[Federal Register Volume 88, Number 120 (Friday, June 23, 2023)]
[Proposed Rules]
[Pages 41194-41222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12600]



[[Page 41193]]

Vol. 88

Friday,

No. 120

June 23, 2023

Part II





Department of Transportation





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 Federal Aviation Administration





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14 CFR Parts 61 and 91





Public Aircraft Logging of Flight Time, Training in Certain Aircraft 
Holding Special Airworthiness Certificates, and Flight Instructor 
Privileges; Proposed Rule

  Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 61 and 91

[Docket No. FAA-1351; Notice No. 23-09]
RIN 2120-AL61


Public Aircraft Logging of Flight Time, Training in Certain 
Aircraft Holding Special Airworthiness Certificates, and Flight 
Instructor Privileges

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: As directed by the FAA Reauthorization Act of 2018, the FAA 
proposes to allow pilots conducting public aircraft operations (PAO) to 
credit their flight time towards FAA civil regulatory requirements. 
Additionally, consistent with the James M. Inhofe National Defense 
Authorization Act for 2023 (2023 NDAA), the FAA proposes to amend the 
operating rules for experimental aircraft to permit certain flight 
training, testing, and checking in these aircraft without a letter of 
deviation authority (LODA). The FAA proposes to extend the same relief 
to certain flight training, testing, and checking in limited category, 
primary category, and experimental light sport aircraft. The FAA also 
proposes miscellaneous amendments related to recent flight experience, 
flight instructor privileges, flight training in certain aircraft 
holding special airworthiness certificates, and the related 
prohibitions on conducting these activities for compensation or hire. 
These proposed changes will clarify existing regulatory requirements, 
align the regulations with current industry practice, and ensure 
compliance with the FAA Reauthorization Act of 2018 and the 2023 NDAA.

DATES: Send comments on or before August 22, 2023.

ADDRESSES: Send comments identified by docket number FAA-2023-1351 
using any of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov and 
follow the online instructions for sending your comments 
electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at (202) 493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at 
www.regulations.gov at any time. Follow the online instructions for 
accessing the docket or go to the Docket Operations in Room W12-140 of 
the West Building Ground Floor at 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Jabari Raphael, General Aviation and 
Commercial Division, Flight Standards Service, Federal Aviation 
Administration, 800 Independence Avenue SW, Washington, DC 20591; (202) 
267-1088; email [email protected].

SUPPLEMENTARY INFORMATION: 

List of Abbreviations and Acronyms Frequently Used in This Document

ATC Air Traffic Control
ELSA Experimental Light-Sport Aircraft
ICAO International Civil Aviation Organization
IFR Instrument Flight Rules
LODA Letter of Deviation Authority
NAS National Airspace System
NPRM Notice of Proposed Rulemaking
NTSB National Transportation Safety Board
PAO Public Aircraft Operation
PIC Pilot-in-command
SIC Second-in-command
SLSA Special Light-Sport Aircraft
VFR Visual Flight Rules

Table of Contents

I. Executive Summary
II. Authority for the Rulemaking
III. Logging Flight Time, Recent Flight Experience, and Flight 
Instructor Privileges
    A. Logging Flight Time in Public Aircraft Operations (Sec.  
61.51)
    B. Recent Flight Experience (Sec.  61.57)
    C. Flight Instructor Privileges (Sec. Sec.  61.193 and 61.413)
IV. Aircraft Holding Certain Special Airworthiness Certificates
    A. Background: Emergency Cease and Desist Order, Litigation, and 
FAA Notice
    B. Part 91 Regulations Governing the Operation of Aircraft With 
Certain Airworthiness Certificates (Sec. Sec.  91.315, 91.319, 
91.325, and 91.327)
    C. Flight Training, Checking, and Testing (Sec.  91.326(a))
    D. LODA Framework (Sec.  91.326(b) and (c))
V. Regulatory Notices and Analyses
    A. Regulatory Evaluation
    B. Regulatory Flexibility Determination
    C. International Trade Impact Assessment
    D. Unfunded Mandates Assessment
    E. Paperwork Reduction Act
    F. International Compatibility
    G. Environmental Analysis
VI. Executive Order Determinations
    A. Executive Order 13132, Federalism
    B. Executive Order 13211, Regulations That Significantly Affect 
Energy Supply, Distribution, or Use
    C. Executive Order 13609, International Cooperation
VII. Additional Information
    A. Comments Invited
    B. Confidential Business Information
    C. Electronic Access and Filing

I. Executive Summary

    As directed by section 517 of the FAA Reauthorization Act of 2018 
(Pub. L. 115-254), the FAA proposes to allow pilots conducting public 
aircraft operations (PAO) under Title 49 of the United States Code 
(U.S.C.) 40102(a)(41) and 40125 to credit their flight time towards FAA 
civil regulatory requirements. While section 517 requires the FAA to 
issue regulations to allow the logging of flight time in aircraft used 
in PAO under direct operational control of forestry and fire protection 
agencies, the FAA proposes to more broadly consider all PAO for flight 
time. Moreover, the FAA proposes to expand the regulatory framework to 
allow pilots serving in PAO as second in command to log flight time, 
under certain circumstances. Enabling pilots to log SIC time while 
operating a PAO encourages the use of a second pilot where one may not 
be required and increases overall safety in the NAS.
    The FAA also proposes to clarify recent flight experience 
requirements and the authorized flight training activities under part 
61. The FAA proposes to add Sec.  61.57(e)(5) to codify an exception 
that, in certain circumstances, would enable a person receiving flight 
training to act as PIC, even if that person does not meet the recent 
flight experience requirements for carrying passengers under Sec.  
61.57(a) or (b). Additionally, the FAA proposes to add ``maintaining or 
improving skills for certificated pilots'' to the list of flight 
instructor privileges found in Sec. Sec.  61.193(a)(7) and 61.413(a)(6) 
to clarify that flight instructors are authorized to conduct certain 
specialized and elective training.
    The proposed rule would also amend part 91 operating rules to 
clarify

