L. 118-63)
requires that, notwithstanding any other provision of law, aircraft
under the direct operational control of forestry and fire protection
agencies are eligible to log pilot flight times, if the flight time
was acquired by the pilot while engaged on an official forestry or
fire protection flight, in the same manner as aircraft under the
direct operational control of a Federal, State, county, or municipal
law enforcement agency. Section 826 further stated that this
provision shall be applied as if enacted on October 5, 2018. As
noted, this final rule meets, and expands upon, the requirements of
section 826.
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This final rule clarifies recent flight experience requirements and
authorized flight training activities under part 61. This final rule
adds Sec. 61.57(e)(5) to codify an exception that would enable a
person receiving flight training to act as pilot-in-command (PIC) in
certain circumstances, 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 adds ``maintaining or improving
skills for certificated pilots'' to the list of flight instructor
privileges 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. Finally, this final rule revises the definition of
``public aircraft'' to align with the revised definition of 49 U.S.C.
40125(a)(2), which was amended by section 923 of the FAA
Reauthorization Act of 2024.
Furthermore, this final rule amends part 91 operating rules to
explicitly set forth prohibited operations and create
[[Page 80311]]
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 consistent
with section 5604 of the National Defense Authorization Act (NDAA).
This final rule also removes the requirement for owners (and certain
persons affiliated with owners) to obtain a letter of deviation
authority (LODA) to accomplish flight training in their aircraft, as
directed by section 814 of the FAA Reauthorization Act of 2024, and to
clarify the general prohibition on operating aircraft with certain
special airworthiness certificates while carrying persons or property
for compensation or hire. Additionally, this final rule expands certain
flight training, testing, and checking abilities in limited category,
primary category, and experimental light sport aircraft. The FAA
anticipates that the changes will provide greater access to specialized
training in aircraft with special airworthiness certificates.
B. Changes Made in This Final Rule
After considering comments on the notice of proposed rulemaking
(NPRM) \3\ provided by the public, this final rule implements several
changes from what was proposed in the NPRM. Table 1 provides a brief
summary of all regulatory changes associated with this rulemaking,
including those changes from the NPRM to final rule. The changes are
discussed in more detail in Section IV of this preamble.
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\3\ See Public Aircraft Logging of Flight Time, Training in
Certain Aircraft Holding Special Airworthiness Certificates, and
Flight Instructor Privileges, 88 FR 41194 (June 23, 2023).
Table 1--Summary of Regulatory Text Changes
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Regulatory citation (14
Provision CFR) Proposed action Final rule action
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Definitions.......................... Sec. 1.1............. No proposed changes.... Revises the definition
of ``public
aircraft''.
Applicability and definitions........ Sec. 61.1(b)......... No proposed changes.... Amends Sec. 61.1(b)
to define
``passenger'' as any
person on board an
aircraft other than a
crewmember, FAA
personnel,
manufacturer personnel
required for type
certification, or a
person receiving or
providing flight
training, checking, or
testing as authorized
by part 61.
Pilot logbooks....................... Sec. 61.51(f)(4)..... Clarifies that a person Adopted as proposed.
designated as second-
in-command (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.
Sec. 61.51(f)(4)(i).. Specifies that SIC time Adopted as proposed.
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.
Sec. 61.51(f)(4)(ii). Delineates that an Modifies the text to
applicant for an air specify that an ATP
transportation pilot applicant only needs a
(ATP) certificate who limitation added to
logs SIC time under their ATP certificate
Sec. 61.51(f)(4) is in accordance with
issued an ATP ICAO requirements if
certificate with a that applicant logs
limitation. second in command time
in an aircraft that is
not type certificated
for two pilots; adds
reference to Sec.
61.161.
Sec. 61.51(j)(4)..... Allows logging of Adopted as proposed.
flight time for pilots
engaged in any PAO in
accordance with 49
U.S.C. 40102(a)(41)
and 40125.
Recent flight experience: Pilot in Sec. 61.57(a)(1) and No proposed changes.... Revises ``passengers''
command. (b)(1). to ``persons'' due to
new Sec. 61.1
definition of
``passenger.''
Sec. 61.57(e)(5)..... Provides an exception Adopted as proposed.
to Sec. 61.57(a) and
(b) enabling a pilot
to regain recent
flight experience with
a flight instructor on
board.
Sec. 61.57(e)(6)..... No proposed change..... Adds an exception to
Sec. 61.57(a) and
(b) to harmonize with
Sec. 61.47(c).
Aeronautical experience: Airplane Sec. 61.159(e)....... Allows a pilot to Adopted as proposed.
category rating. credit SIC time logged
under PAO toward the
total time for an ATP
certificate.
Aeronautical experience: Rotorcraft Sec. 61.161(d)....... Allows a pilot to Adopted as proposed.
category and helicopter class rating. credit SIC time logged
under PAO toward the
total time for an ATP
certificate.
Flight Instructor Privileges......... Sec. Sec. 61.193(a) Clarifies that, within Revises the
and 61.413(a). the limits of their introductory paragraph
certificates, of Sec. 61.413(a) to
authorized flight mirror the language
instructors may provided in Sec.
conduct ground and 61.193(a) to ensure
flight training, and consistency. Otherwise
certain checking adopted as proposed.
events, in addition to
issuing endorsements.
Sec. Sec. Clarifies that flight Adopted as proposed.
61.193(a)(7) and instructors are
61.413(a)(6). authorized to conduct
certain specialized
and elective training.
Sec. Sec. 61.193(c) Clarifies that the Adopted as proposed.
and 61.413(c). privileges afforded to
authorized flight
instructors under
these provisions do
not permit operations
that would require an
air carrier or
operating certificate
or specific
authorization from the
Administrator.
Limited category civil aircraft: Sec. 91.315.......... Adds new Sec. Adopted as proposed.
Operating limitations. 91.315(a) through (d)
to clarify operations
that may not be
conducted while
carrying persons or
property for hire and
directs stakeholders
to new Sec. 91.326.
[[Page 80312]]
Aircraft having experimental Sec. 91.319(a)....... Revises the Adopted as proposed.
certificates: Operating limitations. introductory text to
include a reference to
Sec. 91.326.
Sec. 91.319(a)(2).... Revises the broad Adopted as proposed.
language in Sec.
91.319(a)(2) regarding
the operation of
experimental aircraft
carrying persons or
property for
compensation or hire
to further clarify its
intent.
Sec. 91.319(d)(3).... Replaces ``air traffic Adopted as proposed.
control (ATC)'' with
``control tower.''.
Sec. 91.319(e), Removes the date <bullet> Amends the
(e)(1), and (e)(2). restriction on flight introductory text by
training in these directly referencing
aircraft and cross- light-sport aircraft
references proposed and moves the
Sec. 91.326. exception language
into paragraph (e)(1).
<bullet> Modifies Sec.
91.319(e)(2) by
directly referencing
light-sport aircraft.
<bullet> Adds language
to be inclusive of
aircraft certificated
under Sec. 21.191(i)
for use in flight
training.
Sec. 91.319(f)....... Moves the exception Adopted as proposed.
language into new
paragraph (f)(1). Adds
new paragraph (f)(2)
to allow solo flights
in accordance with a
training program
included as part of
the deviation
authority specified
under Sec. 91.326(b).
Sec. 91.319(f)(2).... Adds language to permit Adopted as proposed.
training in certain
experimental light-
sport aircraft for
compensation or hire
through existing
deviation authority in
accordance with
proposed Sec.
91.326(b).
Sec. 91.319(h)....... Removes the current Adopted as proposed.
deviation authority
and reserves the
paragraph.
Primary Category Airworthiness Sec. 91.325(a)....... Adds new paragraphs Adopted as proposed.
Certificates. (a)(1) through (4) to
clarify operations
that may not be
conducted while
carrying persons or
property for hire.
Sec. 91.325(b)....... Adds a reference to Corrects reference to
Sec. 91.326(a) to Sec. 91.326(c)
the introductory instead of Sec.
language. Enables 91.326(a) and
primary category otherwise adopted as
aircraft to be used proposed.
for flight training,
checking, and testing
without the need to
obtain deviation
authority.
Sec. 91.325(c)....... Adds new Sec. Adopted as proposed.
91.326(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.
Exception to operating certain Sec. 91.326(a)....... Adds new Sec. 91.326 <bullet> Adds the title
aircraft for the purposes of flight to provide who may ``General.''
training, flightcrew member receive and provide <bullet> Modifies the
checking, or flightcrew member flight training, language to specify
testing. checking, and testing that, notwithstanding
without deviation the prohibitions in
authority and to Sec. Sec. 91.315,
specify when deviation 91.319(a), and 91.325,
authority is required a person may conduct
for these operations. flight training,
checking, or testing
in a limited category
aircraft, experimental
aircraft, or primary
category aircraft
under the provisions
of this section.
<bullet> Moves the Sec.
91.326(a) operations
not requiring a LODA
to Sec.
91.326(c)(1).
Exception to Operating Certain Sec. 91.326(a)(1).... Prohibits the Redesignates the
Aircraft for Compensation or Hire. authorized instructor proposed language as
from providing both Sec.
the training and the 91.326(c)(1)(i).
aircraft.
Sec. 91.326(a)(2).... Prohibits any person Redesignates the
from broadly offering proposed language as
the aircraft as Sec.
available for the 91.326(c)(1)(ii).
activity.
Sec. 91.326(a)(3).... Specifies that no Redesignates the
person would be proposed language as
permitted to receive Sec.
compensation for use 91.326(c)(1)(iii).
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.
Sec. 91.326(b)....... Provides that any Changes proposed title
person who wants to to ``Operations
conduct flight requiring a letter of
training, checking, or deviation authority.''
testing in limited Removes the reference
category and to Sec. 91.326(a).
experimental aircraft
outside the
restrictions and
limitations of
proposed Sec.
91.326(a) and (c) may
apply for deviation
authority.
Sec. 91.326(b)(1).... Clarifies that no Adopted as proposed.
person may operate
under this section
without a LODA.
Sec. 91.326(b)(2).... Enables the FAA to Adds language to Sec.
cancel or amend a LODA 91.326(b)(2) to
if it determines that memorialize the
the deviation holder Administrator's
has failed to comply authority to deny an
with the conditions application for a LODA
and limitations or at if it would not be in
any time if the the interest of safety
Administrator or is unnecessary.
determines that the
deviation is no longer
necessary or in the
interest of safety.
Sec. 91.326(b)(3)(i) Enumerates the items an Removes Sec.
through (ix). applicant would be 91.326(b)(3)(vi) and
required to include in otherwise adopted as
their request for proposed.
deviation authority.
[[Page 80313]]
Sec. 91.326(b)(4).... Allows the Adds certain conditions
Administrator to and limitations in new
continue to prescribe Sec. 91.326(b)(4)(i)
additional conditions through (viii).
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.
Sec. 91.326(b)(5).... Limits the persons Allows up to two
permitted to be on trainee observers to
board an aircraft be carried in
during operations operations conducted
under a LODA to under a LODA, provided
authorized flight the carriage is not
instructor, designated prohibited by any
examiner, person other regulation, the
receiving flight observer is enrolled
training or being in in a LODA training
checked or tested, or course for the same
persons essential for aircraft, and the
the safe operation. observation takes
place from a
forwardmost observer
seat with an
unobstructed view of
the flightdeck.
Sec. 91.326(b)(6).... Specifies that the Adopted as proposed.
Administrator may
limit the types of
training, testing, and
checking authorized
under this deviation
authority.
Sec. 91.326(c)....... Instructs holders of <bullet> Redesignates
LODAs issued under proposed Sec.
Sec. 91.319(h) on 91.326(c) as Sec.
LODA validity and 91.326(d), with no
expiration at the time substantive revisions.
of publication of the <bullet> Adds Sec.
final rule. 91.326(d), titled
``Previously issued
letters of deviation
authority.''
<bullet> New Sec.
91.326(c), titled
``Operations not
requiring a letter of
deviation authority,''
provides introductory
language on operations
that may be conducted
without a LODA (see
previously denoted
revisions to Sec.
91.326(a)).
Sec. 91.326(c)(2).... No proposed change..... Adds new Sec.
91.326(c)(2) to
specify that a person
may operate a limited
category aircraft,
experimental aircraft,
or primary category
aircraft to conduct
flight training,
checking, or testing
without a LODA if no
person provides and no
person receives
compensation for the
flight training,
checking, or testing,
or for the use of the
aircraft.
Aircraft having a special Sec. 91.327(a)(2).... Adds to the existing Adopted as proposed.
airworthiness certificate in the explicit permission
light-sport category: Operating for flight training
limitations. that a person may
conduct checking and
testing.
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C. Summary of the Costs and Benefits
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 in
the NPRM and presents the same analysis in this final rule. The changes
from the NPRM to the final rule have minimal economic effects and do
not change the results of the analysis. The final provisions related to
PAO will impose no new costs, and the FAA determines the rule will
reduce the costs for pilots conducting PAO to maintain their civil
certificates and ratings.\4\ Based on calculations presented in the
Paperwork Reduction Act (PRA) section, the FAA estimates that the
provisions related to training, testing, and checking will impose
approximately $100,000 in total one-time costs (undiscounted) split
roughly evenly between current LODA holders and the FAA over a period
of two years. These costs stem from the requirement that current LODA
holders who broadly offer certain aircraft with special airworthiness
certificates for training reapply within two years of the effective
date of this final rule.\5\ However, the FAA expects 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 concludes that this rule will enhance safety with
minimal impact on cost.
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\4\ 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 final
rule. See ``How to Become a Government Pilot'' in Flying Magazine by
James Wynbrandt, Dec. 13, 2017. Available at: <a href="http://www.flyingmag.com/how-to-become-government-pilot/">www.flyingmag.com/how-to-become-government-pilot/</a> Last accessed Jul. 22, 2022.
\5\ This requirement is discussed in further detail in section
V. of this preamble.
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II. Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is found in
title 49 of the United States Code. Subtitle I, section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes the scope of the FAA's authority in more detail.
This rulemaking is promulgated 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 final rule 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 codifies 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
[[Page 80314]]
the FAA.\6\ This final rule implements those explicit Congressional
directions.
