[Federal Register Volume 86, Number 130 (Monday, July 12, 2021)]
[Rules and Regulations]
[Pages 36493-36496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14765]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 61 and 141

[Docket No.: FAA-2021-0592]


Notification of Policy for Flight Training in Certain Aircraft

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Notification of policy.

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SUMMARY: This notification provides clarification on flight training 
for compensation in certain aircraft that hold special airworthiness 
certificates including limited category,

[[Page 36494]]

experimental category, and primary category aircraft. It also provides 
guidance on how flight training for compensation can be accomplished in 
these aircraft in compliance with regulations and establishes a process 
for owners of experimental aircraft to obtain a letter of deviation 
authority to receive and provide compensation for flight training in 
their experimental aircraft.

DATES: The policy described herein is effective July 12, 2021.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this policy notification, contact Erin Cappel for information about 
Letters of Deviation Authority and Thomas (TJ) Leahy for information 
about exemption, General Aviation and Commercial Division, General 
Aviation Operations Branch, (202) 267-1100, or email 9-AFS-800-Correspondence@faa.gov, 800 Independence Ave. SW, Washington, DC 20591.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 2, 2021, the United States Court of Appeals for the 
District of Columbia Circuit dismissed a petition for review of the 
FAA's emergency cease and desist order against Warbird Adventures, Inc. 
and Thom Richard (hereinafter ``Warbirds''), ordering that they cease 
and desist from operating their limited category aircraft in violation 
of Sec.  91.315 of title 14 of the Code of Federal Regulations (14 
CFR). In this case, Warbirds maintained a publicly available website 
that advertised opportunities to fly in Warbirds' limited category 
aircraft at upcoming airshows and allowed members of the public to book 
flights in exchange for substantial amounts of money. Section 91.315 
states that no person may operate a limited category aircraft carrying 
persons or property for compensation or hire.
    Before the Court, Warbirds argued that it was conducting flight 
training for compensation in its limited category aircraft, which it 
claimed is not prohibited under Sec.  91.315.\1\ The FAA responded 
that, under the plain language of Sec.  91.315, flight training for 
compensation constitutes operating a limited category aircraft carrying 
a person for compensation or hire and, therefore, is a violation of the 
regulation. After the Court dismissed the petition for review, several 
industry groups requested that the FAA publish a statement explaining 
the impact of the decision and providing clarification regarding flight 
training in general and flight training for compensation in certain 
aircraft that hold special airworthiness certificates.\2\ The FAA is 
issuing this notification in response to the request from industry.
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    \1\ The FAA has not conceded that the flights being operated by 
Warbirds were for the purpose of flight training.
    \2\ On April 19, 2021, AOPA, EAA, and GAMA sent a joint letter 
to Ali Bahrami, then Associate Administrator for Aviation Safety. A 
copy of this letter and the response has been placed in the docket 
for this notification.
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II. FAA Regulations and Guidance

A. Pilot Requirements and Operating Requirements

    The requirements for a person exercising the privileges of a pilot 
certificate or a flight instructor certificate are generally contained 
in 14 CFR part 61. These regulations govern what is required to ``act 
as pilot in command,'' ``serve as a required flightcrew member,'' or 
``conduct flight training in an aircraft.'' The regulations in 14 CFR 
part 91 by contrast contain operating requirements that govern how the 
aircraft itself may be operated. The term ``operate'' is broadly 
defined in 14 CFR 1.1 as ``use, cause to use or authorize to use 
aircraft, for the purpose (except as provided in Sec.  91.13 of this 
chapter) of air navigation including the piloting of aircraft, with or 
without the right of legal control (as owner, lessee, or otherwise).'' 
As such, the determination of whether someone is operating an aircraft 
is not contingent on ownership, flightcrew status, or the receipt of 
payment for the use of the aircraft.
    Although a person may hold the appropriate privileges ``to act as 
pilot in command'' or ``conduct flight training'' under part 61, the 
regulations in part 91 may restrict the exercise of those privileges in 
a particular category of aircraft under certain conditions, such as 
operations conducted for compensation or hire. As defined, the term 
``operate'' has broader meaning than the general terms used in part 61 
that address ``acting as pilot in command'' or ``exercising the 
privileges'' of a particular pilot certificate. A person may be 
considered to ``operate'' an aircraft under the Sec.  1.1 definition 
without serving as a required flightcrew member or manipulating the 
controls of the aircraft.
    As noted, under Sec.  91.315, no person may operate a limited 
category aircraft carrying persons or property for compensation or 
hire. Based on the plain language of the regulation, the FAA's position 
as represented in a 2014 legal interpretation \3\ and restated in the 
Warbirds case is that a flight instructor who is operating (i.e. 
``using'') a limited category aircraft that is carrying a person (e.g. 
the person receiving instruction) for compensation (e.g. monetary 
payment) is acting contrary to the regulation.\4\
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    \3\ FAA Legal Interpretation to Gregory Morris (October 7, 
2014). The Morris Interpretation concluded, inter alia, that Sec.  
91.315 ``does not set forth any exceptions for providing flight 
training for hire in a limited category aircraft'' and that ``the 
only way to provide such training is pursuant to an exemption from 
this section of the regulations'' following the procedures of 14 CFR 
part 11.
    \4\ Given the broad definition of ``operate'' in Sec.  1.1, both 
the owner of a limited category aircraft seeking flight training and 
the flight instructor providing the training are considered to be 
operating the aircraft. The FAA notes that the term ``operate'' has 
a different meaning from the term ``operational control,'' which is 
defined in Sec.  1.1 as ``the exercise of authority over initiating, 
conducting or terminating a flight.''
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    The regulations governing other categories of aircraft 
(experimental aircraft in Sec.  91.319 and primary category aircraft in 
Sec.  91.325) include the same language as the prohibition in Sec.  
91.315. The prohibitions in Sec. Sec.  91.319 and 91.325 that mirror 
the language in Sec.  91.315 must be read to have the same meaning.\5\ 
As such, a flight instructor providing flight training in one of these 
categories of aircraft for compensation is acting contrary to the 
regulations absent a letter of deviation authority (LODA), if 
applicable, or exemption.
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    \5\ Consistent with the position for limited category aircraft, 
FAA Order 8900.1 addresses the prohibition against the operation of 
an experimental aircraft to carry persons or property for 
compensation or hire. It acknowledges that the restriction 
``prohibits the widespread use of experimental aircraft for flight 
training for compensation or hire.'' FAA Order 8900.1, Vol. 3, Chpt. 
11, sec. 1, para. 3-293.
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B. FAA Guidance on Flight Training for Compensation in Experimental 
Aircraft