[[Page 41195]]

prohibited operations and create limited exceptions to the general 
prohibition on carriage of persons for compensation or hire for flight 
training, testing, and checking in aircraft holding certain special 
airworthiness certificates. Currently, part 91 regulations broadly 
prohibit a person from operating certain aircraft with special 
airworthiness certificates (i.e., limited category, experimental, or 
primary category aircraft) \1\ carrying persons and property for 
compensation or hire. These part 91 regulations use broad terms that 
the FAA has defined either in regulation (i.e., operate, person) or 
through interpretation and guidance (i.e., compensation). The broad 
language in these regulations was the subject of recent litigation \2\ 
that identified a discrepancy between the plain language of the 
regulation and the FAA's longstanding application of the regulation to 
certain flight training activity. Therefore, the FAA initiated this 
rulemaking to remove the requirement for owners (and certain persons 
affiliated with owners) to obtain a LODA to accomplish flight training 
in their aircraft and to clarify the general prohibition on operating 
aircraft with certain special airworthiness certificates while carrying 
persons or property for compensation or hire.
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    \1\ Section 21.175(b) identifies special airworthiness 
certificates as primary, restricted, limited, light-sport, and 
provisional airworthiness certificates, special flight permits, and 
experimental certificates.
    \2\ Warbird Adventures, Inc. v. Fed. Aviation Admin., Petition 
for Review from an Emergency Cease and Desist Order Issued by the 
Federal Aviation Administration on July 28, 2020, Doc. No. 1854466 
(D.C. Cir. 2020).
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    During the development of this NPRM, President Joseph R. Biden, Jr. 
signed into law the James M. Inhofe National Defense Authorization Act 
for 2023 (2023 NDAA), which included a self-implementing provision that 
amended the operating rules to permit certain flight training, testing, 
and checking in experimental aircraft without a letter of deviation 
authority (LODA). The FAA proposes to extend the same relief to certain 
flight training, testing, and checking in limited category, primary 
category, and experimental light sport aircraft. The FAA anticipates 
that the proposed changes will provide greater access to specialized 
training in aircraft with special airworthiness certificates.
    The FAA analyzed the costs and benefits for the provisions related 
to PAO and the provisions related to training, testing, and checking in 
certain aircraft with special airworthiness certificates separately. 
The provisions related to PAO impose no new costs and the FAA expects 
the proposal will reduce the costs for pilots conducting PAO to 
maintain their civil certificates and ratings.\3\ The provisions 
related to training, testing and checking impose approximately $100,000 
in total one-time costs (undiscounted) over a period of two years. 
These costs stem from the requirement for current LODA holders who 
broadly offer certain aircraft with special airworthiness certificates 
for training to reapply within two years of the effective date. 
However, the FAA expects the cost savings from the elimination of LODA 
requirements for pilots receiving training in their own aircraft, the 
streamlined regulatory framework, and the safety benefits from greater 
access to specialized training in aircraft with special airworthiness 
certificates to exceed the initial costs. Overall, the FAA concluded 
that this proposal would enhance safety with minimal impact on cost.
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    \3\ The FAA does not maintain counts of pilots who fly PAO for 
federal, state, and local governments and there is insufficient data 
for the FAA to estimate the number of pilots affected by this 
proposal. See ``How to Become a Government Pilot'' in Flying 
Magazine by James Wynbrandt, Dec. 13, 2017. Available at: https://www.flyingmag.com/how-to-become-government-pilot/ Last accessed Jul. 
22, 2022.
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II. Authority for the Rulemaking

    The FAA's authority to issue rules on aviation safety is specified 
in Title 49 of the United States Code. Subtitle I, Section 106 
prescribes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes the scope of the FAA's authority in more 
detail.
    The FAA is proposing this rulemaking under the authority described 
in Subtitle VII, Part A, Subpart iii, section 44701, General 
Requirements; section 44702, Issuance of Certificates; and section 
44703, Airman Certificates. Under these sections, the FAA prescribes 
regulations and minimum standards for practices, methods, and 
procedures the Administrator finds necessary for safety in air 
commerce. The FAA is also authorized to issue certificates, including 
airman certificates, and medical certificates, to qualified 
individuals. This rulemaking proposal is within the scope of that 
authority.
    Furthermore, section 517 of Public Law 115-254, Public Aircraft 
Eligible for Logging Flight Times, directs the Administrator to revise 
14 CFR 61.51(j)(4) to include aircraft under direct operational control 
of forestry and fire protection agencies as public aircraft eligible 
for logging flight times. The FAA also proposes to codify section 5604 
of the 2023 NDAA, which directs that under certain conditions, flight 
training, testing, and checking in experimental aircraft does not 
require a LODA from the FAA.