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\6\ James M. Inhofe National Defense Authorization Act for
Fiscal Year 2023, Public Law 117-263, 136 Stat. 2395, Section 5604
(Dec. 23, 2022).
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Finally, this final rule responds to several provisions of the FAA
Reauthorization Act of 2024. As noted previously, this final rule
implements the public aircraft logging provisions of section 826
regarding forestry and firefighting flight time logging, as well as the
provision in that section that, within 180 days of the date of
enactment of the FAA Reauthorization Act of 2024, the Administrator of
the FAA shall make the regulatory changes necessary to implement
section 826(a).\7\
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\7\ FAA Reauthorization Act of 2024, Public Law 118-63, 138
Stat. 1332, Section 826 (b) (May 16, 2024).
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This rule also responds to section 814 of the FAA Reauthorization
Act of 2024 regarding letter of deviation authority.\8\ Section 814
provides that a flight instructor, registered owner, lessor, or lessee
of a covered aircraft shall not be required to obtain a letter of
deviation authority from the Administrator to allow, conduct, or
receive flight training, checking, and testing in such aircraft if the
flight instructor is not providing both the training and the aircraft;
no person advertises or broadly offers the aircraft as available for
flight training, checking, or testing; and no person receives
compensation for use of the aircraft for a specific flight during which
flight training, checking, or testing was received, other than expenses
for owning, operating, and maintaining the aircraft. For purposes of
section 814, a covered aircraft means an experimental aircraft, a
limited category aircraft, and a primary category aircraft.
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\8\ FAA Reauthorization Act of 2024, Section 814.
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While not proposed in the NPRM, this final rule revises the
definition of ``public aircraft'' in 14 CFR 1.1 to align with the
revised definition of ``public aircraft'' in 49 U.S.C. 40125(a)(2), as
amended by section 923 of the FAA Reauthorization Act of 2024.\9\ In
section 923, Congress amended the definition of ``public aircraft'' in
49 U.S.C. 40125 as a matter of law. As the FAA has no discretion but to
conform the definition of ``public aircraft'' in 14 CFR 1.1 to the
amended definition in 49 U.S.C. 40125, the FAA finds prior notice and
the opportunity for public comment on this definition revision
unnecessary under the Administrative Procedure Act, 5 U.S.C. 553(b)(B).
Therefore, the FAA finds good cause to forgo prior notice and the
opportunity for public comment regarding this definition change.
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\9\ FAA Reauthorization Act of 2024, Section 923.
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III. Background
The NPRM published on June 23, 2023,\10\ and the LODA advisory
circular (AC) was added to the docket on June 29, 2023. The public
comment period for the NPRM and AC was initially scheduled to close on
August 22, 2023. However, in response to a request from the
Experimental Aircraft Association for additional time to comment, the
FAA extended the comment period until September 21, 2023, to provide
the public additional time to thoughtfully analyze and respond to the
NPRM and AC.\11\ A brief overview of the NPRM follows.
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\10\ Public Aircraft Logging of Flight Time, Training in Certain
Aircraft Holding Special Airworthiness Certificates, and Flight
Instructor Privileges, 88 FR 41194 (Jun. 23, 2023). Corrected at 88
FR 44744 (Jul. 14, 2023).
\11\ Public Aircraft Logging of Flight Time, Training in Certain
Aircraft Holding Special Airworthiness Certificates, and Flight
Instructor Privileges NPRM Extension of Comment Period, 88 FR 55959
(Aug. 17, 2023).
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A. Summary of the NPRM
1. Logging Flight Time in Public Aircraft Operations
Prior to this rule, only pilots conducting PAO for official law
enforcement activities could log flight time under Sec. 61.51(j)(4).
However, section 517 of the FAA Reauthorization Act of 2018, Public Law
115-254 directed 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 such
operations are conducted as PAO. Notwithstanding the limited scope of
section 517, in the NPRM, the FAA proposed 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).\12\
Additionally, previous second-in-command (SIC) logging regulations did
not address aircraft used in PAO that do not also hold airworthiness
certificates issued by the FAA. The NPRM proposed to explicitly allow
the logging of SIC time during PAO, with certain limitations, to
encourage safety and promote consistency with the regulated
community.\13\
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\12\ 88 FR 41194 at 41196.
\13\ Id. at 41196-41198.
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2. Exceptions to Recent Flight Experience for Pilot-in-Command
Section 61.57 contains the recent flight experience requirements to
maintain privileges to act as PIC under certain scenarios, including
requirements to complete takeoffs and landings to continue to act as
PIC of a flight that is carrying passengers. The FAA had previously
issued legal interpretations indicating certain operations related to
obtaining recent flight experience with an instructor on board are
already permissible under existing regulations, notwithstanding the
prohibition on passenger-carrying flights. The FAA determined the plain
text of its regulations did not support the conclusions in these
interpretations. Therefore, the NPRM rescinded the conflicting legal
interpretations and proposed 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 recent flight experience requirements.\14\
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\14\ Id. at 41198, 41199.
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3. Flight Instructor Privileges
Sections 61.193 and 61.413 set forth the privileges of flight
instructors and sport pilot instructors, respectively. During the
course of this rulemaking, the FAA identified a need to clarify the
types of operations that would be considered within the scope of a
flight instructor's privileges in accordance with part 61. Although the
FAA has historically encouraged flight instructors to conduct certain
types of training operations (e.g., transition training), Sec. Sec.
61.193 and 61.413 could be read to restrict such training. Therefore,
in the NPRM, the FAA proposed clarifying amendments to Sec. Sec.
61.193 and 61.413 to conform the regulations with current FAA policy
and industry practice by explicitly permitting authorized flight
instructors to conduct ground and flight training, and certain checking
events, in addition to issuing endorsements.\15\
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\15\ Id. at 41199-41201.
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4. Flight Training Is Carrying a Person for Compensation or Hire;
Exception To Operating Certain Aircraft for the Purposes of Flight
Training, Flightcrew Member Checking, or Flightcrew Member Testing
Previously, Sec. Sec. 91.315, 91.319, and 91.325 generally
prohibited flight training, checking, and testing when compensation is
provided. In 2020, the FAA issued Warbird Adventures, Inc. an emergency
cease and desist order restricting the operation of aircraft that held
special airworthiness certificates carrying people for compensation or
hire.\16\ The operator brought a petition for review of the emergency
order before the court.\17\ On April 2, 2021, the court
[[Page 80315]]
dismissed the petition for review of the cease and desist order.\18\
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 (notably, the same prohibitory
language exists in Sec. 91.325 for primary category aircraft). As a
result of this court case, in the NPRM, the FAA proposed to clarify
prohibitory language and to explicitly enable flight training,
checking, and testing under certain conditions in aircraft holding
special airworthiness certificates.
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\16\ Emergency Cease and Desist Order Issued by the Federal
Aviation Administration (July 28, 2020).
\17\ 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).
\18\ 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).
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In the wake of the court ruling, the James M. Inhofe National
Defense Authorization Act for 2023 (2023 NDAA) was adopted. The 2023
NDAA 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).
Likewise, section 814 of the FAA Reauthorization Act of 2024 (Pub. L.
118-63) directed that, under certain conditions, flight training,
testing, and checking in limited, experimental, and primary category
aircraft do not require a LODA from the FAA. The NPRM proposed to
modify Sec. Sec. 91.315, 91.319, and 91.325 to clarify prohibited
operations, as well as direct stakeholders to a newly proposed
regulation, Sec. 91.326, that provided instruction on conducting
certain operations for compensation or hire. The FAA also proposed to
implement related miscellaneous amendments pertaining 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.\19\
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\19\ 88 FR 41194 at 41201-41213.
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5. Experimental Light-Sport Aircraft
Lastly, on October 24, 2018, the FAA published an NPRM titled
``Removal of the Date Restriction for Flight Training in Experimental
Light Sport Aircraft.'' \20\ For the reasons provided in the document
withdrawing the ``Removal of the Date Restriction for Flight Training
in Experimental Light Sport Aircraft'' NPRM,\21\ the FAA withdrew the
NPRM and, instead, developed this rule to resolve the discrepancy more
broadly for all experimental aircraft.
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\20\ Removal of the Date Restriction for Flight Training in
Experimental Light Sport Aircraft, 83 FR 53590 (Oct. 24, 2018).
\21\ Removal of the Date Restriction for Flight Training in
Experimental Light Sport Aircraft; Withdrawal, 88 FR 41045 (June 23,
2023).
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B. Overview of Comments Received
The FAA received 22 comments to the NPRM.\22\ Most of the comments
were from advocacy or industry groups such as the Air Line Pilots
Association, International (ALPA), the Aircraft Owners and Pilots
Association (AOPA), the Association of Professional Warbird Operators,
Inc. (APWO), the Commemorative Air Force (CAF), the Experimental
Aircraft Association (EAA),\23\ and the Helicopter Association
International (HAI).\24\ The Champaign Aviation Museum (CAM) and
individual members of the public also commented on the docket. The
general disposition of the comments favored proceeding with the NPRM,
albeit with suggested changes.
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\22\ Docket No. FAA-2023-1351. Of the 22 comments, two comments
were duplicates and one commenter submitted four separate comments.
Therefore, sixteen discrete commenters provided comments on the
docket.
\23\ The FAA notes that both the Association of Professional
Warbird Operators and the Commemorative Air Force commented to
indicate support of EAA's comments and recommended edits to the
NPRM; additionally, EAA references Warbirds of America in their
comment submission as a division of EAA representing pilots, owners,
restorers, and enthusiasts of former military aircraft. For brevity,
a reference to EAA should be understood to have the support of both
of these organizations, as well as Warbirds of America as a division
of EAA, rather than citing each of the organizations in every
comment summary of this preamble.
\24\ The FAA notes that on February 26, 2024, the commenter
announced the renaming of Helicopter Association International (HAI)
to Vertical Aviation International (VAI).
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IV. Discussion of Comments and the Final Rule
A. Logging Flight Time in Public Aircraft Operations (Sec. 61.51)
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) 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) a public aircraft under the direct operational
control of a Federal, State, county, or municipal law enforcement
agency, if the flight time was acquired by the pilot while engaged on
an official law enforcement flight for a Federal, State, county, or
municipal law enforcement agency. The FAA proposed to amend the list of
qualified operations in 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.
Relatedly, the SIC logging requirements in Sec. 61.51 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 or through an approved SIC pilot professional
development program (PDP).\25\ To adequately address aircraft used in
PAO that do not necessarily meet these parameters, the FAA also
proposed to add Sec. 61.51(f)(4) to clarify that a person designated
as second-in-command (SIC) by a government entity may log SIC time
during PAO if the aircraft used is 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.
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\25\ 14 CFR 61.51(f). As explained in the NPRM, under current
Sec. 61.51(d), an assigned second pilot in a PAO does not meet the
requirements to log SIC time (see 88 FR 41194 at 41197).
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As discussed in the NPRM,\26\ the FAA finds that airline transport
pilot (ATP) hours are largely related to exposure and experience
through time building, 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 and foundational knowledge. Therefore, the FAA proposed to
add 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. Additionally, because 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, the NPRM proposed to add Sec.
61.51(f)(4)(ii) to delineate that an applicant for an ATP certificate
who logs SIC time under
[[Page 80316]]
Sec. 61.51(f)(4) would be issued an ATP certificate with a limitation.
Specifically, the certificate's limitation would read, ``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.
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\26\ 88 FR 41194 at 41197.
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Finally, the FAA proposed to amend Sec. Sec. 61.159(e) and
61.161(d) to reference Sec. 61.51(f)(4) to align the proposed
revisions to Sec. 61.51(f) with requirements applicable to pilots who
apply for an ATP certificate with an ICAO limitation. This proposed
revision to the aeronautical experience requirements of Sec. Sec.
61.159 and 61.161 would reference Sec. 61.51(f)(4) to allow a pilot to
credit SIC time logged under PAO toward the total time for an ATP
certificate.
1. Summary of the Comments
The FAA received six comments on Sec. 61.51 as proposed in the
NPRM. Three of the six commenters, AOPA, HAI, and an individual,
generally supported the proposed revisions to Sec. 61.51 without
suggested changes. ALPA supported the proposal with suggested changes.
One individual commenter opposed the proposal, and one individual's
comment was out of the scope of this rulemaking.
HAI noted that the proposed changes would permit industry to track
pilot experience more accurately without any detriment to safety. ALPA
supported FAA's proposal to amend Sec. 61.51(j) and stated that the
amendment would not negatively impact safety or training. ALPA stated
that the technical skill and proficiency required to operate aircraft
in these types of operations require even higher training and
certification standards than airborne law enforcement operations.
However, ALPA expressed its concern that some agencies' training and
certification standards may not be as rigorous as those of others. In
this regard, ALPA clarified that its support is contingent on the final
rule stipulating that PAO operators have formalized and documented
training and certification programs for pilots operating under PAO to
log time toward certificates, ratings, and experience.
In addition, ALPA stated that it conditionally supported the
proposed requirements for logging SIC time under PAO, emphasizing that
SIC time should only be logged in large or turbojet powered multi-
engine airplanes that are flown under PAO that do not also hold
airworthiness certificates issued by the FAA. ALPA agreed that the
proposed SIC provision would improve safety in the national airspace
system (NAS) and is consistent with several National Transportation
Safety Board (NTSB) recommendations. However, ALPA recommended that PAO
operators establish formalized command and mentoring training
requirements for their PICs for a second pilot to be able to log SIC
time. ALPA noted that such a suggestion is consistent with the
flightcrew and PIC requirements of Sec. 135.99(c)(4). ALPA also
supported the FAA's proposal to limit crediting of SIC time toward the
ATP certificate only.
One individual commenter opposed the proposed update to Sec.
61.51(j)(4). The commenter stated that permitting all PAO pilots to log
flight time under Sec. 61.51(j)(4) would include PAOs operating non-
certificated aircraft, military surplus aircraft, Law Enforcement
Support Office (LESO) aircraft, and Federal Excess Purchasing Program
(FEPP) aircraft. The commenter explained that this inclusion would
likely negatively impact safety, though they did not explain how, and
recommended that public aircraft operators have formalized, documented
training and certification programs for pilots operating under PAO to
log time toward certificates, ratings, and experience. The commenter
emphasized that the FAA must be able to certify the aircraft are
maintained and flown to the current military or aircraft manufacturer
standard for that aircraft.
