FAA Clarifies Flight Training Policy For Limited Category Aircraft

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In advance of an official statement, the FAA has clarified its stance on how a recent federal court ruling will affect compensated flight training in limited, experimental and primary category aircraft. According to a June 4 letter (PDF), the agency has taken the position that “a flight instructor who is operating (i.e. “using”) a limited category aircraft that is carrying a person (i.e. the person receiving instruction) for compensation (i.e. payment) is acting contrary to the regulation [14 CFR §91.315]” that prohibits carrying people or property for compensation or hire in a limited category aircraft. The FAA also noted that the regulations governing experimental and primary category aircraft—sections 91.319 and 91.325—mirror the language in 91.315 and therefore must be interpreted to have the same meaning and restrictions.

Under this interpretation, owners of aircraft governed by those regulations would be unable to receive flight instruction in their planes without specific permission from the FAA in the form of an exemption or Letter of Deviation Authority (LODA). Labeling the agency’s stance a reflection of “unnecessary and unwarranted guidelines based upon irrational legal positions,” a group of eleven aviation organizations, including the Aircraft Owners and Pilots Association (AOPA), Experimental Aircraft Association (EAA), General Aviation Manufacturers Association (GAMA) and National Business Aviation Association (NBAA), responded to the FAA in a joint letter (PDF) calling for an immediate revision of the agency’s position. The groups cited concerns with a potential degradation in safety caused by limiting access to flight training in specific aircraft makes and models and prohibiting owners from receiving flight instruction in their own aircraft along with the likelihood for bureaucratic overload stemming from a significant increase in requests for exemptions.

“Why the FAA would want to diminish the flight training that made the U.S. aviation system the safest in the world boggles the mind, but that’s what these new policies will do,” said EAA CEO Jack Pelton. “For years, the FAA has correctly stated that training in the specific make and model of aircraft to be routinely operated, with a well-qualified instructor, is the best training. These policies would unnecessarily limit that access and measure of safety.”

As previously reported by AVweb, the issue stems from an April 2 ruling by U.S. Court of Appeals for the District of Columbia Circuit denying a petition to review an emergency cease-and-desist order issued by the FAA against Florida-based “vintage” flight school Warbird Adventures. In that ruling, the court emphasized that 91.315 prohibits carrying people or property for compensation or hire in a limited category aircraft like Warbird’s Curtiss P-40N, further stating that using an aircraft for paid flight training qualified as flight for compensation. “When a student is learning to fly in an airplane, the student is “carr[ied],” the court wrote in its decision (PDF). “And when the student is paying for the instruction, the student is being carried ‘for compensation.’”

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21 COMMENTS

  1. Yes, it’s kind of fudging the rules when we claim it’s flight instruction but we’re really “going for a ride”. This is why we sign waivers before getting a ride in an ultralight or gyrocopter. Of course, the difference may be that a limited or true experimental may not be very safe to be used for commercial rides. As usual one size does not fit all. Taking up an instructor in your RV-8 is not the same as a joy ride in a P-40.

    • It was not mentioned, but I still feel there is likely a difference between the typical pilot flying with an instructor in their homebuilt and the situation that was ruled on. In most cases, the pilot flying with the instructor in their RV-8 is doing it for insurance, BFR or some other reason like that. In these cases, the pilot is qualified as PIC and the instructor is not legally required to be there. In the cases of abuse, this is not the situation. (Now if they are not current and need a BFR, is this a different situation since the instructor is required?)

      Still, for warbirds or any other special category aircraft that requires an LOA to fly, the FAA will have to give permission for the initial flight training.

  2. 100% with Jack Pelton on this one. If the FAA has been promoting a policy inconsistent with published regulations, why haven’t they addressed the regulations if improved safety would be the result? From what I can make of it, the practice is and will continue to be approved with a LODA on file. Why can’t the FAA be required to have a plan in place to deal with the likely LODA logjam before issuing its statement?

  3. I’m with “Avweb User” on this one. There has been some serious abuse by some companies calling scenic rides or joy rides “flight instruction”, but whose actual reason for existence is to provide what basically amount to joy rides. (I also know of some flight schools who used to give “flight instruction” when a customer wanted a scenic ride that was beyond the allowable range for a scenic flight under the regs.) It finally caught up to them. Unfortunately, the FAA *REALLY* blew it with their response. Write some consequences for abuse into the law, and come down hard on those who do abuse it. Don’t throw out the baby with the bath water.