III. Logging Flight Time, Recent Flight Experience, and Flight 
Instructor Privileges

    In 14 CFR part 61, the FAA proposes to modify Sec. Sec.  61.51, 
61.57, 61.193, and 61.413. First, the FAA proposes to modify Sec.  
61.51 to expand PAO under which a pilot may credit flight time towards 
FAA civil regulatory requirements. Second, the FAA proposes to modify 
Sec.  61.57(e) to include an exception to the recent flight experience 
requirements for flight instructors and certificated pilots while 
conducting flight training for the purpose of meeting recent flight 
experience requirements. Third, the FAA proposes to modify Sec. Sec.  
61.193 and 61.413 to clarify the privileges an authorized flight 
instructor may exercise within the limits of their certificate.

A. Logging Flight Time in Public Aircraft Operations (Sec.  61.51)

1. Aircraft Requirements for Logging Flight Time
    As specified in 14 CFR part 61, pilots must document and record 
certain aeronautical experience.\4\ Section 61.51 provides the 
requirements for logging aeronautical experience for airman 
certificates, ratings, privileges, and flight experience. In 
particular, Sec.  61.51(j) specifies the aircraft requirements for 
logging flight time. Section 61.51(j) states that, for time to be 
logged, it must be acquired in an aircraft that is identified as an 
aircraft under Sec.  61.5(b) \5\ and is (1) an aircraft of U.S. 
registry with either a standard or special airworthiness certificate, 
(2) an aircraft of foreign registry with an airworthiness certificate 
that is approved by the aviation authority of a foreign country that is 
a Member State to the Convention on International Civil Aviation 
Organization (ICAO), (3) a military aircraft under the direct 
operational control of the U.S. Armed Forces, or (4) an aircraft 
engaged in a public aircraft operation (PAO) while engaged on an 
official law enforcement

[[Page 41196]]