Additionally, an individual commenter stated that since the NPRM
would allow SIC time for PAO aircraft, the FAA should also reexamine
allowing Naval Flight Officers (NFO) and equivalent flying officers of
other military services to log as SIC time. The commenter noted that
NFOs occupied the right seat in aircraft equipped with full
instrumentation and performed all pilot monitoring duties, navigated,
assisted with checklists, and performed emergency procedures; however,
since the NFOs were not rated pilots by military standards, none of the
acquired flight hours can be credited to the aeronautical experience
requirements. The commenter explained that the inability to log time
accrued as an NFO makes it financially much more difficult for an NFO
to transition to a career as an airline pilot.
The FAA did not receive any further comments on (1) the ICAO
limitation proposed in Sec. 61.51(f)(4)(ii) or (2) the crediting of
time logged under PAO toward the total time for an ATP certificate
proposed in Sec. Sec. 61.159(e) and 61.161(d).
2. FAA Response
The FAA acknowledges ALPA's and an individual commenter's
recommendations to require, first, formalized and documented training
and certification programs for pilots operating under PAO to credit
time toward certificates, ratings, and experience and, second,
formalized command and mentoring training requirements for their PICs
for a second pilot to be able to log SIC time, similar to Sec.
135.99(c). However, the FAA declines to revise this final rule to
include these recommendations because the FAA does not maintain
regulatory authority over PAOs other than those requirements that apply
to all aircraft operating in the NAS. Such authority is granted to a
government entity by statute under 49 U.S.C. 40102(a)(41) and section
40125. Therefore, PAOs represent a significant transfer of
responsibility to the government entity, who may implement certain
training programs tailored to their specific governmental function and
mission. Because the respective governmental entity is best situated to
ensure proper training and operation of their PAO, and the FAA lacks
the expertise to approve the broad gamut of PAO training programs that
are specific to respective governmental agencies, the FAA does not find
that requiring a training or mentorship program as a prerequisite to
logging of PAO flight time would enhance safety. Further, as explained
in the NPRM, these operations are already occurring in the NAS. The FAA
is simply revising the PAO logging requirements to allow PICs and SICs
to log the flight time they have been accumulating, and continue to
accumulate, toward meeting certain FAA recency and certification
requirements.
In response to concerns that PAO aircraft are not certificated in
accordance with FAA certification standards, the FAA notes its
statutory authority to regulate the operation and maintenance of civil
aircraft used in air commerce and lack of statutory authority to
regulate public aircraft, except as related to operations in the
NAS.\27\ The ability to determine the airworthiness of ``public
aircraft'' is transferred to the governmental entity during qualified
PAOs.\28\ As stated in AC 91-91, the FAA recommends that
[[Page 80317]]
public aircraft operators use one of the inspection or maintenance
programs specified in Sec. 91.409 to determine airworthiness, but the
FAA cannot make this a requirement. This shift in responsibility for
safety standards for inspections and maintenance from the FAA to the
governmental entity conducting a PAO neither impacts an aircraft's
ability to operate in the NAS nor a PAO pilot's ability to log flight
time as mandated by Congress. Based on the reasons discussed
previously, this final rule does not add the commenter's
recommendation.
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\27\ See FAA Advisory Circular 91-91, Maintaining Public
Aircraft. <a href="http://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1030146">www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1030146</a>.
\28\ See FAA Advisory Circular 91-91, Maintaining Public
Aircraft. <a href="http://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1030146">www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1030146</a>.
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Finally, this final rule does not adopt the recommendation to allow
NFOs and equivalent flying officers of military services to log SIC
flight time because it is outside the scope of this rulemaking. In the
NPRM, the FAA proposed to expand PAO logging opportunities by
permitting pilots to log flight time while conducting a governmental
function outlined in 49 U.S.C. 40125. This is dissimilar to the request
to allow NFOs and equivalent military personnel to log SIC pilot time
because NFOs do not undergo the training nor perform the functions of a
Naval pilot. Rather, NFOs function as navigators, lookouts, and weapons
officers. Although there may be some functions that overlap with those
of a Naval pilot, they are not equivalent to the responsibilities and
duties of a PIC or SIC and, therefore, will not be considered as such
under civilian regulations. Since the commenter's request is unrelated
to the provisions in the NPRM, the FAA will not integrate the suggested
change into this final rule.
3. Revisions To Align With ICAO Requirements
As previously stated, the NPRM proposed to add Sec.
61.51(f)(4)(ii) to delineate that an applicant for an ATP certificate
who logs SIC time under Sec. 61.51(f)(4) would be issued an ATP
certificate with a limitation. Although the NPRM proposed to require
this limitation for all flight time logged in accordance with Sec.
61.51(f)(4), the final rule is changed to align precisely with ICAO
requirements. Specifically, the final rule will not require the
limitation to be added to a pilot's ATP certificate when the SIC flight
time was logged in an aircraft type certificated for two pilots. This
change is in accordance with ICAO Annex 1 (Personnel Licensing),
section 2.1.9.3, which states, ``[t]he holder of a pilot license, when
acting as a co-pilot at a pilot station of an aircraft certificated to
be operated with a co-pilot, shall be entitled to be credited in full
with this flight time towards the total flight time required for a
higher grade of pilot license.'' Persons logging flight time in
aircraft that are not type certificated for two pilots will continue to
require the ICAO limitation to be added to their ATP certificate. As
noted in the NPRM, an applicant would be 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 applicable aeronautical
experience requirements).
Additionally, during the pendency of this rulemaking, the FAA noted
an inadvertent error in the proposed ICAO limitation of Sec.
61.51(f)(4)(ii) by excluding a reference to Sec. 61.161, which sets
forth the aeronautical experience requirements for rotorcraft category,
helicopter class rating on an ATP certificate. Specifically, Sec.
61.51(f)(4) permits a person to log SIC time if the person is
designated by a government entity as an SIC when operating in
accordance with Sec. 61.51(j)(4), provided the aircraft used is a
large aircraft (in addition to other conditions set forth within the
paragraph (f)). By definition, a large aircraft can include a
helicopter,\29\ which would necessitate an ICAO limitation for the ATP
certificate with rotorcraft category, helicopter class rating mirroring
that of an airplane category ATP certificate. While the FAA proposed
the ICAO limitation provision in the NPRM via Sec. 61.161(d), the
aligning reference was inadvertently excluded from Sec.
61.51(d)(4)(ii). This final rule corrects the inadvertent omission.
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\29\ Under 14 CFR 1.1, a ``large aircraft'' means aircraft of
more than 12,500 pounds, maximum certificated takeoff weight.
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The FAA adopts Sec. Sec. 61.51(f), 61.159(e), and 61.161(d), as
proposed, subject to the revisions described in this section.
B. Revision of the Definition of ``Public Aircraft'' (Sec. 1.1)
Section 923 of the FAA Reauthorization Act of 2024 (Pub. L. 118-63)
amended the definition of ``public aircraft'' found in 49 U.S.C.
40125(a)(2). Specifically, section 923 amends 49 U.S.C. 40125(a)(2),
which sets forth the definition of ``governmental function,'' to
include: ``biological or geological resource management (including data
collection on civil aviation systems undergoing research, development,
test, or evaluation at a test range (as such term is defined in 49
U.S.C. 44801)), infrastructure inspections, or any other activity
undertaken by a governmental entity that the Administrator determines
is inherently governmental.'' \30\
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\30\ 49 U.S.C. 40125(a)(2) as amended by section 923 of Public
Law 118-63.
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The regulations in 14 CFR 1.1 set forth the definitions for
subchapters A through K of title 14, chapter I, including a definition
for public aircraft. Within the definition for ``public aircraft,''
paragraph (1)(ii) sets forth the definition of ``governmental
function'' for the sole purpose of determining public aircraft status,
which aligns with the definition of ``governmental function'' as set
forth in 49 U.S.C. 40125(a)(2). Because this final rule permits the
logging of flight time for pilots engaged in any PAO in accordance with
49 U.S.C. 40102(a)(41) and 40125 (i.e., the revised statute), which
contains the statutorily revised definition, this final rule revises
the 14 CFR 1.1 definition of public aircraft to align with the
statutory definition in revised 49 U.S.C. 40125(a)(2).
C. Exceptions to Recent Flight Experience for Pilot in Command (Sec.
61.57(e))
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 to continue to act as
PIC of a flight that is carrying passengers. The FAA proposed 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). This
person would be required to meet all other requirements to act as PIC,
except for the recent flight experience requirements of Sec. 61.57(a)
or (b), and only the authorized instructor and person receiving
training could be on board the aircraft. The FAA proposed the change in
response to a disparity created between several legal interpretations
\31\ that concluded, unsupported by the regulations, that a flight
instructor and a person receiving flight training are not considered
passengers to one another. This final rule adds the definition of
``passenger'' and addresses how those legal interpretations relate to
the
[[Page 80318]]
requirements of Sec. 61.57, as explained in section VI.F of this
preamble.
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\31\ The FAA rescinded Legal Interpretation to Kris Kortokrax
(Aug. 22, 2006), Legal Interpretation to John Olshock (May 4, 2007),
Legal Interpretation to Roger Schaffner (May 5, 2014), and Legal
Interpretation to E.V. Fretwell (Sept. 18, 1995) on July 23, 2023,
30 days after publication of the NPRM, because they were not
supported by FAA regulations. See 88 FR 41194 at 41199.
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HAI and ALPA both supported the proposed amendment to Sec.
61.57(e). HAI described the FAA's approach in Sec. 61.57(e) as common
sense, resulting in reduced confusion, increased training
opportunities, and elimination of administrative burden on pilots. ALPA
supported the proposal, provided no passengers are carried on board and
the purpose of the flight is to establish recency of experience. The
FAA did not receive any opposing comments nor recommended changes.
Therefore, the FAA adopts Sec. 61.57(e)(5) as proposed. The FAA
notes that AOPA urged the FAA to reconsider its withdrawal of existing
interpretations before the effective date of any final rule. As
previously noted, these legal interpretations were, in fact, withdrawn
prior to this final rule because they were unsupported by the
regulations in place at that time. This final rule maintains the action
taken in regard to the legal interpretations, but the adoption of new
Sec. 61.57(e)(5) will succinctly codify the circumstances in which a
person receiving flight training may act as PIC, even if that person
does not meet the recent flight experience requirements for carrying
persons under Sec. 61.57(a) or (b), curing any uncertainty caused by
the rescission of the legal interpretations during the pendency of this
rulemaking.
D. 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 do not currently address specific
elective and specialized training activities that the FAA encourages
but which are not required to meet FAA regulations.\32\ To conform
those regulations with FAA policy and industry practice, the FAA
proposed three amendments to Sec. Sec. 61.193 and 61.413. First, the
FAA proposed to modify the introductory text of Sec. Sec. 61.193(a)
and 61.413(a) to provide that authorized flight instructors may conduct
ground and flight training, and certain checking events,\33\ in
addition to issuing endorsements. Second, the FAA proposed 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 succinctly provide that flight instructors are
authorized to conduct certain specialized and elective training
intended to advance a pilot's preexisting flying knowledge or skills
but that may not require specific endorsements (i.e., not the initial
development or building blocks of pilot knowledge). Finally, the FAA
proposed to add Sec. Sec. 61.193(c) and 61.413(c) to limit the
privileges afforded to authorized flight instructors under these
provisions from permitting operations that would require an air carrier
or operating certificate or specific authorization from the
Administrator (e.g., solely providing transportation, conducting
commercial air tours under the guise of flight training, or offering
introductory or orientation flights to non-pilots who have no intention
of or interest in continuing training toward a certificate or
rating).\34\ Aside from permitting an authorized flight instructor to
conduct certain checking events and training related to maintaining or
improving skills for certificated pilots, the FAA did not propose to
revise any other requirements within Sec. Sec. 61.193 and 61.413.
---------------------------------------------------------------------------
\32\ For example, 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. See 88 FR 41200 for additional
discussion on additional recommended elective and training
activities in practice that this final rule will now explicitly
facilitate.
\33\ For example, instrument proficiency checks (IPC), night
vision goggle proficiency checks (NVG), sport pilot proficiency
checks, and part 141 checks.
\34\ For additional discussion on how the FAA will ascertain
whether an operation is considered flight training, see 88 FR 41194
at 41201.
---------------------------------------------------------------------------
1. Summary of the Comments
Two industry groups responded to the proposed revisions to flight
instructor privileges. ALPA fully supported the proposal, citing that
the changes encourage pilots to seek continuing instruction and
elective training. AOPA broadly supported the proposal, similarly
stating that the efforts would promote aviation safety by encouraging
pilots to obtain elective flight training and incentivize flight
instructors to provide such, but suggested certain revisions to the
proposal. Specifically, AOPA, first, sought clarification on whether
certain flight activities would be included in the proposed expansion
of privileges and, second, urged the FAA to expand certain types of
training beyond only pilot training aimed at maintaining and improving
skills for certificated pilots.
First, AOPA recommended that the FAA specifically allow a flight
instructor to train and provide endorsements as may be required by an
insurer or an entity providing aircraft, such as a flying club or a
Fixed Base Operator (FBO) authorized by an airport to provide services
for general aviation. While AOPA ceded that these privileges may
already be included in the proposed addition to Sec. Sec. 61.193(a)(7)
and 61.413(a)(6), AOPA requested that the FAA specifically clarify
whether these activities are included within the privileges afforded to
flight instructors to avoid confusion.