  4. After reading the FAA PDF, it is clear to me nothing has really changed. For those who want instruction in limited category of aircraft or experimentals a LODA is mandatory. For those who want to offer flights in warbirds a Living History Flight Exemption. Did Warbird Adventures meet those requirements. Judging from their website and personally seeing their activities at SNF, it would seem to me they would require both. SNF is not the time or place for a P-40 checkout. But it is the time and place for a warbird joyride.

    At this point, the court case and subsequent ruling seems to imply Warbird Adventures might not have met the LODA and LHFE requirements at the same time. If they have not met both, I can see why the court and the FAA ruled as they have done. As the Collings B-17 crash brought on scrutiny of living history flights, it put any warbird living history flight organization on notice to be in compliance with the existing rules and regulations. If Warbird Adventures were flying warbird joyrides under the disguise of warbird flight training, then they violated their LODA. If they are giving flight instruction under LHFE, they are violating that exemption.

    While EAA, AOPA, and GAMA was looking for a more defined and relaxed rules for flight instruction for limited and experimental aircraft as a result of this court case, the appeals ruling in this case does not change any of the rules, regs, or requirements that have so far been working reasonably well. Stallion 51 and other similar operations seem to operating just fine. I don’t see any changes in experimental instruction policies either.

    The FAA admits safety increases when flight instruction is given in the experimental or limited category aircraft built, owned or intended for purchase and wants to cooperate in permitting such training. The FAA is also looking for ways to streamline the LODA procedures. It looks like this case pushed to the surface an operation that might have abused the LODA and/or LHFE regs and got caught. The positive side of all of this is the FAA may provide a more streamlined process to speed up the LODA process now that the LODA process has been spotlighted by this court case. Hope springs eternal.

  5. So I guess if FAA policy applied in Canada that would be another nail in the coffin of the Martin Mars, which Coulson was offering training in.

    (Mostly to experienced pilots wanting the experience of flying a large flying boat and getting the endorsement to brag about.
    But also once to a group of test pilots from Communist China to get experience in water handling of a large flying boat, prior to flying one under development in CC.)

    BTW, placing the Mars in a museum in the US was blocked by constipated bureaucrats in Canada and the US because it and the C-130 parts that Coulson wanted in trade for it are ‘arms’ as are C-130 parts. (Never mind there are commercial C-130s, never mind that Coulson operates his C-130/L382/Hercules in the US not Canada. Canada adheres to US rules on arms, mostly.) Endless wrangling that got nowhere.

    [I had brief dealings with EAR/ITAR bureaucrats, a problem is knowledge of technology and business is not required to be a functionary.
    Those are the types that do not fight wars well. A lesson from D-Day whose anniversary was a few days ago – one of the most successful of the Allied invading land forces was the Canadian army because it delegated more to field commanders, soldiers were well trained, and took initiative wisely.]

    (Coulson even had the Mars painted in original USN colours and positioned to YYJ in preparation for delivery to the museum. It is probably back at Sproat Lake near Port Alberni BC, up on the shore on beaching gear.
    One museum wanting a Mars is in the city of the factory (Baltimore?), the other IIRC in Florida – probably the one the deal was made with, perhaps the National Naval Aviation museum near Pensacola.
    The city of Port Alberni wants one but probably can’t afford it even if Coulson gave it to them, which he was not inclined to do.
    The Mars is renowned in BC forestry, Dan McIvor set it up for private land owners on Vancouver Island, but the gummint of BC scorns it – politics IMJ. It offers a big dump of water with foam or gel injection optional, to penetrate forest canopy into narrow canyons or spread a fire break line faster than a gaggle of small tankers (using staged opening of drop doors).)

    https://en.wikipedia.org/wiki/Martin_JRM_Mars

  6. So basically, all they have “clarified” is that they consider a flight instructor being hired to fly rather than teach in anything other than a standard certified aircraft. This is extremely dangerous because all it will take for them to consider all flight instructing as “compensation or hire” is one “flight school” giving joyrides in standard aircraft and calling it “instruction”, and then getting brought to court. And if that should happen, they’ve basically destroyed almost the entire flight instructing community. It will mean every flight instructor will need a 2nd-class medical even if they’re just acting as a safety pilot but expect to get paid.

    All they needed to do was make it clear that the few business that are falsely advertising themselves as “flight schools” but really just offering tours and joyrides would be shut down.