flight for a Federal, State, county, or municipal law enforcement 
agency.
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    \4\ Section 61.51(a) specifies that certain training time and 
aeronautical experience must be documented and recorded in a ``form 
and manner acceptable to the Administrator.'' Often, this is 
accomplished through maintaining a logbook.
    \5\ Section 61.5(b) lists the aircraft ratings that are placed 
on pilot certificates issued under part 61. The ratings include 
category ratings (e.g., airplane, rotorcraft) and class ratings 
(e.g., multiengine land, helicopter).
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    The FAA added Sec.  61.51(j) in 2009, after Congress passed Public 
Law 106-424.\6\ Section 14 of Public Law 106-424 specified that an 
aircraft must hold an airworthiness certificate, with some exceptions, 
for a pilot to log flight time to meet the certificate, rating, or 
recent flight experience requirements under part 61.\7\ Before 
promulgation of Sec.  61.51(j), the FAA did not expressly prescribe in 
regulation aircraft or airworthiness requirements for when a pilot may 
log flight time.\8\ In earlier versions of the regulation, the type of 
aircraft that could be flown to log flight time was not specified. 
Rather, FAA guidance to inspectors stated that, ``[u]nless the vehicle 
is [type certificated] as an aircraft in a category listed in Sec.  
61.5(b)(1) or as an experimental aircraft, or otherwise holds an 
Airworthiness Certificate, flight time acquired in such a vehicle may 
not be used to meet requirements of part 61 for a certificate or rating 
or to meet the recency-of-experience requirements.'' \9\
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    \6\ Public Law 106-424, section 14, Crediting of Law Enforcement 
Flight Time (Nov. 1, 2000). In determining whether an individual 
meets the aeronautical experience requirements imposed under section 
44703 of Title 49, United States Code, for an airman certificate or 
rating, the Secretary of Transportation shall take into account any 
time spent by that individual operating a public aircraft as defined 
in section 40102 of Title 49, United States Code, if that aircraft 
is--(1) identifiable by category and class; and (2) used in law 
enforcement activities.
    \7\ Pilot, Flight Instructor, and Pilot School Certification, 74 
FR 42499 (Aug. 21, 2009).
    \8\ Pilot, Flight Instructor, and Pilot School Certification, 74 
FR 42499, 42515 (Aug. 21, 2009).
    \9\ FAA Order 8900.1, Volume 5, Chapter 2, Section 5, Paragraph 
5-316B.
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    Given the specific mandate from Congress, in Sec.  61.51(j), the 
FAA codified its existing guidance, added a provision for logging time 
in military aircraft, and as directed by the legislation, included 
Sec.  61.51(j)(4) to permit individuals to log flight time in aircraft 
used in PAO for official law enforcement activities.
    The current language of Sec.  61.51(j)(4) applies only to law 
enforcement pilots and does not permit other pilots who conduct PAO to 
credit flight time toward FAA requirements if the aircraft does not 
also meet another provision under Sec.  61.51(j). Section 517 of the 
FAA Reauthorization Act of 2018, Public Law 115-254 (section 517) 
directs the FAA to expand PAO logging opportunities by permitting 
pilots to log flight time in aircraft under the direct operational 
control of forestry and fire protection agencies when conducted as PAO. 
Notwithstanding the limited scope of section 517, the FAA is proposing 
to amend Sec.  61.51(j)(4) to allow logging of flight time for pilots 
engaged in any PAO in accordance with 49 U.S.C. 40102(a)(41) and 
40125(a)(2). This proposal would expand Sec.  61.51(j)(4) not only to 
law enforcement and forestry and fire protection services as directed 
by Congress, but to any PAO including, but not limited to, those 
involving national defense, intelligence missions, search and rescue, 
aeronautical research, and biological or geological resource 
management.
    This proposal would also broaden the scope of aircraft requirements 
in Sec.  61.51(j) for logging flight time. The FAA recognizes that the 
2009 rule change, which codified these requirements in response to 
section 14, prohibited individuals conducting PAO, with the exception 
of law enforcement personnel, from logging flight time unless the 
aircraft could meet another provision under Sec.  61.51(j). The FAA now 
proposes to eliminate this distinction between law enforcement 
personnel and all other individuals engaged in PAO by allowing logging 
of flight time for PAO conducted in aircraft other than those listed in 
Sec.  61.51(j)(1) through (3).
    The FAA finds that amending the regulatory language to include all 
aircraft engaged in PAO would not adversely affect safety. PAO already 
occur within the national airspace system (NAS), and the FAA is now 
proposing to allow pilots to credit these operations towards certain 
civil regulatory requirements under part 61 like total flight time and 
recent flight experience.
    Flight experience gained during PAO is relevant to a pilot's 
qualifications and currency under FAA regulations. Whether a pilot is 
engaged in civil or public aircraft operations, the pilot must follow 
flight rules in part 91. The pilots engaged in PAO interact with air 
traffic control (ATC) and aircraft in the NAS the same as those engaged 
in civil aircraft operations. In addition, pilots conducting PAO abide 
by the same rules governing airspace classifications, right-of-way, 
aircraft speed, and airspace restrictions. Pilots conducting PAO also 
must act consistently with FAA weather minima, minimum altitude 
requirements, instrument approach procedures, and other operating rules 
applicable to certain persons and aircraft. Pilots conducting PAO also 
employ many of the same aeronautical skills and accomplish the same 
flight time as their counterparts performing civil operations, 
including takeoffs and landings, visual and instrument procedures, risk 
management, and enroute operations.
    The FAA understands that pilots engaged in PAO may have been 
memorializing their flight time in accordance with the requirements of 
the government entities under which they operate, even though the FAA 
does not currently recognize this time under Sec.  61.51 to satisfy 
civil regulatory requirements. Those pilots who have not documented 
this time may begin recording their PAO flight time in accordance with 
this proposed rule in the event that this proposed rule becomes final. 
In this regard, the proposed modification would permit PAO pilots to 
credit their recorded flight time towards satisfying FAA requirements 
retroactively. Any prior PAO aeronautical experience logged by a pilot 
must meet the requirements in Sec.  61.51.
    Although a pilot's total time may be used to meet certain flight 
time requirements for certificates, ratings, or recent flight 
experience, like that required for Sec.  61.57, the FAA notes that 
flight time in PAO may not satisfy all part 61 requirements, such as a 
flight review, a pilot-in-command (PIC) proficiency check, or practical 
test. However, the recorded time may not be creditable toward any pilot 
qualification or requirement if the rule does not become final.
    Finally, the FAA notes that, a pilot logging flight time is 
responsible for knowing whether they are engaging in operations that 
are PAO or civil operations.
2. Second-in-Command Flight Time in Aircraft Engaged in Public Aircraft 
Operations
    The current second-in-command (SIC) logging regulations do not 
adequately address aircraft used in PAO that do not also hold 
airworthiness certificates issued by the FAA. For example, the SIC 
logging requirements in Sec.  61.51(f) permit a person to log time as 
SIC based on the number of pilots required by the type certification of 
the aircraft or the regulations under which the flight is conducted. In 
addition, since 2018, part 135 SICs who are not required by the type 
certification of the aircraft or the part 135 operating rules also may 
log SIC flight time under Sec.  61.51(f)(3) as part of an approved SIC 
professional development program (SIC PDP) consistent with the 
requirements in Sec.  135.99(c).\10\ For aircraft exclusively used in 
PAO that do not hold airworthiness certificates, there may be no type 
certificate designating that two pilots are required. In addition, PAO 
are not subject to FAA regulations on SIC