Additionally, AOPA agreed that elective flight training is highly
beneficial to pilots with existing skills but emphasized that such
training can be beneficial to any individual regardless of experience
level and would not have a negative impact on safety. Specifically,
AOPA cited the FAA's position in the preamble of the NPRM that the
proposed modifications to Sec. Sec. 61.193(a)(7) and 61.413(a)(6) are
only available to ``train[ ] pilots to maintain or advance preexisting
skills, not the initial inception or development of pilot knowledge,''
stating that the FAA specifically notes that ``[t]he proposed training
does not contemplate learning basic flying skills, as in the case of a
student pilot.'' \35\ AOPA asserted that a private pilot who has no
intention of performing aerobatics could still learn potentially
lifesaving information concerning aerodynamics and upset recovery by
receiving training in aerobatics and that, similarly, a student pilot
living in a mountainous area must receive training in mountain flying
in the interests of safety. AOPA concluded that these operations would
be prohibited by the proposed rule.\36\ To this point, AOPA opined that
the proposed rule would undermine the ability to inspire a new
generation of pilots with introductory flights that go beyond basic
flying skills, which would be stifled by experience level parameters,
providing an example that individuals interested in receiving flight
instruction, but who do not yet have a certificate, discover their
interest in aviation after a training flight where an instructor could
demonstrate more energetic maneuvers before inviting the student to
take the controls. AOPA noted that the proposed rule does not
adequately address legitimate safety rationale for the limitations and,
rather, appears to only be related to the FAA's concern that an
operator who should otherwise hold a commercial air tour
[[Page 80319]]
authorization could try to disguise itself as a flight training
provider.
---------------------------------------------------------------------------
\35\ See 88 FR 41194 at 41200.
\36\ The FAA notes that this is an erroneous conclusion, but
further discusses these privileges in the immediately following
section of this preamble.
---------------------------------------------------------------------------
2. FAA Response
In response to AOPA's request to clarify whether flight instructors
are authorized to train and provide endorsements that may be required
by an insurer or an entity providing an aircraft, the FAA notes that
such training and endorsements are not necessarily precluded under the
proposed amendments to Sec. Sec. 61.193(a)(7) and 61.413(a)(6).
Specifically, the proposed additions are general in nature, applying to
any training to maintain or improve the skills of a certificated pilot,
including specialized flight training that does not require an
endorsement (e.g., transition training to ensure that certificated
pilots are proficient and safe). Notably, the FAA does not have a
regulatory requirement for a flight instructor to conduct a pilot
checkout for insurance purposes, nor do the proposed amendments to the
rule directly address insurance or other pilot checkouts required by
industry.\37\ Rather, the amended rule could consider a pilot checkout
to be flight training if flight training is given during the checkout.
Conversely, if no flight training is provided during the checkout, then
the flight would not be considered instruction.\38\ Thus, the NPRM
proposed (as adopted by this final rule) to permit flight instructors
to provide elective training to maintain or improve the skills of
certificated pilots and train and issue endorsements under part 61 that
an insurer or entity providing an aircraft may require, provided the
activity is not merely a pilot checkout that does not include training.
If training to maintain or improve skills of a certificated pilot were
to occur during an insurance checkout, the FAA would consider that
training to be within the scope of the proposed rule. Notably,
insurance is generally not regulated by the FAA, and, therefore, an
explicit authorization is not appropriate to add into this final rule.
---------------------------------------------------------------------------
\37\ ``Pilot checkout'' is a general term used by the aviation
industry to describe an event enabling a pilot to demonstrate
competency in a specific aircraft before being allowed to fly an
aircraft provided by another entity. For example, ``pilot checkout''
includes insurance checkouts (also called rental checkouts), which
occur when aviation insurance companies and persons offering their
aircraft for rent require a pilot to fly with an instructor prior to
renting an aircraft for the first time, regardless of whether the
pilot is technically qualified to operate the aircraft. This
checkout affords the insurance company and owner of the aircraft an
opportunity to have a pilot's skills evaluated as an additional
layer of protection from aircraft damage.
\38\ See Legal Interpretation to Charles Walters (May 7, 2018),
addressing the distinction between a checkout and training.
---------------------------------------------------------------------------
Furthermore, the FAA finds elective training such as aerobatic and
mountain flying training beneficial for certificated pilots with
existing skills; however, the FAA does not believe that such training
would be beneficial to all individuals, regardless of experience level
(i.e., persons who hold no pilot certificate). As discussed in the
NPRM, the training contemplated under proposed Sec. Sec. 61.193(a)(7)
and 61.413(a)(6) is purposefully broad and may include transition
training, aerobatic training, formation training, and mountain flying,
none of which require an endorsement. Already-certificated pilots, in
particular, may find training of this nature to be highly beneficial.
As stated in the NPRM, the proposed training did not contemplate
learning basic flying skills, as in the case of a student pilot (in
other words, the only population of pilots that may utilize Sec. Sec.
61.193(a)(7) and 61.413(a)(6) are already-certificated pilots via the
conditional language ``of a certificated pilot''). The FAA has long
recognized that the building block approach to flight training is the
safest and most effective method to develop a learner's knowledge and
skills.\39\ The traditional framework for a pilot follows an
incremental path to build piloting skills through an iterative series
of training activities with a flight instructor, accumulation of other
flight experience, and successful completion of a practical test with
an evaluator. The FAA finds that individuals with little to no pilot
knowledge, skills, or experience should become certificated pilots
proficient in basic pilot skills before pursuing elective or
specialized training activities because these activities require the
trainee to at least possess the knowledge to safely operate the
aircraft prior to engaging in more advanced skills. Specifically,
persons will be required to possess at least a fundamental pilot
certificate (e.g., recreational pilot certificate or sport-pilot
certificate) to be eligible to receive this type of training, as these
persons have demonstrated a level of proficiency to the FAA through the
testing process. Individuals who are not pilots may not have a full
awareness of the risks involved. For example, aerobatic skills training
includes maneuvers that require application of advanced aerodynamic
concepts, as well as the ability to manage aircraft speed, orientation,
energy, and altitude to be performed safely. Persons who do not hold a
pilot certificate would likely not yet have the knowledge or skills
necessary to perform these types of maneuvers and, further, have not
yet demonstrated to the FAA through the certification process that they
possess the minimum knowledge and skills to safely operate the aircraft
in the NAS, even in non-aerobatic flight. Common flight instruction
risks include pilot risks, aircraft risks, and environmental risks.\40\
Consequently, demonstrating complicated maneuvers prior to transferring
the controls to a trainee not holding a pilot certificate increases
safety risks and potentially undermines mentoring of risk management
concepts. Risk management should be mentored and taught at the very
start of flight training and should be integrated into any flight
training.\41\ Since using the building block method of instruction
based on prior lessons learned is the safest and most effective method
to elevate a learner's knowledge and skills, the FAA does not consider
demonstrating or teaching more advanced skills (e.g., aerobatic
maneuvers) an appropriate building block of instruction for initial
flight training for non-certificated pilots.
---------------------------------------------------------------------------
\39\ See Airplane Flying Handbook (FAA-H-8083-3C), Chapter 1, p
1-7, Paragraph 1: Introduction, for discussion on the building block
method of instruction.
\40\ For example, pilot risks associated with flight instruction
may include instructor, trainee, and aeromedical risks. Although a
trainee will generally be less proficient than the instructor and
may react unexpectedly, instructors may have qualification,
currency, and proficiency issues. Additionally, the state of both
the instructor and trainee's medical health, inadequate rest prior
to flight, or illness are sources of potential risk. Aircraft risks
increase if the instructor is not aware of inoperative systems and
equipment or overdue aircraft inspections. Environmental risks may
include risks generated by the weather, terrain, and night operation
hazards, and also include airports, airspaces, and other
environmental factors. See Instructor's Handbook (FAA-H-8083-9)
Chapter 10, p 10-6 & 10-7: Common Flight Instruction Risks.
\41\ Aviation Instructor's Handbook (FAA-H-8083-9) Chapter 10, p
10-2: Teaching Practical Risk Management during Flight Instruction.
---------------------------------------------------------------------------
For these reasons, the FAA declines to expand the privileges of
flight instructors to include elective or specialized training to non-
certificated pilots and finds this limitation would not undermine the
ability to inspire a new generation of pilots, as flight training
pathways for new pilots already exist in the airman certification
framework. In response to AOPA's comment that the limitations on the
proposed expansion of flight instructor privileges appear to only be
related to the FAA's concerns that an operator who should otherwise
hold a commercial air tour authorization could disguise itself as a
flight training provider, the FAA reiterates that, as discussed, the
rationale for these
[[Page 80320]]
limitations is based on public and trainee safety needs, lack of
potential risk awareness, and the additional risks discussed herein and
in the NPRM. In the absence of any safety data or documented safety
cases to support a claim that an individual at any experience level
benefits from such advanced training activities, the FAA declines to
expand the proposed revisions to Sec. Sec. 61.193(a)(7) and
61.413(a)(6).
After considering comments, the FAA adopts the revisions to
Sec. Sec. 61.193 and 61.413 as proposed in the NPRM to clarify the
privileges an authorized flight instructor may exercise.
E. Flight Training Is Carrying a Person for Compensation or Hire
The FAA's proposal reinforced its longstanding position that,
although excepted from the part 119 requirement to obtain an air
carrier or commercial operator certificate, compensated flight training
in limited, experimental, and primary category aircraft is an operation
that involves the carriage of a person for compensation or hire.
Specifically, as discussed at length in the NPRM,\42\ 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.\43\ Following the court's
dismissal of the petition for review of the cease and desist order, the
FAA, first, 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 \44\ and, second, announced it
would rescind conflicting agency guidance. Additionally, the
announcement memorialized the intention to 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 (i.e., this rulemaking).
---------------------------------------------------------------------------
\42\ 88 FR 41194 at 41201.
\43\ 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).
\44\ Notification of Policy for Flight Training in Certain
Aircraft, 86 FR 36493 (Jul. 12, 2021).
---------------------------------------------------------------------------
In proposing this rulemaking, the FAA noted 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 the carriage of persons or
property aboard these aircraft during operations involving compensation
or hire. Specifically, the FAA detailed that terms within these
regulations are either broadly defined (e.g., operate,\45\ person \46\)
or have been broadly interpreted over time (e.g., compensation \47\),
resulting in obstacles to certain flight training that the FAA did not
intend.
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\45\ 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).'' As explained in the NPRM, an aircraft may be
``operated'' by more than one person for purposes of part 91
regulations. See 88 FR 41194 at 41202.
\46\ Pursuant to Sec. 1.1, ``person'' is defined as an
individual, firm, partnership, corporation, company, association,
joint-stock association, or governmental entity. It includes a
trustee, receiver, assignee, or similar representative of any of
them.
\47\ 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.
---------------------------------------------------------------------------
Therefore, the proposed rule sought to narrow and more clearly
define the types of operations that are precluded in aircraft holding
certain special airworthiness certificates by refining the regulatory
language in Sec. Sec. 91.315, 91.319,\48\ and 91.325 to clearly define
operations that would generally require an air carrier or commercial
operator certificate (or an exception therefrom), while explicitly
enabling flight training, checking, and testing. Specifically, except
as provided in proposed Sec. 91.326 (which is further discussed in
this preamble), the proposed amendments would prohibit conducting
operations that: (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 part 129, 133, or 137. Similarly, the NPRM proposed to
amend Sec. 91.327 to be inclusive of checking and testing in aircraft
having a special airworthiness certificate in the light-sport category,
where it previously only enabled flight training, through paragraph
(a)(2).
---------------------------------------------------------------------------
\48\ The FAA notes that the NPRM proposed a miscellaneous,
nonsubstantive amendment to Sec. 91.319(d)(3) to use ``air traffic
control'' in place of ``control tower.'' The FAA did not receive
comment on this proposal and adopts the revision as proposed.
---------------------------------------------------------------------------
1. Summary of the Comments
AOPA supported the FAA's efforts to clarify the operating
limitations of limited, experimental, and primary category aircraft but
argued that the premise for these changes is based on the flawed
conclusion that flight instruction categorically equates to the
carriage of persons for compensation or hire. AOPA explained that the
FAA has repeatedly held that compensated flight instruction does not
equal to the carriage of persons for compensation or hire, providing
several examples. First, AOPA detailed a 1992 final rule for the
establishment of primary category aircraft as specifically permitting
the use of primary category aircraft for flight instruction while
simultaneously prohibiting the carriage of passengers or property for
compensation or hire.\49\ Second, AOPA stated that a 1997 final rule
explained why a flight instructor acting as PIC need only hold a third-
class medical certificate to conduct flight instruction by stating ``a
certificated flight instructor who is acting as pilot in command or as
a required flight crewmember and receiving compensation for his or her
flight instruction is not carrying passengers or property for
compensation or hire, nor is he or she, for compensation or hire,
acting as pilot in command of an aircraft.'' \50\ Third, AOPA cited
Congress as recognizing that flight training is not considered to be
carrying a passenger for compensation or hire when it enacted section
2307 of the FAA Extension, Safety, and Security Act of 2016, a position
the FAA agreed with when it promulgated the ``BasicMed'' regulations
implementing this law.\51\
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\49\ See Primary Category final rule, 57 FR 41360 (Sep. 9,
1992).
\50\ Pilot, Flight Instructor, Ground Instructor, and Pilot
School Certification Rules final rule, 62 FR 16220, 16242 (Apr. 4,
1997).
\51\ AOPA specifically quoted, ``The FAA has found that, in
conducting flight training, the PIC is not carrying passengers or
property for compensation or hire, nor is acting as PIC of an
aircraft for compensation or hire,'' from the BasicMed final rule.
See Alternative Pilot Physical Examination and Education
Requirements final rule, 82 FR 3149 at 3155 (Jan. 11, 2017).
---------------------------------------------------------------------------
Therefore, AOPA recommended that the FAA adopt regulations
specifically clarifying that flight instruction does not
[[Page 80321]]
equate to the carriage of persons or property for compensation or hire.
In addition, AOPA referenced section 243 of proposed H.R. 3935.\52\
Likewise, AOPA argued that since the FAA views all compensated flight
instruction as carrying a person for compensation or hire, every
aircraft used for compensated flight instruction must comply with Sec.
91.409(b), which contains aircraft inspection requirements, regardless
of whether the aircraft is provided by the flight instructor. AOPA
further explained that, based on the FAA's new proposed interpretation
in the NPRM, the second condition in Sec. 91.409(b), under which a
100-hour inspection is required, is meaningless. Finally, AOPA noted
that this interpretation would effectively prohibit a flight instructor
from providing instruction for formation flying since Sec. 91.111(c)
prohibits any person from operating an aircraft carrying passengers for
hire in formation flight.