  7. “And when the student is paying for the instruction, the student is being carried ‘for compensation.’”

    What makes this issue even more convoluted is “compensation.” A “regular” CFI, acting as a CFI, is considered providing “instructional services” and not “pilot services” even if the CFI is paid in cash and/or is logging the time as PIC. (BTW logging PIC time is considered “something of value” by the FAA). Additionally, for the former, a 3rd class medical or BasicMed is required; for the later a 2nd class medical.

    The issue is: if the CFI is not paid in cash and is providing instruction in aircraft categories mentioned, how does this change the argument?

    • Actually, a CFI simply providing instruction to a rated-and-current pilot in the aircraft being flown doesn’t even need any medical certificate, whether or not they are paid. A CFI only needs a 3rd or BasicMed if they are also acting as PIC. At least, that’s how it used to be, before the FAA tripped up on its own regs and back-pedaled against their own long-standing policy that instructors are paid for their instruction, not their flying.

      • I agree with Gary that a medical or BasicMed is not needed, but does restrict the CFI considerably. Cannot do IPCs (if a “II”), cannot provide instrument instruction for commercial and ATP applicants or any time a pilot manipulating the controls is under the hood, for example during a flight review. And of course for student pilots, he/she needs be acting as PIC.

        The point I was trying to make was that because only a 3rd class or BasicMed is acceptable is consistent that a CFI is not providing pilot services which would require a commercial or ATP and a 2nd class medical.

  8. Once again, Aviation needs a Congressman to write and sponsor a rule change to the CFR’s. My opinion is that Aviation builds around this regulation:
    “91.146 Passenger-carrying flights for the benefit of a charitable, nonprofit, or community event.

    (1) The flight is nonstop and begins and ends at the same airport and is conducted within a 25-statute mile radius of that airport”

    Who cares what category of aircraft? or compensation? as long as it is done with qualified pilots and any aircraft maintained in accordance with the regulations. The current regulations are wrong… The Aviation community is not suicidal and reckless, we’re self regulating. You can cherry pick all day of pilots that have done reckless actions but, they’re the exception not the rule. Recklessness is not going away with more regulations. If anything the more restrictive the rules the more rule breakers.

  9. It’s impossible to cover every possible situation with these warbirds–but that doesn’t keep the FAA from trying! I particularly liked the image of “the FAA getting tangled up in their own shoelaces”–the visualization is priceless! The FAA is caught up in their own conflicting regulations.

    There should be no question about the ability of trained warbird pilots giving checkouts in dual control aircraft to rated pilots–what is the alternative–let pilots make the initial flight in a single-place aircraft? Good luck getting insurance for THAT one!

    Rides to non-pilots? Questionable. As pilots, we are aware of risk. Non-pilots may not be. Can it be solved with a waiver? Look at skydiving tandem jumps for guidance.

    Rides for “Living History” buffs? Possible–perhaps they should be a member of the sponsoring non-profit organization as a “qualifier” (as opposed to “day-tripper joy riders.”) The aforementioned “charitable organization” and 25 mile radius of the airport is a good start–after all, Private Pilots can volunteer their aircraft and time for charitable fund-raisers–why not well-trained pilots of specialty aircraft?

    • Tandem skydives no longer operate under an exemption. The FAA finally a few years ago changed the FAR’s to allow this. Waivers still in use, not likely that will ever change with our legal system! Would be interesting to see if waivers would work in the examples brought up in this article.

    • You’d think, but over the years the FAA has taken the notion of “compensation” far beyond the realm of a) money b) some other thing of general value. It has argued that “compensation” includes absolutely anything the pilot might value, even things no other body of law would consider “compensation”. It has essentially argued that there’s no good reason why a pilot would fly an aircraft and not charge the people carried, unless there was something else of value in it for the pilot. And, whatever that something is, the FAA says, it is “compensation”. So, it has ruled that “doing a favor for a friend of a friend” carries the benefits of deepening the friendship and is “compensation”. It has ruled that a pilot who flies an aircraft free of charge but logs the flight time is receiving “compensation” (the hours logged).
      So, if the instructor provides instruction without charge, the FAA will ask “what was in it for the instructor?” And if that involved even as little as “favor to a friend” or “the instructor was building flight hours toward a flying career”, the FAA can say “gotcha!” Of course, if the student was not a friend and the instructor was not building flight hours, the FAA can just keep digging: whatever the instructor’s reason was, “gotcha”.