Most owners of experimental aircraft no longer need special authorization to get training or checkouts thanks to a notification of policy published by the FAA on Feb. 8. The relief from the requirement for a letter of deviation authority (LODA) for paid training in an experimental airplane was in the James M. Inhofe National Defense Authorization Act passed by Congress in late 2022 and relieved a paperwork nuisance for owners and CFIs. The measure eliminates the LODA requirement in cases where the instructor doesn’t own the plane, the plane isn’t advertised as a flight training platform and the plane isn’t rented as a training aircraft. Basic expenses can be recovered, however. EAA announced the policy’s publication earlier this week.
The LODA measure was initiated in 2021 when a court ruled that almost all flight training in non-certified aircraft violated FAR 91.319(a)(2), which outlaws flying experimental aircraft for hire. But it also affected thousands of owners of homebuilts who often hire CFIs to train them and check them out in their creations. EAA joined other GA groups in protesting the LODA requirement and signed off on the wording of the Inhofe bill. Anyone offering training in an experimental aircraft and charging money for the aircraft rental will continue to require a LODA. The new policy does not include aircraft in the Primary and Limited categories.
The full text of the policy is as follows:
A flight instructor, registered owner, lessor, or lessee of an aircraft shall not be required to obtain a letter of deviation authority from the Administrator of the Federal Aviation Administration to allow, conduct or receive flight training, checking, and testing in an experimental aircraft if–
(1) the flight instructor is not providing both the training and the aircraft;
(2) no person advertises or broadly offers the aircraft as available for flight training, checking, or testing; and
(3) 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.
This was not a good solution: it addresses a very narrow aspect of the problem created by that court ruling, but not the broader implications for flight instruction. Worse yet, it doesn’t even address the problem.
The “solution” says FAA may not require a LODA. It does NOT say that FAA must allow the practice at all.FAA would be entirely within its authority to simply ban flight instruction in Experimental aircraft; or to impose requirements other than a LODA. Just saying.
Moving on to the broader implications, the court ruled that giving flight instruction in an Experimental, and being paid for the flight instruction but not for the use of the aircraft, constituted “carrying passengers or property for compensation or hire.” In other words, it was not “giving flight instruction – and only flight instruction – for compensation or hire”.
That “and only flight instruction” interpretation is crucial to our whole system of flight instruction, and as of this morning the court’s ruling, rejecting it, still stands.
That’s a problem because our system of flight instruction relies on the idea that giving flight instruction for pay does not constitute “operating an aircraft for compensation or hire”. The thing is that “operating an aircraft” has a much broader definition than merely “carrying passengers or property”. It includes “use, cause to use or authorize to use aircraft, for the purpose of air navigation including the piloting of aircraft, with or without the right of legal control”. With the “the pay is only for the flight instruction” interpretation having been rejected, some judge – perhaps ignorant of the background but perhaps nudged by FAA lawyers or perhaps by lawyers in a civil lawsuit – is surely going to rule that flight instruction includes “using” or “piloting” or at least “authorizing the piloting” of aircraft. In other words, it is “operating an aircraft for compensation or hire”.
Once that happens, flight instruction will require a commercial certificate and a Class 2 Medical.
The original proposal to address the LODA problem said that flight instruction would not be deemed to be “carrying passengers or property for hire” and this proposal was rejected. Why? I fear there may be a lobby within the FAA with a broader agenda related to flight instruction and commercial/Class 2. If so, we’re not going to like it.
Well when I bought an RV6 last summer I didn’t have any problem getting a CFI to give me transition training – so I wouldn’t harm myself or the plane and could meet my insurer’s requirement for coverage. Didn’t even realize we were apparently breaking some completely non-sensical rule.
You might be fine — for a while, at least, CFIs were able to get a “blanket” LODA that covered any aircraft they trained in. It *is* a nonsensical rule and that was not the only nonsense that emanated from that very poorly reasoned court case.