    FAA Order 8900.1 contains guidance for FAA inspectors that 
indicates that flight training in an experimental aircraft for 
compensation is permissible without a LODA under certain 
circumstances.\6\ The guidance states that flight instructors may 
receive compensation for providing flight training in an experimental 
aircraft but may not receive compensation for the use of the aircraft 
in which they provide that flight training unless they obtain a LODA 
issued under Sec.  91.319(h). Likewise, the guidance states that owners 
of experimental aircraft may receive and provide compensation for 
flight training in their aircraft without a LODA, but owners may not 
receive compensation for the use of their aircraft for flight training 
except in

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accordance with a LODA issued under Sec.  91.319(h).\7\
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    \6\ FAA Order 8900.1, Vol. 3, Chpt. 11, sec. 1, para. 3-292.
    \7\ Although there is no written guidance for limited category 
and primary category aircraft, the FAA has applied the same approach 
to flight training for compensation in limited category and primary 
category aircraft.
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    The distinction set forth in FAA Order 8900.1 is inconsistent with 
the definition of ``operate'' in Sec.  1.1 and the plain language of 
Sec.  91.319. Where a regulation and guidance conflict, the regulation 
controls.\8\ Accordingly, owners of experimental aircraft and flight 
instructors who have operated experimental aircraft for the purpose of 
compensated flight training without obtaining a LODA (as allowed by FAA 
guidance) will be required to obtain a LODA to remain compliant with 
the regulations.
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    \8\ The FAA will revise the guidance in the 8900.1 to reflect 
the requirements in the regulation.
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III. Process for Compliance

    The FAA acknowledges that the disconnect between the regulations 
and the guidance to inspectors has created confusion in industry. The 
FAA also recognizes the value of specialized flight training in 
aircraft that hold special airworthiness certificates under certain 
conditions. This section provides guidance to owners of affected 
aircraft and flight instructors seeking to conduct flight training for 
compensation in these aircraft.