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requirements (e.g., Sec.  91.531). As such, under Sec.  61.51(f), an 
assigned second pilot in a PAO does not meet the requirements to log 
SIC time.
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    \10\ 83 FR 30232 (Jun. 27, 2018).
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    While section 517 is silent as to how pilot time may be logged, 
whether as PIC or SIC, the FAA now proposes to clarify the pilot time 
that may be logged to meet FAA requirements in response to questions 
from the regulated community. Pilots conducting qualified PAO are not 
required to meet FAA pilot certification requirements. Instead, the 
government entity may develop its own pilot qualification requirements 
for these operations. Therefore, the FAA proposes to explicitly allow 
the logging of SIC time during PAO, with certain limitations, to 
encourage safety and promote consistency with the regulated community.
    To determine the appropriate scope of the proposal regarding SIC 
logging during PAO, the FAA considered the requirements set forth in 
Sec.  91.531 and 14 CFR part 135. For operations under part 91, Sec.  
61.51(f) allows a pilot to log SIC time in those airplanes when 
operating in accordance with Sec.  91.531(a). Section 91.531 specifies 
requirements to operate with an SIC in certain airplanes, such as those 
type certificated for more than one required pilot, large airplanes, 
and commuter category airplanes. Likewise, for a part 135 pilot to log 
SIC time under Sec.  61.51(f), a second pilot must either be required 
by the aircraft type certificate, operating rule, or as prescribed in 
Sec.  135.99.\11\ These operating rules under which a pilot may log SIC 
time are established based on complexity of the operation. Examples of 
aircraft that may require additional flightcrew members include large 
aircraft or turbojet-powered airplanes, or complex operations such as 
part 135 passenger carriage under instrument flight rules. Often, large 
aircraft \12\ and turbojet-powered airplanes have a requirement for a 
second pilot listed in the limitations section of the flight manual or 
on the type certificate data sheet, if applicable. Section 91.9 
requires that a person must operate a civil aircraft in accordance with 
the aircraft flight manual.
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    \11\ Section 135.99(a) provides that no certificate holder may 
operate an aircraft with less than the minimum flight crew specified 
in the aircraft operating limitations or the Aircraft Flight Manual 
for that aircraft. Paragraph (b) states that no certificate holder 
may operate an aircraft without a second in command if that aircraft 
has a passenger seating configuration, excluding any pilot seat, of 
ten seats or more. Paragraph (c) establishes the SIC PDP, which 
permits a pilot employed by the certificate holder to log SIC flight 
time under certain conditions for operations conducted under parts 
91 and 135.
    \12\ See 14 CFR 1.1 defining ``large aircraft'' as ``aircraft of 
more than 12,500 pounds, maximum certificated takeoff weight.''
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    Since aircraft used in PAO might not hold an airworthiness 
certificate, there may be no associated aircraft flight manual or type 
certificate. Additionally, the FAA regulations governing crew 
complement discussed earlier do not apply to PAO. Finally, because a 
PAO is not a part 135 operation, the part 135 operating rules (i.e., 
Sec.  135.99(c)) that allow for logging SIC time are unavailable to PAO 
pilots.
    As previously discussed, certain aircraft used in civil operations 
require a second pilot for safety due to design complexity or 
operational requirement. Enabling pilots to log SIC time while 
operating a PAO encourages the use of a second pilot where one may not 
be required and increases overall safety in the NAS. In addition, the 
presence of a second pilot onboard the aircraft provides additional 
resources to reduce PIC workload during critical phases of flight, 
monitor for emergency circumstances, survey weather conditions, and 
ensure safe operations. Thus, the FAA seeks to encourage the presence 
of a second pilot in aircraft that would otherwise require a second 
pilot under civil operations.
    Consistent with the foregoing discussion, the FAA proposes to 
enable logging of SIC time to meet FAA requirements in large aircraft 
and turbojet powered airplanes. Likewise, the FAA proposes that, if an 
aircraft holds or held a type certificate that requires a second pilot, 
PAO pilots may also log SIC time. This proposal is similar to the 
regulatory framework under which pilots serving in civil operations may 
log flight time \13\ and, therefore, would allow PAO pilots to credit 
their flight time towards FAA requirements in a similar manner to 
pilots conducting civil operations. The proposal would permit PAO 
pilots to credit their recorded flight time towards satisfying FAA 
requirements retroactively.
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    \13\ See 14 CFR 91.531, 135.99(a).
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    Additionally, although PAO are conducted outside of FAA aircraft 
and airmen certification requirements and certain safety oversight 
regulations, each government entity is responsible for its own pilot 
qualifications. For many government entities, this includes adopting 
the same standards as those codified in 14 CFR to ensure pilot and 
public safety. Logging flight time in PAO also provides a record of the 
pilot's experience. By allowing pilots to credit their time conducting 
PAO, the proposed rule would enable the FAA to review the totality of 
an individual pilot's flight experience to satisfy civil requirements. 
Likewise, enabling this time to be credited toward civil requirements 
will create efficiency for affected pilots by removing the need for 
duplicative flight time to be accomplished. In turn, the FAA could more 
effectively ensure and oversee safety in the NAS. Accordingly, the FAA 
proposes to add Sec.  61.51(f)(4) to clarify that a person designated 
as SIC by a government entity may log SIC time if the aircraft used was 
a large aircraft as defined in Sec.  1.1, a turbo-jet powered airplane, 
or if the aircraft holds or originally held a type certificate that 
requires a second pilot.
    The FAA reviewed the minimum aeronautical experience requirements 
for certification and ratings and found that the proposed SIC logging 
time should be limited to pilots seeking an airplane transport pilot 
(ATP) certificate. The FAA continues to find that ATP hours are largely 
related to building time and experience whereas flight time necessary 
to meet minimum aeronautical experience requirements for private pilot, 
commercial, and instrument rating is more directly related to building 
specific skillsets. Moreover, the required training and aeronautical 
experience pilots accumulate in order to obtain these certifications 
and ratings are fundamental building blocks necessary for the 
development of proper aeronautical decision-making and skills.
    In this regard, the FAA does not believe that pilots utilizing 
proposed Sec.  61.51(f)(4) for building time towards meeting the 
aeronautical experience requirements for a private pilot certificate, 
commercial certificate, and instrument rating would be in the interest 
of safety. This distinction is supported by the fact that the 
aeronautical experience requirements for the ATP certificate explicitly 
enable crediting of SIC time, whereas the aeronautical experience 
requirements for the private and commercial certificates and instrument 
rating do not explicitly reference SIC flight time. Therefore, the FAA 
proposes adding Sec.  61.51(f)(4)(i) to explicitly state that SIC time 
logged under paragraph (f)(4) may not be used to meet the aeronautical 
experience requirements for the private or commercial pilot 
certificates or an instrument rating.
    The FAA notes that ICAO standards do not recognize the crediting of 
flight time when a pilot is not required by the aircraft certification 
or the operating rules under which the flight is being conducted. 
Accordingly, all pilots who log flight time under this provision and 
apply for an ATP certificate would have