---------------------------------------------------------------------------
\52\ Section 243 of H.R.3935, Securing Growth and Robust
Leadership in American Aviation Act, proposed that the FAA adopt the
position that an authorized flight instructor providing student
instruction, flight instruction, or flight training shall not be
deemed to be operating an aircraft carrying persons or property for
compensation or hire. However, this section was not enacted as part
of the FAA Reauthorization Act of 2024, Public Law 118-63.
---------------------------------------------------------------------------
2. FAA Response
The FAA declines to align with AOPA's position that flight
instruction does not equate to the carriage of persons or property for
compensation or hire. The FAA maintains the position that flight
training for compensation constitutes carriage of a person for
compensation or hire but adopts this final rule to specifically define
types of operations under which persons or property could be carried
for compensation or hire (including certain flight training). The FAA
notes that in its comment, AOPA used the terms ``carriage of persons''
and ``carriage of passengers'' interchangeably. In recent related
litigation, the FAA explained its position that ``persons'' is a
broader term than ``passengers'' and specified that the FAA has
consistently drawn a distinction between regulations that refer to the
carriage of passengers and the carriage of persons.\53\ Additionally,
in the litigation, the FAA stated, ``[it] has consistently drawn a
distinction between regulations that refer to the carriage of
passengers, which the FAA does not interpret to include flight
students, and those that prohibit the carriage of persons, which the
FAA interprets to include any person, including flight students.''
---------------------------------------------------------------------------
\53\ The history of Sec. 91.315 confirms that the regulation
prohibits the carriage of persons in exchange for compensation for
any purpose, including flight training. As originally enacted, that
regulation contained language that only authorized flights ``in
which neither passengers nor cargo are carried for compensation or
hire.'' However, Sec. 91.315 has been amended several times to
expand the regulation to prohibit the carriage of ``persons'' and
not just ``passengers.'' Notably, the FAA does not interpret its
regulations prohibiting the carriage of passengers to consider
flight students as passengers. However, the FAA interprets its
regulations prohibiting the carriage of persons to include any
person, including flight students. The decision to expand Sec.
91.315's predecessor regulation to prohibit the carriage of persons,
not just passengers, for compensation or hire therefore supports the
distinction between carriage of persons and carriage of passengers.
See Warbird Adventures, Inc. v. Fed. Aviation Admin., 2020 WL
7260623 (C.A.D.C.) (Appellate Brief).
---------------------------------------------------------------------------
Regarding AOPA's reference to section 243 of H.R. 3935 for
guidance, the FAA notes that the cited proposed legislative language
was not enacted.\54\ Without a congressional mandate, the FAA does not
intend to adopt any regulation specifying flight instruction does not
equate to the carriage of persons or property for compensation or hire.
The FAA notes that AOPA's recommendation is incongruent with a recent
court ruling, wherein the court determined that: ``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 `carried.' Id. Sec.
91.315. And when the student is paying for the instruction, the student
is being carried `for compensation.' '' \55\
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\54\ Public Law 118-63, the FAA Reauthorization Act of 2024, did
not contain the language referenced in AOPA's comment.
\55\ Warbird Adventures, Inc. v. Fed. Aviation Admin., 843 F.
App'x 331 (D.C. Cir. 2021).
---------------------------------------------------------------------------
The FAA also disagrees with AOPA's interpretation of Sec.
91.409(b). Section 91.409 sets forth certain inspection requirements.
Paragraph (b) requires, in pertinent part, that, except as provided in
Sec. 91.409(c),\56\ no person may operate an aircraft carrying any
person (other than a crewmember) for hire, and no person may give
flight instruction for hire in an aircraft which that person provides,
unless within the preceding 100 hours of time in service the aircraft
has received an annual or 100-hour inspection and been approved for
return to service in accordance with part 43 or has received an
inspection for the issuance of an airworthiness certificate in
accordance with part 21. The FAA's position and Sec. 91.409(b) are not
contradictory. Rather, the regulation provides specificity to the
inspection expectations when a person only provides flight instruction
compared to when a person provides both flight instruction and the
aircraft. Specifically, the regulation intends that, despite the
requirement for a 100-hour inspection when any person is carried for
hire, a 100-hour inspection is only required for flight training when
the person giving the instruction for hire also provides the
aircraft.\57\ While the FAA cedes that the regulation could have been
more strongly written, and may consider a revision in a separate
rulemaking to except circumstances rather than affirmatively stating
such, this position has been explicitly reiterated in Legal
Interpretations.\58\
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\56\ Section 91.409(b) does not apply to (1) an aircraft that
carries a special flight permit, a current experimental certificate,
or a light-sport or provisional airworthiness certificate; (2) an
aircraft inspected in accordance with an approved aircraft
inspection program under part 125 or 135 and so identified by the
registration number in the operations specifications of the
certificate holder having the approved inspection program; (3) an
aircraft subject to the requirements of Sec. 91.409(d) and (e); or
(4) turbine-powered rotorcraft when the operator elects to inspect
that rotorcraft in accordance with Sec. 91.409(e).
\57\ See Part 91--General Operating and Flight Rules, 35 FR 4116
(March 5, 1970) which clarified that the caveat ``in an aircraft
which that person provides'' was added to clarify the 100-hour
inspection requirement for the flight instruction for hire was
intended for those instances in which the person providing flight
instruction for hire also provides the aircraft in which the
instruction is given. The preamble indicates this clarification was
needed because the regulation had been misunderstood by many people
to mean that they could not receive flight instruction in an
aircraft owned or leased by them if the flight instructor received
compensation for their services unless the aircraft had met the 100-
hour inspection requirement.
\58\ E.g., Legal Interpretation to Greenwood-Fly by Knight (Oct.
1, 2014) (reiterated in Greenwood-Fly by Knight, Oct. 9, 2015).
---------------------------------------------------------------------------
AOPA's concern that a flight instructor would be prohibited from
providing instruction for formation flying has been addressed by the
addition of the definition of ``passenger'' in Sec. 61.1 as part of
this final rule, as discussed in more detail in the subsequent section
of this preamble. While AOPA noted that Sec. 91.111(c) generally
prohibits any person from operating an aircraft carrying passengers for
hire in formation flights, the FAA has excluded persons providing or
receiving flight training from its definition of ``passenger'' in Sec.
61.1.\59\
[[Page 80322]]
Therefore, formation flight training will not be prohibited in
accordance with this final rule.
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\59\ The FAA notes that the definitions set forth in Sec. 61.1
are for the purpose of part 61 (see Sec. 61.1(b)). However, for
purposes of airman certification and training, it is common practice
to apply certain part 61 definitions to related certification and
training parts and sections within Title 14 (e.g., part 61
definitional application of ``authorized instructor'' to part 141).
The FAA contemplated a global definition for ``passenger,'' but does
not find it appropriate at this time to memorialize the definition
of ``passenger'' in part 1 to apply to all of Title 14 due to the
possible unintended and unstudied repercussions in other parts that
would be out of scope for this rulemaking. In this case, it will be
FAA policy to apply the part 61 definition of ``passenger'' to Sec.
91.111(c) because the formation training is taking place during a
part 61 flight training event. As previously stated in this
preamble, the training contemplated under Sec. Sec. 61.193(a)(7)
and 61.413(a)(6) may include formation training.
---------------------------------------------------------------------------
For these reasons, this final rule does not make any revisions
based on AOPA's comments regarding the carriage of persons for
compensation or hire as it relates to compensated flight training.
F. New Definition of Passenger (Sec. 61.1(b)) and Related Changes
(Sec. 61.57)
Although the FAA has not previously defined ``passenger'' in
regulation, the NPRM analyzed the FAA's historical interpretation of
the term. Previous FAA legal interpretations \60\ have stated that a
flight instructor and a person receiving flight training are not
considered passengers to one another. However, the NPRM concluded that
those FAA legal interpretations had no regulatory basis to assert such
a position, and the FAA has since rescinded those interpretations.
While the NPRM did not assert that a flight instructor and a person
receiving flight training are not passengers to one another, it sought
to clarify when certain operations involving such persons may be
conducted.
---------------------------------------------------------------------------
\60\ Legal Interpretation to Kris Kortokrax (Aug. 22, 2006),
concluding 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; Legal
Interpretation to Roger Schaffner (May 5, 2014), concluding 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.
---------------------------------------------------------------------------
1. Summary of the Comments
AOPA asserted that the FAA does not offer a reasoned explanation to
depart from the established view that a flight instructor and a trainee
are not passengers to one another. According to AOPA, the FAA indicated
in the NPRM that decades of its own policy and interpretations are
incorrect. AOPA argued that the FAA failed to consider the plain
meaning of the term ``passenger,'' which it defines from two legal
dictionaries as ``an occupant of a vehicle other than the person
operating it or a member of the crew.'' AOPA contended that because
both instructor and trainee are operating the aircraft, each may be
considered a crewmember and neither meets the plain meaning of the term
``passenger.'' Therefore, AOPA urged the FAA to retain the referenced
legal interpretations,\61\ conform the regulatory framework to reflect
current policy and industry practice, and adopt a single regulation
clarifying that an authorized flight instructor providing instruction
to a trainee is not considered a passenger to the trainee, and vice
versa.\62\
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\61\ AOPA noted the lack of upkeep of the FAA's legal
interpretation database, stating that these legal interpretations
were withdrawn as of July 23, 2023, but at the time of their comment
submission on September 18, 2023, still existed on the legal
interpretation database. AOPA stated that, in general, the
interpretation database is difficult to use and search terms do not
generate accurate responses. AOPA strongly recommended that the FAA
take steps to more effectively monitor and control its legal
interpretation database so that it remains an accurate resource. The
FAA continuously works to keep the legal interpretation database up
to date and notes that members of the public can also refer to the
Dynamic Regulatory System to review current FAA legal
interpretations at <a href="http://drs.faa.gov">drs.faa.gov</a>.
\62\ Specifically, AOPA cited the Kortokrax, Olshock, and
Schaffner legal interpretations, which were withdrawn on July 23,
2023. 88 FR 41194, 41199. AOPA described a primary concern with the
interim period between the withdrawal of the legal interpretations
and final rule implementation. Specifically, AOPA posited that to
withdraw these interpretations without first ensuring a clear
framework is in place, whether it be regulatory or policy, poses a
significant aviation safety concern because pilots and flight
instructors who do not meet the recent flight experience
requirements of Sec. 61.57(a) and (b) will struggle to find a safe
solution. The FAA acknowledges AOPA's concern, which is cured by
virtue of this final rule.
---------------------------------------------------------------------------
2. FAA Response
The FAA agrees with AOPA's comment that the regulations could
better delineate the relationship between students and instructors. As
stated in the NPRM, longstanding FAA legal interpretations have
clarified that students and instructors are not considered passengers
to one another. While the FAA ceded there was no regulatory basis upon
which to make this assertion, the FAA finds this rulemaking to be the
optimal opportunity to explicitly define ``passenger'' through a
regulatory definition. As such, for the purposes of part 61, the FAA
does not consider crewmembers, FAA personnel, manufacturer personnel
required for type certification, or persons engaged in flight training,
flightcrew member checking, or flightcrew member testing to be
passengers. These groups are not considered passengers because they are
onboard the aircraft for specific purposes, generally to fulfill
regulatory obligations, and possess knowledge of the risks associated
with those purposes (e.g., flight test engineers) or some sort of
certification (e.g., an airman certificate). Conversely, persons on
board an aircraft to receive a ride (whether transported from place to
place or for other purposes like sightseeing, air tours, or persons
carried to conduct aerial photography) would be considered passengers.
Notably, the FAA considered implementing AOPA's recommendation to
adopt a single regulation explaining that an authorized flight
instructor providing instruction and a trainee are not considered
passengers to one another. However, the FAA found that a single
regulation that narrowly defines the relationship between students and
instructors would not address the carriage of other persons, such as
crewmembers, FAA personnel, or manufacturer personnel required for type
certification when the pilot is operating for compensation. Therefore,
adopting AOPA's recommendation would not provide a sufficiently broad
regulatory solution to clarify the term ``passenger.'' The term
``passenger'' is frequently used in varying contexts throughout part
61, and the FAA finds that one definition of the term applicable to all
of part 61 provides the requisite clarity to prevent multiple
interpretations of the term.
Therefore, this final rule adopts a new definition in Sec. 61.1(b)
to define ``passenger'' as any person on board an aircraft other than a
crewmember, FAA personnel, manufacturer personnel required for type
certification, or a person providing or receiving flight training,
flightcrew member checking, or flightcrew member testing as authorized
by part 61.\63\ This new definition applies to the term ``passenger''
as it is used in part 61.\64\
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\63\ Flightcrew member is defined in 14 CFR 1.1 as a pilot,
flight engineer, or flight navigator assigned to duty in an aircraft
during flight time. Minimum flightcrew requirements are established
at the time of type certification in the Type Certificate Data
Sheet, operational regulation (e.g., part 121 or 135), or as
otherwise prescribed by the certificating authority of the country
of registry.
\64\ 14 CFR 61.1(b).
---------------------------------------------------------------------------
To effectuate this change, the FAA evaluated all instances of the
use of the term ``passenger'' in part 61 to ensure accuracy and
consistency (i.e., to ensure that the new definition of passenger would
not create an unintended consequence). While this evaluation identified
other parts of the CFR that reference the definitions in Sec. 61.1,
only Sec. 61.57 requires a conforming amendment. Because the FAA is
defining ``passenger'' to exclude a flight instructor and trainee (in
other words, memorializing that a trainee will not be a passenger to
the flight instructor and vice versa), the use of the word
``passenger'' in current Sec. 61.57(a)(1) and (b)(1) could be applied
more broadly to
[[Page 80323]]
create a scenario where a flight instructor who does not have the
required recent flight experience could carry a trainee who is not yet
capable to act as PIC. Specifically, Sec. 61.57(a)(1) sets forth that,
except as provided in Sec. 61.57(e), no person may act as PIC of an
aircraft carrying passengers or of an aircraft certificated for more
than one pilot flight crewmember unless that person has made at least
three takeoffs and three landings within the preceding 90 days
characterized by certain conditions.\65\ Because the new definition of
``passenger'' in Sec. 61.1 includes (in pertinent part to this issue)
any person on board an aircraft other than a person receiving or
providing flight training, checking, or testing, under current
application of the new definition with no revision to Sec.