A. Experimental Category Aircraft

    In general, the FAA places limitations on the use of aircraft that 
hold experimental airworthiness certificates because the airworthiness 
certification requirements for these aircraft impose no standard and 
pose unique operational risk to the national airspace system. FAA 
regulations and guidance direct that, for most training, pilots should 
use a standard category aircraft to accomplish training rather than 
aircraft that hold special airworthiness certificates.
    Section 91.319(h), however, permits a person to apply for deviation 
authority to conduct flight training in an experimental aircraft. 
Currently, individuals seeking to provide flight training and receive 
compensation for both the flight training and the use of the 
experimental aircraft must submit an application package to the Flight 
Standards District Office (FSDO) in the district in which the training 
will take place. Under Sec.  91.319(h)(2), a request for deviation 
authority must contain a complete description of the proposed operation 
and justification that establishes a level of safety equivalent to that 
provided under the regulations for the deviation requested. The FAA 
generally limits LODAs to training that can only be accomplished in 
aircraft with experimental certificates and directs its inspectors 
that, with a few exceptions, LODAs should not be issued to permit 
flight training in experimental aircraft leading toward the issuance of 
a pilot certificate, rating, or operating privilege.
    As discussed, FAA guidance incorrectly indicates that no LODA is 
necessary if the owner of an experimental aircraft provides 
compensation for flight training in the owner's own aircraft and no 
compensation is provided for the use of the aircraft itself. The FAA 
will update the guidance to align with the regulation, as previously 
discussed. To mitigate disruption for this type of flight training, 
which has been allowed under FAA guidance and is viewed as an increased 
safety measure for pilots who regularly fly these aircraft, the FAA has 
developed an interim process to issue LODAs to the owners of 
experimental aircraft and flight instructors that will permit flight 
training for compensation in experimental aircraft when no compensation 
is provided for the use of the aircraft.
    The FAA finds that, for owners of experimental aircraft seeking 
flight training in the aircraft they will regularly fly in the national 
airspace, the standard under Sec.  91.319(h)(2) for granting a LODA has 
been met. The FAA has long emphasized the importance of pilots being 
trained and checked in the aircraft they will operate. Specifically, it 
is critical that pilots understand and are familiar with the particular 
systems, procedures, operating characteristics, and limitations of the 
aircraft they will operate. This flight training is distinct from a 
situation where an aircraft with a special airworthiness certificate is 
``held out'' broadly for training to individuals who pay for both the 
flight training and the use of an aircraft that they will not have 
further access to upon completion of LODA training. It is also distinct 
from flight training that can be accomplished effectively and safely in 
a standard category aircraft.
    The FAA will accept requests for a LODA electronically from an 
owner of an experimental aircraft or flight instructor who chooses to 
conduct training in experimental aircraft. LODAs, once issued, will 
define the scope of the flight training activity so that owners of 
experimental aircraft may receive and provide compensation for flight 
training in their aircraft, as well as permit flight instructors to 
receive compensation for flight training in an experimental aircraft. 
These LODAs will prohibit owners and flight instructors from receiving 
compensation for any other use of the aircraft in which the flight 
training is provided.
    To obtain a LODA, owners of experimental aircraft and flight 
instructors providing flight training in experimental aircraft may 
submit a request to the following email address: 9-AVS-AFG-LODA@faa.gov. Applicants seeking a LODA through this process must 
provide the following information:

 Name
 Address
 Email address
 Pilot Certificate Number
 Flight instructor certificate number (if applying as a 
Certificated Flight Instructor (CFI))
 Aircraft Registration Number (if applying as an owner)
 Aircraft make/model in which you will receive or provide 
instruction
 Aircraft home base airport (if applying as an owner)

The FAA will review the information submitted and issue a LODA (via 
email) that reflects the conditions and limitations contained in this 
notification, as well any additional limitations required in accordance 
with Sec.  91.319(h) and (i).
    Individuals seeking to provide flight training and receive 
compensation for both the flight training and the use of the aircraft 
must continue to apply for LODAs through their local FSDOs.

B. Limited Category and Primary Category Aircraft

    Section 91.315 does not permit an individual to obtain deviation 
authority to conduct flight training for compensation or hire in a 
limited category aircraft. Therefore, as explained in the 2014 legal 
interpretation, the only way to provide flight training for 
compensation in a limited category aircraft is pursuant to an exemption 
from the regulation. Because there is no deviation authority in Sec.  
91.325 for primary category aircraft, the owners of these aircraft and 
flight instructors seeking to conduct flight training for compensation 
must likewise obtain an exemption from the regulation.
    As with the process for issuing LODAs to owners and flight 
instructors, the FAA will consider adopting a fast-track exemption 
process for owners of limited category and primary category aircraft 
seeking to conduct flight training for compensation in these aircraft. 
As with experimental category aircraft, the FAA will consider granting 
relief for flight training operations when

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compensation is provided solely for the flight training and not the use 
of the aircraft.
    The FAA notes that any operator of a limited category aircraft that 
holds an exemption to conduct Living History of Flight (LHFE) 
operations already holds the necessary exemption relief to conduct 
flight training for its flightcrew members. LHFE exemptions grant 
relief to the extent necessary to allow the exemption holder to operate 
certain aircraft for the purpose of carrying persons for compensation 
or hire for living history flight experiences. As a condition of these 
exemptions, the operators must provide regular flight training and 
checking to flightcrew members. As such, these flight training 
operations are considered necessary for the operator to conduct the 
LHFE flights themselves.\9\ The FAA will clarify this relief when 
operators apply for renewal of their LHFE exemptions.
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    \9\ The FAA cautions, however, that LHFE exemptions do not 
permit operators to allow passengers on LHFE flights to manipulate 
the controls of the aircraft under the guise of flight training. The 
flight training relief extends only to the LHFE operator's own 
flightcrew members for the purpose of training those individuals to 
conduct LHFE flights.
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    For the safety reasons set forth in this notification, the FAA is 
considering a rulemaking that would enable the flight training activity 
discussed in this notification without the need to obtain an exemption 
or LODA from the FAA.

    Issued in Washington, DC.
Ricardo Domingo,
Executive Director, Flight Standards Service, AFX-1.
[FR Doc. 2021-14765 Filed 7-8-21; 8:45 am]
BILLING CODE 4910-13-P