[[Page 41198]]

a limitation on the certificate indicating that the pilot does not meet 
the PIC aeronautical experience requirements of ICAO. For this reason, 
the FAA proposes to add Sec.  61.51(f)(4)(ii) to clearly delineate that 
an applicant for an ATP certificate who logs SIC time under Sec.  
61.51(f)(4) is issued an ATP certificate with the limitation, ``Holder 
does not meet the pilot in command aeronautical experience requirements 
of ICAO,'' as prescribed under Article 39 of the Convention on 
International Civil Aviation if the applicant does not meet the ICAO 
requirements contained in Annex 1 ``Personnel Licensing'' to the 
Convention on International Civil Aviation. The FAA notes that an 
applicant is entitled to an ATP certificate without the ICAO limitation 
specified under this provision when the applicant presents satisfactory 
evidence of having met the ICAO requirements and otherwise meets the 
aeronautical experience requirements of Sec.  61.159.\14\
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    \14\ Section 61.159 specifies the aeronautical experience 
requirement for obtaining an ATP certificate with an airplane 
category and class rating.
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    Additionally, to streamline the proposed revisions to Sec.  
61.51(f) with other pilots who apply for an ATP certificate with an 
ICAO limitation, the FAA proposes to amend Sec. Sec.  61.159(e) \15\ 
and 61.161(d) \16\ to reference Sec.  61.51(f)(4). This proposed 
revision to the aeronautical experience requirements of Sec. Sec.  
61.159 and 61.161 would allow a pilot to credit SIC time logged under 
PAO toward the total time for an ATP certificate.
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    \15\ Section 61.159(e) specifics the activities that 
necessitates the limitation ``Holder does not meet the pilot in 
command aeronautical experience requirements of ICAO'' on an ATP 
certificate with an airplane category and class rating.
    \16\ Section 61.161(d) specifics the activities that 
necessitates the limitation ``Holder does not meet the pilot in 
command aeronautical experience requirements of ICAO'' on an ATP 
certificate with a rotorcraft category and helicopter class rating.
---------------------------------------------------------------------------

B. Recent Flight Experience (Sec.  61.57)

    Section 61.57 contains recent flight experience requirements to 
maintain privileges to act as PIC under certain scenarios, including 
requirements to complete takeoffs and landings in order continue to act 
as PIC of a flight that is carrying passengers.\17\ The FAA proposes to 
add Sec.  61.57(e)(5) to codify an exception that, in certain 
circumstances, would enable a person receiving flight training to act 
as PIC, even if that person does not meet the recent flight experience 
requirements for carrying passengers under Sec.  61.57(a) or (b). 
Specifically, the FAA proposes that an otherwise qualified pilot could 
act as PIC while receiving flight training given by an authorized 
flight instructor only for the purpose of meeting recent flight 
experience requirements, even if that person does not meet the 
requirements of Sec.  61.57(a) or (b). This person must meet all other 
requirements to act as PIC, except for the recent flight experience 
requirements of Sec.  61.57(a) or (b), and the authorized instructor 
and person receiving training must be the sole occupants of the 
aircraft.
---------------------------------------------------------------------------

    \17\ Section 61.57(a)(1) states that no person may act as PIC of 
an aircraft carrying passengers or of an aircraft certificated for 
more than one pilot flightcrew member unless that person has made at 
least three takeoffs and three landings within the preceding 90 
days. Moreover, Sec.  61.57(b)(1) specifies that no person may act 
as PIC of an aircraft carrying passengers during the period 
beginning one hour after sunset and ending one hour before sunrise, 
unless within the preceding 90 days, that person has made at least 
three takeoffs and three landings to a full stop during the period 
beginning one hour after sunset and ending one hour before sunrise.
---------------------------------------------------------------------------

    The FAA has published numerous legal interpretations indicating the 
aforementioned operations are already permissible under existing 
regulations, notwithstanding the prohibition on passenger-carrying 
flights; however, upon reconsideration, the FAA has determined the 
plain text of the regulations does not support the conclusions in these 
interpretations. For example, in the FAA Legal Interpretation to Kris 
Kortokrax, Mr. Kortokrax suggested that a flight instructor who has not 
met the recent night takeoff and landing experience in Sec.  61.57(b) 
should be able to accompany a pilot without being considered a 
passenger.\18\ At that time, the FAA agreed and stated this training 
may take place even though neither pilot has met the Sec.  61.57(b) 
requirement. Similarly, in the FAA Legal Interpretation to Roger 
Schaffner, Mr. Schaffner asked whether a flight instructor with an 
expired medical could provide flight training to a certificated pilot, 
even though the person receiving instruction did not comply with the 
recent flight experience requirement of Sec.  61.57.\19\ The FAA 
asserted that the person receiving the instruction could act as the PIC 
if that person met all other requirements to act as PIC, other than the 
recent flight experience requirements of Sec.  61.57(a) or (b).
---------------------------------------------------------------------------