61.57(a)(1), a flight instructor could act as PIC of an aircraft
without meeting the PIC recent flight experience requirements of Sec.
61.57(a) because the trainee would not be a passenger. Similar recent
flight experience is promulgated in Sec. 61.57(b), requiring certain
night takeoff and landing experience before a person may act as PIC of
an aircraft carrying passengers during the period beginning 1 hour
after sunset and ending 1 hour before sunrise, subject to certain
conditions and exceptions,\66\ which would result in the same safety
concern. Although this final rule is enabling a situation where a
flight instructor may be on board an aircraft with another pilot,
neither of whom has met the recent flight experience requirements, the
risk is mitigated by the fact that both persons are otherwise qualified
to operate the aircraft. If the same flight instructor were to act as
PIC of an aircraft carrying a flight student who is not an otherwise
qualified pilot, the risk is increased because, in the event of an
emergency, only one person is capable of operating the aircraft, rather
than two, and the sole person capable of operating does not have the
benefit of recent flight experience (in other words, certain
proficiencies may have degraded over time due to disuse).
---------------------------------------------------------------------------
\65\ See Sec. 61.57(a)(1)(i) and (ii).
\66\ See Sec. 61.57(b)(1)(i) and (ii) and (e).
---------------------------------------------------------------------------
Additionally, this change necessitates an addition to the list of
exceptions set forth in Sec. 61.57(e) to include an exception for an
examiner and an applicant during the conduct of a practical test to
preserve the regulatory authority granted by Sec. 61.47(c). Section
61.47(c) enables a scenario in which a practical test could be
conducted when neither the examiner nor the person receiving the
practical test has met the recent flight experience requirements of
Sec. 61.57(a) or (b) because it explicitly states that those persons
are not subject to the requirements or limitations for the carriage of
passengers that are specified in 14 CFR chapter I. Because Sec.
61.57(a) and (b), as currently written, apply to ``passenger,'' Sec.
61.47(c) functions to except the examiner and the person receiving the
practical test from the requirements set forth in Sec. 61.57(a) and
(b). Although uncommon, there could be a scenario where neither an
examiner nor the person receiving the practical test has met the recent
flight experience requirements of Sec. 61.57(a) or (b); however, the
test can still be safely conducted because there are other proficiency
requirements for examiners and applicants. For example, examiners must
meet PIC experience requirements every 12 months to maintain
eligibility to conduct practical tests.\67\ Likewise, applicants for a
practical test must meet certain prerequisite aeronautical experience
requirements.\68\ With this final rule, the FAA maintains the position
that a designee and an applicant for a practical test can conduct the
test without meeting the requirements of Sec. 61.57(a) and (b). To
facilitate this position in light of the change from ``passengers'' to
``persons'' in Sec. 61.57(a) and (b), the exception adopted in this
final rule as new Sec. 61.57(e)(6) specifies that paragraphs (a) and
(b) do not apply to the examiner or the applicant during the conduct of
a practical test required by part 61. The FAA emphasizes that this new
provision simply maintains the status quo for examiners and applicants
during practical tests.
---------------------------------------------------------------------------
\67\ See FAA Order 8000.95C, Designee Management Policy, Chapter
5, Table 3-9.
\68\ See Sec. Sec. 61.99(a)(1)(ii), 61.109(a)(4), and
61.129(a)(3)(v) which require an applicant for a recreational,
private, and commercial certificate, respectively, to obtain three
hours of aeronautical experience with an authorized instructor in
preparation for the practical test within the preceding 2 calendar
months from the month of the test.
---------------------------------------------------------------------------
Therefore, this final rule modifies Sec. 61.57(a)(1) and (b)(1) to
change the word ``passengers'' to ``persons'' to limit those who may be
on board to the specific exceptions identified in Sec. 61.57(e), which
includes a new exception for instructors and trainees in certain
circumstances.
G. Experimental Light-Sport Aircraft (Sec. 91.319(e))
Section 91.319(e) contains specific limitations on the use of
certain experimental aircraft certificated under Sec. 21.191(i)(1).
The NPRM proposed to modify Sec. 91.319(e)(2) to remove the date
restriction on flight training in experimental light-sport aircraft
(ELSA) and direct stakeholders to the flight training, checking, and
testing in proposed Sec. 91.326, thus enabling flight training in
certain ELSA. In addition, the NPRM proposed to modify Sec.
91.319(f)(2) to allow a person receiving flight training to lease
certain ELSA for the purpose of accomplishing solo flight and a
practical test in accordance with a training program included in the
deviation authority authorized in accordance with proposed Sec.
91.326(b). The proposed revisions were intended to increase the
availability of light-sport aircraft for training and aid individuals
who wish to train in the type of aircraft they operate.
1. Summary of the Comments
Two commenters, Aero Sports Connection Inc. (ASC) and EAA,
supported changes to Sec. 91.319(e), but with conditions. The FAA
received no opposing comments related to the proposed changes to Sec.
91.319(e).
EAA supported the proposed rule language in Sec. 91.319(e)(2) to
remove the sunset date for experimental aircraft, citing the amendment
as an essential step toward reversing the net effect of eliminating
training opportunities due to the low volume of S-LSAs and exclusion of
E-LSAs. However, EAA noted the proposed rule change does not modify the
language in Sec. 91.319(e) that specifies eligibility is limited to
ELSA certificated under Sec. 21.191(i)(1). EAA explained that, while
this proposed change increases the pool of available light aircraft for
training, it excludes flight training, checking, and testing in ELSA
certificated under Sec. 21.191(i)(2) and (3) (i.e., kit-built ELSA and
ELSA previously issued a special airworthiness certificate in the
light-sport category (SLSA) under Sec. 21.190, respectively). EAA
asserted that since both of these certification pathways begin with
conformity to ASTM International standards,\69\ while the
``grandfathered'' aircraft do not, EAA cannot contemplate a safety case
for excluding these aircraft from training or glider towing. EAA
suggested removal of introductory text in Sec. 91.319(e) functioning
to limit the exception to only those aircraft issued an experimental
certificate under Sec. 21.191(i)(1).\70\
---------------------------------------------------------------------------
\69\ In this context, ``ASTM'' refers to the American Society
for Testing and Materials.
\70\ EAA also referenced a simultaneous FAA rulemaking,
Modernization of Special Airworthiness Certification, 88 FR 47650
(Jul. 24, 2023) (Docket No. FAA-2023-1377) and expressed support for
a future amendment to Sec. 91.319(e)(2) to accommodate kit-built E-
LSAs if MOSAIC's proposal to move certification language on kit-
built E-LSA aircraft from Sec. 21.191(i)(2) to Sec. 21.191(j)
finalizes.
---------------------------------------------------------------------------
[[Page 80324]]
ASC proposed to add a privilege for sport pilots to offer
``transition-for-hire'' training in a subgroup of light sport aircraft
ASC describes as high drag/low mass aircraft with a stall speed less
than 39 mph. ASC labeled this subgroup as ``Lighter Sport Aircraft, or
LrSA.'' ASC further clarified that the proposed training would be
limited to take-off, minimum controllable airspeed, and landing, and
that this training would not be applicable to the student's next flight
certificate. ASC asserted that the need for this type of training was
generated because of the 2004 final rule related to light sport
aircraft.\71\ ASC described a dearth of available LrSA and instructors
because of the new rule, which forced LrSA previously authorized for
flight training by exemption to register as ELSA. The newly-registered
ELSA aircraft were prohibited from flight training operations after
2010 in accordance with Sec. 91.319(e)(2). To resolve the perceived
dearth of available LrSA aircraft and instructors, ASC proposed to
modify sport pilot privileges to enable the previously described
transition-for-hire training without the requirement to hold a flight
instructor certificate or Sport Pilot flight instructor certificate.
---------------------------------------------------------------------------
\71\ Certification of Aircraft and Airmen for the Operation of
Light-Sport Aircraft, 69 FR 44772 (July 27, 2004).
---------------------------------------------------------------------------
2. FAA Response
Although the FAA will enable compensated flight training in certain
aircraft holding special airworthiness certificates with this final
rule, including experimental light sport aircraft, the FAA did not
propose changes to sport pilot regulations or aircraft described by ASC
as ``LrSA'' in the NPRM. For this reason, the changes recommended in
the comment are outside the scope of this rulemaking.
While the FAA proposed to revise certain paragraphs within Sec.
91.319, it did not propose to revise the introductory language of Sec.
91.319(e), which states that no person may operate an aircraft issued
an experimental certificate under Sec. 21.191(i) for compensation or
hire, except a person may operate an aircraft issued an experimental
certificate only under Sec. 21.191(i)(1) in certain scenarios (i.e.,
the exceptions set forth in standing paragraph (e)(1) and proposed
paragraph (e)(2)). As noted by EAA's comment, the FAA did not propose
to include those aircraft certificated under Sec. 21.191(i)(2) (light-
sport aircraft that has been assembled from an aircraft kit and is in
accordance with manufacturer's assembly instructions that meet an
applicable consensus standard) or Sec. 21.191(i)(3) (has previously
been issued a special airworthiness certificate in the light-sport
category under Sec. 21.190). Originally, the removal of the date
restriction in Sec. 91.319(e)(2) was part of another rule.\72\ When
that rule was absorbed into this current rule, the FAA attempted to
remain consistent with the original rule, which did not include changes
to the introductory language of Sec. 91.319(e).
---------------------------------------------------------------------------
\72\ Removal of the Date Restriction for Flight Training in
Experimental Light Sport Aircraft, NPRM, 83 FR 53590 (Oct. 24,
2018). Removal of the Date Restriction for Flight Training in
Experimental Light Sport Aircraft; Withdrawal, 88 FR 41045 (Jun. 23,
2023).
---------------------------------------------------------------------------
However, the FAA agrees with EAA's suggestion to broaden the scope
of aircraft available for flight training, flightcrew member checking,
or flightcrew member testing (i.e., operations under Sec. 91.326) and,
therefore, this final rule revises Sec. 91.319(e)(2) to be inclusive
of aircraft certificated under Sec. 21.191(i) as a whole. ELSA
certificated under Sec. 21.191(i)(2) and (3) either meet an applicable
consensus standard or met such a standard previously, indicating the
presence of standards for aircraft design and performance, required
equipment, manufacturer quality assurance systems, production
acceptance test procedures, operating instructions, maintenance and
inspection procedures, identification and recording of major repairs
and major alterations, and continued airworthiness.\73\ This consensus
standard ascertains a comprehensive quality of the aircraft such that
the FAA finds no reason it should be excluded from these operations.
---------------------------------------------------------------------------
\73\ See 14 CFR 1.1 definition of ``consensus standard.''
---------------------------------------------------------------------------
The FAA notes that the proposal did not contain any revisions to
the various provisions within part 91 related to towing operations.\74\
Utilizing ELSA certificated under Sec. 21.191(i)(2) or (3) for
compensated glider towing is outside the scope of this rule,
particularly at the final rule stage where the FAA has neither had an
opportunity to analyze towing regulations, aircraft, and safety
considerations, nor solicit comments on changes to such operations.
---------------------------------------------------------------------------
\74\ Examples of towing provisions in part 91 include Sec.
91.309, which provides requirements for the towing of a glider or
unpowered ultralight vehicle, and Sec. 91.311, which provides
requirements for towing vehicles not covered under Sec. 91.309.
---------------------------------------------------------------------------
Accordingly, this final rule modifies Sec. 91.319(e) to include
aircraft certificated under Sec. 21.191, as a whole, for use in flight
training and other operations set forth by the new Sec. 91.326.
Specifically, this final rule revises Sec. 91.319(e) to state that no
person may operate a light-sport aircraft that is issued an
experimental certificate under Sec. 21.191 for compensation or hire
with two exceptions. Under revised Sec. 91.319(e)(1), a person will be
able to operate an aircraft issued an experimental certificate under
Sec. 21.191(i)(1) to tow a glider that is a light-sport aircraft or
unpowered ultralight vehicle in accordance with Sec. 91.309 (i.e., the
status quo, as these revisions are largely editorial in nature only).
Additionally, revised Sec. 91.319(e)(2) will permit a person to
operate an aircraft issued an experimental certificate under Sec.
21.191 to conduct operations authorized under Sec. 91.326. The FAA did
not receive any comments related to the proposed change to Sec.
91.319(f), (f)(1), and (f)(2) and adopts those changes as proposed.
H. Exception To Operating Certain Aircraft for the Purposes of Flight
Training, Flightcrew Member Checking, or Flightcrew Member Testing
(Sec. 91.326)
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; these regulations
generally prohibit flight training, checking, and testing when
compensation is provided. As discussed in the NPRM,\75\ 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 a streamlined process.
However, 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 while prohibiting an
authorized instructor from providing both the training and the
aircraft.\76\
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\75\ 88 FR 41194 at 41208.
\76\ Public Law 117-263.
---------------------------------------------------------------------------
To effectuate the provisions of the NDAA into the regulations, in
the NPRM, the FAA proposed to add Sec. 91.326 to delineate the
requirements related to flight training, checking, and testing in
certain aircraft holding limited category, primary category, and
experimental airworthiness certificates. The proposed language in Sec.
91.326(a) would specify activities not requiring a LODA (i.e.,
codification of the
[[Page 80325]]
legislation): those operations for the purpose of flight training,
checking, or testing provided the authorized instructor is not
providing both the training and the aircraft; no person advertises or
broadly offers the aircraft as available for flight training, checking,
or testing; and no person receives compensation for the use of the
aircraft for a specific flight during which flight training, checking,
or testing was received, other than expenses for owning, operating, and
maintaining the aircraft. To note, the proposal included limited
category and primary category aircraft, in addition to experimental
aircraft, because the safety justification for enabling these
activities equally applied. Proposed Sec. 91.326(b) would identify
operations requiring a LODA (flight training, checking, or testing in a
limited category or experimental aircraft except as provided in
proposed Sec. 91.326(a) and (c)), and prescribe the application
framework and administrative process. Proposed Sec. 91.326(c) would
function to sunset all LODAs issued under current Sec. 91.319(h)
(which this final rule reserves, as operations requiring a LODA will
move to new Sec. 91.326).
This section of the preamble describes comments received on new
Sec. 91.326, discusses the revisions as an outgrowth of public
comments, and explains the modified section reorganization adopted in
this final rule.
1. Change to Title of Sec. 91.326
First, to note, Sec. 91.326 was previously proposed to be titled
``Exception to Operating Certain Aircraft for Compensation or Hire'' in
the NPRM. This final rule revises the section heading for Sec. 91.326
to read ``Exception to operating certain aircraft for the purposes of
flight training, flightcrew member checking, or flightcrew member
testing.'' This final rule revises the section heading for two reasons.
First, as subsequently discussed, Sec. 91.326 was reorganized, and a
provision is added herein to account for operations that are
uncompensated. Second, the section heading is modified to clarify that
the rule is applicable only to flight training, checking, and testing
for flightcrew members to prevent conflation of flightcrew member
testing and flight testing of an experimental aircraft (e.g., testing
new equipment or aircraft designs). Since flight testing is a commonly
used term in experimental aircraft for the latter purpose, the adopted
title intends to clarify application of the new section.
2. General Provisions of Sec. 91.326(a)
In light of the subsequently explained changes in section 1.B. of
this preamble, this final rule modifies the organization of new Sec.
91.326 from that which was proposed. While proposed Sec. 91.326(a)
previously set forth the circumstances under which an authorized
instructor, registered owner, lessor, or lessee would be permitted to
operate an aircraft for the purpose of flight training, checking, or
testing and, in the case of an experimental aircraft, for a purpose
other than that for which the certificate was issued, this final rule
relocates that proposed paragraph (a) and the proposed conditions of
paragraph (a)(1) through (3) to Sec. 91.326(c). Instead, paragraph
(a), as adopted in this final rule, functions to specify that
notwithstanding the prohibitions in Sec. Sec. 91.315, 91.319, and
91.325, a person may conduct flight training, checking, or testing in a
limited category aircraft, experimental aircraft, or primary category
aircraft under the provisions of Sec. 91.326 to provide a generalized
applicability paragraph within the section.
3. Operations Requiring a LODA in 91.326(b)
For those operations that cannot meet the conditions for operating
without a LODA, the FAA proposed Sec. 91.326(b) to 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. Specifically, Sec. 91.326(b) proposed that any person who
wants to conduct flight training, checking, or testing in limited
category and experimental aircraft outside the restrictions and
limitations of proposed Sec. 91.326(a) (changed to Sec. 91.326(c) in
this final rule) must apply for deviation authority.
Particularly, proposed Sec. 91.326(b)(1) functioned to clarify
that operators would be granted relief from Sec. 91.315 or Sec.
91.319(a) through a LODA. In addition, the FAA proposed 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 if at any time the Administrator
determines that the deviation is no longer necessary or in the interest
of safety. Section 91.326(b)(3) proposed a timeline for operators to
submit LODA applications, the form and manner requirements for
submission, and the information that the applicant must provide.
Section 91.326(b)(4) would permit the Administrator to continue
prescribing conditions and limitations in LODAs for experimental
aircraft and extended that allowance to LODAs issued for training,
testing, and checking in limited category aircraft when necessary for
safety. To note, the FAA published and sought comment on a draft AC,
which was placed in the docket upon NPRM publication, that provided a
full list of conditions and limitations in Table 4, ``Additional
Limitations.'' Proposed Sec. 91.326(b)(5) would limit the persons
permitted to be on board an aircraft during operations under a LODA:
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. Finally, proposed Sec. 91.326(b)(6) would limit
the types of training, testing, and checking that may be authorized
under the deviation authority.
The following sections describe commenters' discrete issues on
paragraph (b) and resulting revisions. Except as described in the
following sections, Sec. 91.326(b) is adopted as proposed.
i. Specificity
The FAA received feedback regarding the specificity of Sec.
91.326(b). EAA expressed concern that Sec. 91.326(b) was written with
unnecessary specificity and may lead to future inflexibility. EAA
recommended that the FAA reduce the text in Sec. 91.326(b) to the
minimum necessary to establish a safe and efficient LODA framework.
Further, EAA recommended that the FAA administer more specific
requirements on LODAs through policy by deleting the paragraphs
proposed under Sec. 91.326(b)(3) (enumerating the requirements to be
included in the LODA request) and simply requiring the request for
deviation to contain a complete description of the proposed operation
which establishes a level of safety equivalent to that provided under
the regulations for the deviation requested in a manner acceptable to
the Administrator.
While the FAA agrees that Sec. 91.326(b) as proposed is specific
as to what the LODA request must include, the FAA finds it is not
unnecessarily so. Under the Administrative Procedure Act, agencies may
promulgate rules that describe the agency's procedures using
[[Page 80326]]
notice-and-comment rulemaking.\77\ The FAA drafted Sec. 91.326(b) to
adequately explain its proposed procedures to apply for and receive
deviation authority under the regulation. Because the requirements in
Sec. 91.326(b) are generally applicable to all LODA applicants and
holders, it is appropriate that they should be memorialized in
regulation instead of in guidance material or through policy.
---------------------------------------------------------------------------
\77\ Administrative Procedure Act, 5 U.S.C. 551 et seq.
---------------------------------------------------------------------------
Furthermore, notice-and-comment rulemaking provides the public the
opportunity to participate in rulemaking through submission of written
data, views, or arguments.\78\ If the FAA chose to issue the procedures
under which deviation authority is authorized as policy or guidance,
the public may not have the same opportunity to provide comments on
them, nor would the public be adequately informed of the information
they are required to provide. Additionally, shortening the description
of procedures described in Sec. 91.326(b) could lead to additional
confusion due to a lessened degree of specificity on the process in the
regulation.
---------------------------------------------------------------------------
\78\ Administrative Procedure Act, 5 U.S.C. 553.
---------------------------------------------------------------------------
ii. FAA Ability To Deny an Application for a LODA
Proposed Sec. 91.326(b)(2) set forth that the FAA could cancel or
amend a LODA upon a determination that the deviation holder failed to
comply with the conditions and limitations or if at any time the
Administrator determines that the deviation is no longer necessary or
in the interest of safety. Historically, the FAA has denied an
application for a LODA if it determines the proposed deviation would
not be in the interest of safety or is unnecessary. For example, if an
applicant were to request a LODA to provide Sec. 61.56 flight reviews
to trainees who do not have a specific need to receive a flight review
in an aircraft with a special airworthiness certificate, the FAA would
deny the application because there are a sufficient number of aircraft
with standard airworthiness certificates in which a person could
receive a flight review. Similarly, the FAA finds it necessary to
memorialize this discretion when considering whether to grant or deny a
LODA under Sec. 91.326. Therefore, the FAA is adding language to Sec.
91.326(b)(2) to parallel the language in proposed paragraph (b)(2) to
memorialize its discretion to deny an application for a LODA based on
safety or necessity determinations.
iii. Removal of Requirement To Submit Previous Exemptions With LODA
Application
Additionally, proposed Sec. 91.326(b)(3)(vi) would have required
an applicant to submit copies to the FAA of each exemption issued to
that applicant as part of the LODA request. This final rule removes
this requirement from the list of information required to be submitted
with a request for a LODA. The FAA reviewed this requirement during the
pendency of this rulemaking and finds it is no longer necessary to
require this submission by the applicant, as exemptions are maintained
by the FAA and can be researched and reviewed utilizing internal
databases. In turn, this removal redesignates each following paragraph
(i.e., proposed Sec. 91.326(b)(3)(vii) requiring a detailed training
program is adopted as paragraph (b)(3)(vi), proposed Sec.
91.326(b)(3)(viii) requiring certain descriptions of the applicant's
process is adopted as paragraph (b)(3)(vii), etc.).
iv. Specific Need for Certain Training (Proposed as Sec.
91.326(b)(3)(viii))
The FAA proposed to add Sec. 91.326(b)(3)(viii) to require a LODA
applicant to submit a description of the applicant's process to
determine whether a trainee has a specific need for formation or
aerobatic training, or training leading to the issuance of an
endorsement, if that LODA applicant seeks to offer such training. To
note, the submission would be required to describe how the LODA
applicant would determine whether a trainee has a ``specific need'' to
receive such training. The NPRM identified some examples of trainees
with a ``specific need,'' including aircraft builders and owners. The
aircraft proposed to be used for training requiring a ``specific need''
under a LODA must have handling qualities and flight characteristics
similar to those of the aircraft being built or flown by the trainee.
The FAA noted that trainees should have regular access to substantially
similar aircraft as those used for training requiring a ``specific
need,'' and would benefit from the additional training under a LODA, as
training can expand pilot skills that are transferrable to the aircraft
they will regularly fly. Persons without a specific need can receive
aerobatic training, formation training, or training leading to the
issuance of an endorsement in an aircraft holding a standard
airworthiness certificate.
EAA stated that they appreciated the FAA's proposed flexibility in
expanding the list of eligible LODA training to include endorsements
and formation and aerobatic training; however, EAA opposed the proposal
of Sec. 91.326(b)(3)(viii) requiring a trainee to have a specific need
to receive certain types of flight training under a LODA. First, EAA
asserted that certificated pilots are not members of the unknowing
public, and they are qualified to make decisions on managed risks,
resulting in many safety-related reasons why they may choose to pursue
training in these types of aircraft, including, for example, safety
benefits in training in unique and challenging aircraft. EAA also
described other types of training available under a LODA without the
demonstration of a ``specific need,'' including type-specific
transition and turbojet unusual attitude and upset recovery training.
EAA stated that a more diverse training fleet (including experimental
and limited category aircraft) will offset any risk of training in
those aircraft given the appropriate mitigations contained in the rule
and policy, although its comment provided no data to support that
assertion. Finally, EAA pointed out that various types of training may
align with a pilot's interests and may be tangential to other flight
training. In sum, EAA, first, renewed its recommendation to remove the
entirety of the paragraphs proposed under Sec. 91.326(b)(3) or, more
narrowly, recommended removal of proposed Sec. 91.326(b)(3)(viii).
Historically, the FAA has limited the types of flight training
available under a LODA.\79\ Consistent with the historical rationale
for limiting operations authorized under a LODA, the primary reason
such operations remain limited is because these kinds of flight
training are readily available in aircraft holding standard
airworthiness certificates. The FAA recognizes that there is value in
receiving flight training in an aircraft similar to that which the
trainee will regularly operate. Likewise, there is value in receiving
certain specialized training (such as aerobatics and
[[Page 80327]]
formation) when the trainee plans to conduct that type of flying after
training in an aircraft with substantially similar handling
characteristics. For these reasons, the FAA proposed to expand the
types of training authorized under a LODA to include aerobatics and
endorsements, but only for persons with a specific need, as previously
described, to receive that training in an aircraft holding a special
airworthiness certificate. However, the FAA declines to permit these
operations as broadly as these operations may be conducted in a
standard category aircraft.
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\79\ See FAA Order 8900.1, Vol. 3, Ch. 11, Sec. 1, Use of
Aircraft Issued Experimental Certificates in Flight Training for
Compensation or Hire, dated 5/24/2011, para. 3-293(B)(2) which
states, ``The FAA will issue training deviations to permit the
conduct of training that can only be accomplished in aircraft with
experimental certificates. LODAs should not be issued to permit
flight training in experimental aircraft leading toward the issuance
of a pilot certificate, rating, or operating privilege.'' Likewise,
the same paragraph states, ``LODAs also should not be issued to
permit flight training such as aerobatics or training leading to the
issuance of an endorsement (e.g., tailwheel or pressurized aircraft,
or a complex or high performance airplane). This training is
available in aircraft holding Standard Airworthiness Certificates
and it is therefore not acceptable to issue a LODA for the purpose
of conducting such training.''
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The use of aircraft holding special airworthiness certificates for
unfettered training undermines the foundational safety considerations
for rigorous certification standards required to achieve a standard
airworthiness certificate. Standard category aircraft are designed and
tested for safety and reliability in accordance with FAA certification
standards, whereas aircraft holding special airworthiness certificates
are not. Broadly expanding operations authorized under a LODA could
encourage flight schools and other part 61 flight training providers to
replace their proven standard category aircraft with less expensive
experimental versions, which could have a detrimental effect on safety
(e.g., by increasing the accident rate during training) due to the fact
that experimental aircraft do not meet a certification standard and
have not demonstrated reliability to the FAA.
Although EAA reasoned that certificated pilots who undertake flight
training are not members of the unknowing public, and that other types
of training are available under a LODA without a specific need, the FAA
does not agree that all types of training should be made available
under a LODA. The FAA is making a distinction and limiting eligible
types of training under a LODA to training that is not readily
available in aircraft holding standard airworthiness certificates (for
example, training toward experimental authorizations and limited
category type ratings, and jet unusual upset and recovery training), or
certain training which may be available in aircraft with standard
category airworthiness certificates (for example, aerobatics and
training leading to endorsements), but which the trainee has a specific
need to receive under a LODA. The primary reason for limiting flight
training as described is to minimize exposure in aircraft that are
inherently less safe, even when trainees may be in a position to accept
risk. Pilots are not trained and tested on the differences between
experimental aircraft and aircraft with standard airworthiness
certificates as part of any pilot certification (e.g., private,
commercial, etc.): therefore, these persons may not have the necessary
information or knowledge to accept all risks associated with these
aircraft just because they may be engaging in training, checking, or
testing. Likewise, persons undergoing flight training span a large
spectrum of knowledge, from a student on their first flight to a person
in the final stages of flight training prior to taking a check ride.
For these reasons, the FAA will continue to limit the types of training
offered under a LODA and will finalize the regulation as proposed.