    \18\ The FAA addressed Mr. Kortokrax's concerns regarding night 
takeoff and landing experience for a PIC. The scenario included a 
pilot, who meets the rating and currency requirements except for 
Sec.  61.57(b), seeking to have an authorized instructor in the 
aircraft when the pilot attempts to meet the requirements of Sec.  
61.57(b). Legal Interpretation to Kris Kortokrax (Aug. 22, 2006).
    \19\ Legal Interpretation to Roger Schaffner (May 5, 2014).
---------------------------------------------------------------------------

    The FAA legal interpretations were based on the unsupported 
conclusion that a flight instructor and a person receiving flight 
training are not considered passengers to one another. In the FAA Legal 
Interpretation to Kris Kortokrax, the FAA stated that an authorized 
instructor providing flight training in an aircraft is not considered a 
passenger with respect to the person receiving training, even where the 
person receiving the flight training is acting as PIC. This conclusion 
was based on the premise that the instructor is not a passenger because 
the instructor is present specifically to train the person receiving 
flight training, and the person receiving flight training is similarly 
not a passenger with respect to the instructor. Likewise, the FAA Legal 
Interpretation to Roger Schaffner stated that a flight instructor with 
an expired medical certificate may instruct a person who is a private 
pilot with a current medical certificate and flight review, even if 
that person is not current to carry passengers per Sec.  61.57(a) 
because the instructor is not considered a passenger when the 
instructor is present specifically to train the person receiving 
instruction.\20\ Although the FAA makes the regulatory distinction in 
Sec.  61.47(c) that during a practical test, the applicant and the (14 
CFR part 183) examiner are not subject to the requirements or 
limitations for the carriage of passengers, the rule does not assert 
that the persons are not passengers to one another. Instead, it 
specifies that those persons are not subject to the limitations related 
to carriage of passengers. No such regulatory provision exists to make 
the same assertion regarding flight instructors and persons receiving 
flight training. Therefore, the aforementioned legal interpretations 
had no regulatory basis to assert that flight instructors and flight 
students were not considered passengers to one another. This proposed 
rule seeks to remedy the disparity between the aforementioned legal 
interpretations and current regulations by creating an exception to 
Sec.  61.57(a) and (b) to enable the activities enumerated in the legal 
interpretations. Importantly, the proposed rule will not change the 
relationship between instructors and persons receiving flight training. 
The proposed rule does not assert that these persons are not passengers 
to one another. Instead, the proposal clarifies when these operations 
can be accomplished. Specifically, the FAA is proposing to codify the 
privileges described in the Kortokrax and Schaffner interpretations. 
Under the proposed rule, and consistent with the aforementioned legal 
interpretations,

[[Page 41199]]

the FAA contemplates a scenario whereby neither the flight instructor 
nor the person receiving instruction has met the recent flight 
experience requirements of Sec.  61.57(a) or (b). In this scenario, the 
person receiving instruction, if otherwise qualified, \21\ would be 
permitted to act as the PIC and would not be subject to the 
requirements of Sec.  61.57(a) or (b) to act as PIC.
---------------------------------------------------------------------------

    \20\ Legal Interpretation to Roger Schaffner (May 5, 2014).
    \21\ A flight instructor may not be able to act as PIC for other 
reasons including a lack of medical qualification. Under Sec. Sec.  
61.3(c)(2)(viii) and 61.23(b)(5), a flight instructor does not need 
to hold a medical certificate while exercising the privileges of 
flight instructor certificate if the flight instructor is not acting 
as a required flightcrew member. To act as PIC or as a required 
flight crewmember, under Sec.  61.23(a)(3)(ii) and 61.23(c)(1)(vi), 
when exercising the privileges of a flight instructor certificate, a 
flight instructor must possess at least a third-class medical 
certificate, or a U.S. driver's license if the flight is conducted 
under the conditions and limitations set forth in Sec.  61.113(i).
---------------------------------------------------------------------------

    To ensure safety, the FAA proposes to limit the types of operations 
and persons who may be on board. The proposed exception is limited to 
flight training to meet the recent flight experience requirement of 
Sec.  61.57 (a) or (b), and no other persons may be on board the 
aircraft. Additional aircraft occupants could cause distractions, would 
not necessarily possess the knowledge and skills to operate the 
aircraft, and would not be in a position to act in the event of a 
problem; therefore, any additional persons would not enhance safety.
    The FAA finds having a flight instructor on board promotes safety 
because a flight instructor is trained to monitor for pilot errors and 
can provide input on technique and best practices during critical 
phases of flight. The FAA continues to find, regardless of whether the 
flight instructor can act as PIC, the flight instructor's experience, 
knowledge, and risk management skills are valuable to the person 
receiving instruction and increase safety, both while in flight and for 
the public. In support of this proposal, the FAA emphasizes its 
longstanding recognition that flight training is a valuable activity 
and having a flight instructor onboard effectuates the FAA's goal of 
promoting safety especially in a scenario where a pilot is 
reestablishing privileges. Likewise, safety is enhanced because two 
pilots, one of whom is an authorized instructor, who are otherwise 
qualified to operate the aircraft are onboard and are available to act 
in the event of a problem. In accordance with Sec.  61.23(a)(3)(ii), 
(b)(5), and (c)(1)(vi), a flight instructor who does not meet medical 
or driver's license requirements, as applicable, cannot act as PIC. In 
all cases, the person acting as PIC must meet all applicable medical or 
driver's license requirements to act as PIC.\22\ The proposed rule does 
not change these requirements to act as PIC.
---------------------------------------------------------------------------