Therefore, in the final rule, the FAA maintains the requirements in
Sec. 91.326(b)(3)(viii) as proposed. The FAA notes that, because of
the removal of proposed Sec. 91.326(b)(3)(vi), as previously
discussed, this provision is redesignated as Sec. 91.326(b)(3)(vii).
v. LODA AC Limitations Moved to Regulation
As previously noted, the FAA simultaneously published the LODA
Advisory Circular (AC) with the NPRM in June 2023. This AC included
Table 4, ``Additional Limitations,'' which the FAA explained contained
the full list of conditions and limitations imposed with a LODA. These
conditions and limitations add risk mitigations for specific
operations. The FAA sought comment on the AC in tandem with the NPRM,
specifically requesting feedback on Table 4 in the AC.\80\ During the
pendency of the rulemaking, the FAA examined the overarching
applicability of each of the operating limitations as set forth on
current LODAs and as set forth in the AC. While these operating
limitations were originally in Table 4 of the AC, the FAA has
determined these must be included in regulation rather than in guidance
because they are rules of general applicability to all LODA holders.
This means that the additional limitations would uniformly be applied
to all LODA holders unless an applicant requests a modification (in
which case, the FAA will have the opportunity to evaluate whether the
request is in the interest of safety). Additionally, while the FAA
cedes these operating limitations were not set forth in the proposed
regulations themselves, the FAA finds that the public had sufficient
notice via publication in the docket and an opportunity to comment on
Table 4's operating limitations during the comment period. Notably, the
limitations and table have been removed from the final AC and inserted
into regulation through this Final Rule.
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\80\ 88 FR 41194 at 41212.
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In sum, the following limitations have been adopted in Sec.
91.326(b)(4):
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\81\ To note, these changes do not add any major substantive
requirements to the limitations as set forth in the proposed AC.
----------------------------------------------------------------------------------------------------------------
Final rule
AC Table 4 citation regulatory Operating limitation Change from AC to final
citation rule \81\
----------------------------------------------------------------------------------------------------------------
No. 1........................... Sec. The operator must use the No change.
91.326(b)(4)(i). aircraft-specific flight and
ground training program for the
training authorized by the LODA.
Demonstration flights, discovery
flights, experience flights, and
other flights not related to the
training program are not
authorized.
No. 2........................... Not applicable.... Persons conducting instruction This operating
under this LODA (Sec. limitation was not
91.326(5)):. adopted into Sec.
<bullet> Must be qualified to act 91.326(b)(4) because
as PIC in the aircraft being the requirements for a
flown. flight instructor to
<bullet> Must hold a Certificated be qualified to act as
Flight Instructor (CFI) PIC in the aircraft
certificate or be otherwise and hold a flight
authorized by the Administrator instructor certificate
to provide flight training in to conduct flight
the specific aircraft. training were already
required by the Sec.
61.1 definition of
``authorized
instructor'' and by
Sec. Sec. 61.193
and 61.413, rendering
this operating
limitation
duplicative.
[[Page 80328]]
No. 3........................... Sec. As appropriate to the aircraft Addition of the
91.326(b)(4)(ii). being flown, all trainees must language low mass,
hold: a category and class high drag aircraft
rating; a type rating, with an empty weight
Authorized Experimental Aircraft less than 650 pounds
authorization, or temporary in item 1 because the
Letter of Authorization; and omission from the AC
endorsements listed in Sec. was an oversight, as
61.31, as appropriate, with the noted by EAA; minor
following exceptions: editorial revisions.
1. Persons receiving gyroplane
training or training leading to
the initial issuance of a sport
pilot certificate or flight
instructor certificate with a
sport pilot rating in a low
mass, high drag aircraft with an
empty weight less than 650
pounds and a VH <= 87 Knots
Calibrated Airspeed (KCAS) are
not required to hold category or
class ratings. For training
leading to an endorsement for
additional sport pilot
privileges, the pilot receiving
the training must hold at least
a sport pilot certificate with
appropriate category and class
ratings and endorsements issued
under Sec. 61.31, as
appropriate..
2. Persons with a specific need
to receive training toward the
issuance of an endorsement are
not required to hold the Sec.
61.31 endorsement sought. Any
endorsements being provided must
be authorized in the LODA..
3. Persons receiving jet unusual
attitude and upset recovery
training, limited category type
rating training, or authorized
experimental aircraft
authorization training, if
required for the type of
aircraft being flown, are not
required to hold the applicable
type rating, authorized
experimental authorization
rating, or a temporary Letter of
Authorization, prior to the
commencement of training..
4. For ultralight-style training,
the person receiving training is
not required to meet category
and class ratings or Sec.
61.31 endorsement requirements.
However, if the flight training
includes a solo flight segment,
this does not relieve the person
receiving training from the
requirements of part 61, subpart
C. This training is limited to a
low mass, high drag aircraft
with an empty weight less than
650 pounds and a maximum speed
in level flight with maximum
continuous power less than 87
KCAS..
No. 4........................... Sec. If the aircraft is equipped with No change.
91.326(b)(4)(iii). ejection seats and systems, such
systems must be rigged,
maintained, and inspected in
accordance with the
manufacturer's recommendations.
Before providing training in
aircraft equipped with operable
ejection systems, whether armed
or not armed, all aircraft
occupants must complete a course
of ejection seat training.
No. 5........................... Sec. When conducting spin and upset Addition of ``unless
91.326(b)(4)(iv). training, the operator must the Administrator
maintain a minimum recovery authorizes a lower
altitude of 6,000 feet above altitude'' to provide
ground level unless the operational
Administrator authorizes a lower flexibility when
altitude. warranted.
No. 6........................... Sec. A copy of the LODA must be No change.
91.326(b)(4)(v). carried on board the aircraft
during flight training conducted
under the LODA.
No. 7........................... Sec. The LODA holder must keep a Minor editorial
91.326(b)(4)(vi). record of the training given for revisions.
a period of 36 calendar months
from the completion date of the
training. The authorized
instructor must sign the
trainee's flight training
records certifying that the
flight training or ground
training was given. The training
record must include the
following:
1. The name and certificate
number (if applicable) of the
trainee;.
2. The name, signature, and
certificate number of the
instructor;.
3. The date trained;.............
4. The training received;........
5. The trainee's specific need
for training, if applicable..
[[Page 80329]]
No. 8........................... Sec. Notwithstanding Sec. 43.1(b) or Addition of: reference
91.326(b)(4)(vii). Sec. 91.409(c)(1), all to Sec. 43.1(b),
aircraft must: exception to turbine
1. Except for turbine powered or powered or large
large aircraft, within the aircraft, and appendix
preceding 100 hours of time in D to part 43 (to
service, have received an clarify the scope and
annual, 100-hour, or condition detail necessary of
inspection equivalent to the the long-standing
scope and detail of part 43, requirement for
appendix D, and been approved aircraft operating
for return to service in under a LODA to have
accordance with part 43. The 100- an annual, 100-hour,
hour limitation may be exceeded or condition
by not more than 10 hours while inspection every 100
enroute to reach a place where hours), and
the inspection can be done. The flexibility to allow
excess time used to reach a an exceedance of this
place where the inspection can limit for certain
be done must be included in purposes.
computing the next 100 hours of
time in service; or.
2. Except for turbine powered or
large aircraft, be inspected in
accordance with an FAA-approved
inspection program that includes
provisions for ensuring
continued airworthiness and
recording the current status on
life-limited parts and in
accordance with the
manufacturer's instructions..
3. For turbine-powered or large
aircraft, be inspected in
accordance with an FAA-approved
inspection program that meets
the scope and detail of the
requirements of Sec.
91.409(e), (f)(4), and (g) for
ensuring continued airworthiness
and recording time remaining on
life-limited parts in accordance
with the manufacturer's
instructions..
No. 9........................... Sec. Notwithstanding any exception due Notwithstanding
91.326(b)(4)(viii to the experimental language added to
). airworthiness certification of clarify the
the aircraft, LODA holders with requirement for
experimental aircraft must compliance with
comply with FAA Airworthiness Airworthiness
Directives applicable to any Directives.
corresponding make or model
aircraft holding a different
type of airworthiness
certificate or applicable to any
article installed on the
aircraft. The LODA holder must
evaluate the aircraft and its
articles to determine if
compliance with the FAA
Airworthiness Directive is
necessary for the continued safe
operation of the aircraft. LODA
holders must keep a maintenance
record entry of those FAA
Airworthiness Directives
evaluated. For those FAA
Airworthiness Directives for
which the LODA holder determined
compliance was necessary for the
continued safe operation of the
aircraft, the record must also
include the method of
compliance, and if the FAA
Airworthiness Directive requires
recurring action, the time and
date when the next action is
required.
No. 10.......................... Not applicable.... The responsible person accepts This operating
responsibility for complying limitation was not
with the requirements of the adopted in regulation
conditions and limitations of because Sec.
this LODA by signing this 91.326(b)(3)(ii)
document. If the responsible requires
person relinquishes identification of an
responsibility, this LODA individual with
becomes invalid. The name, email ultimate
address, and telephone number of responsibility for
the responsible person signing operations under the
this LODA must be listed in the LODA. This person will
LODA (Sec. 91.326(b)(4)). be listed on the LODA.
Therefore, limitation
No. 10 was repetitive.
----------------------------------------------------------------------------------------------------------------
Finally, in this final rule, the FAA adds the language ``unless
otherwise authorized by the Administrator'' to the introductory
paragraph of Sec. 91.326(b)(4). While the provisions of Sec.
91.326(b)(4) are generally applicable, the FAA recognizes there may be
circumstances unique to the LODA operation sought that may warrant
flexibility and could still be conducted safely. In general, when a
person seeks to operate contrary to a regulation, they must petition
for exemption under part 11, which requires that they must also have a
public interest to support the petition. Because specific changes that
a unique LODA applicant may request may not benefit the public as a
whole (e.g., individualized circumstances), exemption criteria would
not be met. This addition enables individualized assessment of the
addition or removal of conditions and limitations to a LODA, thereby
increasing flexibility while still maintaining specificity of the
conditions and limitations that will generally be applied to all
applicants in the regulation.
vi. Persons Permitted on Board During Operations Under a LODA
The NPRM proposed to add Sec. 91.326(b)(5) to limit the persons
permitted to be on board an aircraft during operations under a LODA to
only the authorized instructor, designated examiner, person receiving
flight training or being checked or tested, or persons essential for
the safe operation of the aircraft. This is because, as previously
described in this preamble, 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. Also, additional persons on board
who are not directly related to flight training could cause unnecessary
distractions during flight training, posing a risk to trainees.
Therefore, the FAA proposed to limit persons on board to those
authorized instructors, designated examiners, persons receiving flight
training (or being checked or tested), and those persons ``essential
for the safe operation of the aircraft'' to ensure those persons
performing certain crucial functions are not excluded from facilitating
a safe aircraft operation.\82\ Outside of the
[[Page 80330]]
personnel delineated in the proposed Sec. 91.326(b)(5), the proposal
did not contemplate the additional carriage of persons on board the
aircraft even with the issuance of a LODA.
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\82\ See 88 FR 41194 at 41212 for comprehensive discussion on
the FAA's analysis of who would be considered a person conducting
functions ``essential for the safe operation of the aircraft.''
---------------------------------------------------------------------------
Champaign Aviation Museum (CAM) and EAA specifically opposed the
proposal to add Sec. 91.326(b)(5). CAM commented that the ability for
an additional pilot to be included during a training flight is
important, regardless of whether the operation is conducted under a
LODA. CAM described four scenarios whereby an additional person who
would otherwise be prohibited by Sec. 91.326(b)(5) should be permitted
to be on the aircraft during operations under a LODA. The four
scenarios set forth by CAM described the additional extra person(s):
<bullet> New SICs to see the checklist process and Crew Resource
Management (CRM) from an instructor, watch a flight crew conduct
training, and listen to crew coordination from a jumpseat;
<bullet> Observing procedures and operations by another pilot (with
an instructor in the right seat) when two pilots are training for the
same type rating;
<bullet> An instructor in the jumpseat to observe and provide
feedback on CRM for a new pairing of captain and SIC who have not
otherwise flown together; and
<bullet> Training in an aircraft to an airport with long runways
for new volunteer pilots who have little experience in the
corresponding braking mechanisms to reduce burden on landing just to
switch training pilots (e.g., B-25 training).
CAM also expressed concern that Sec. 91.326(b)(5) might be
construed to prohibit additional persons onboard during non-LODA
operations, as described in some of the referenced scenarios.
EAA and Warbirds of America (WOA) sought expanded flexibility for
more than one person receiving training during the course of a given
flight. Specifically, EAA and WOA stated that it is a common practice
in larger warbird aircraft to carry multiple students on a given flight
and rotate them through the appropriate pilot seat for flight training.
EAA explained that this allows, for example, multiple students to train
air work tasks at altitude with a single takeoff and landing, which
would save fuel, resources, and time. EAA asserted that students not
actively receiving flight instruction are still educated by the
opportunity to observe other students, similar to some of CAM's
provided examples. Likewise, EAA stated that the presence of those
students is germane to the purpose of the flight, and they are not
receiving an inappropriate ``ride.'' EAA proposed a regulatory text
change in Sec. 91.326(b)(5) indicating persons, in the plural, could
be receiving flight training under the provision,\83\ claiming a legal
interpretation of Sec. 61.129 supported this change.\84\ EAA asserted
that this legal interpretation further supports a precedent that
persons not seated at a pilot station could be on board the aircraft
for ``instructional purposes.''
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\83\ EAA's comment also noted the location in the draft AC where
this change would need to be effectuated, if adopted in the final
rule.
\84\ Legal Interpretation to John Olshock (May 4, 2007). EAA
summarizes the legal interpretation as making several references to
the instructor having discretion over the number of persons onboard
the aircraft and concludes with the statement ``the instructor also
may permit others on board for instructional purposes.''
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Section 91.326(b)(5) will apply only to those operations conducted
under a LODA and will not apply to other types of operations. Persons
who may be carried during operations conducted outside the parameters
of a LODA are limited by Sec. 91.315 for limited category aircraft,
Sec. 91.319(a) for experimental aircraft, and any other applicable
regulations (e.g., Sec. 91.9(a)). In certain circumstances, carriage
of an observer may be in violation of other regulations, regardless of
whether the operation is conducted under a LODA (e.g., Sec.
61.55(f)(3) and (h)(2)). For example, CAM referenced flight training in
a North American B-25 while carrying a person observing the flight
training, where the observer would not be sitting at a required crew
station and, therefore, is not actively receiving flight training.\85\
Notably
[…truncated; see source link]Indexed from Federal Register on October 2, 2024.
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.