    \22\ Section 61.23(a)(3)(ii) requires that a person must hold at 
least a third-class medical certificate when exercising the 
privileges of a flight instructor and acting as PIC or as a required 
flight crewmember. Section 61.23(b)(5) states that a person is not 
required to hold a medical certificate when exercising the 
privileges of a flight instructor certificate if the person is not 
acting as PIC or serving as a required flight crewmember. Section 
61.23(c)(1)(vi) requires a person hold either a medical certificate 
issued under part 67 or a U.S. driver's license when exercising the 
privileges of a flight instructor certificate and acting as PIC or 
as a required flight crewmember if the flight is conducted under the 
conditions and limitations set forth in Sec.  61.113(i).
---------------------------------------------------------------------------

    The FAA notes that the proposed rule would not codify the position 
in certain legal interpretations that were an outgrowth of the 
Kortokrax and Schaffner interpretations. In FAA Legal Interpretation to 
John Olshock,\23\ the FAA concluded that it would be permissible for a 
properly rated and current instructor (except for Sec.  61.57(b)), and 
a student pilot (who is not yet rated in the aircraft but receiving 
training) to be on board an airplane together during night hours 
because neither was considered to be a passenger to the other. The 
proposed rule would not codify the conclusion made in Olshock that a 
flight instructor need not comply with Sec.  61.57(a) or (b) when 
conducting flight training with someone receiving training who is not 
qualified to act as PIC or a person holding only a student pilot 
certificate. There is no adequate safety justification to continue to 
enable this activity.
---------------------------------------------------------------------------

    \23\ Legal Interpretation to John Olshock (May 4, 2007).
---------------------------------------------------------------------------

    In the proposed rule, the safety justification is supported by the 
fact that there are two certificated and otherwise qualified pilots who 
could each provide knowledge and skills appropriate to the operation of 
the aircraft. Not only is there a qualified flight instructor on board 
with the additional training and aeronautical skills necessary to 
become an authorized instructor, but the second pilot has also 
demonstrated PIC proficiency in the aircraft to an FAA examiner. Each 
of these pilots has the necessary skillset to operate the aircraft.
    Similar to the legal interpretations related to Sec.  61.57 
exceptions for flight instructors, the FAA published interpretations 
that speak to the student/instructor relationship for the purpose of 
enabling certain operations for flight instructors who do not hold an 
FAA medical certificate.\24\ The FAA amended Sec.  61.23 in April 1997 
to clarify when a flight instructor must hold a medical certificate or 
driver's license, as applicable. Because Sec.  61.23 was already 
amended and the proposed addition to Sec.  61.57(e) provides a 
regulatory exception to Sec.  61.57(a) and (b) for persons receiving 
flight training in certain circumstances, the FAA proposes to rescind 
the Legal Interpretation to Kris Kortokrax, Legal Interpretation to 
John Olshock, Legal Interpretation to Roger Schaffner, and Legal 
Interpretation to E.V. Fretwell 30 days after the publication of this 
NPRM. These legal interpretations are not supported by current FAA 
regulations and with the publication of the proposed final rule, would 
no longer be necessary to support the operations they intended to 
clarify.
---------------------------------------------------------------------------

    \24\ See Legal Interpretation to E.V. Fretwell (Sept. 18, 1995).
---------------------------------------------------------------------------

C. Flight Instructor Privileges (Sec. Sec.  61.193 and 61.413)

    Sections 61.193 and 61.413 set forth the privileges of flight 
instructors and sport pilot instructors, respectively. Under Sec. Sec.  
61.193(a)(1) through (9) and 61.413(a)(1) through (9), an authorized 
flight instructor may train and provide endorsements required for 
certificates, ratings, operating privileges, recency of experience 
requirements, and tests. The areas listed do not specifically address 
elective and specialized training activities that the FAA encourages 
but which are not required to meet FAA regulations. These activities 
include, but are not limited to, transition training to a new make and 
model for which a pilot is already rated but has never flown or lacks 
familiarity, and conventional instrumentation to technically advanced 
aircraft training.
    The FAA proposes clarifying amendments to Sec. Sec.  61.193 and 
61.413 to conform the regulations with current FAA policy and industry 
practice. First, the FAA proposes to modify the introductory text of 
Sec. Sec.  61.193(a) and 61.413(a) to clarify that, within the limits 
of their certificates, authorized flight instructors may conduct ground 
and flight training, and certain checking events, in addition to 
issuing endorsements. Second, the FAA proposes to add ``maintaining or 
improving skills for certificated pilots'' to Sec. Sec.  61.193(a)(7) 
and 61.413(a)(6) to clarify that flight instructors are authorized to 
conduct certain specialized and elective training. Third, the FAA 
proposes to add Sec. Sec.  61.193(c) and 61.413(c) to clarify that the 
privileges afforded to authorized flight instructors under these 
provisions do not permit operations that would require an air carrier 
or operating

[[Page 41200]]

certificate or specific authorization from the Administrator.
    Under the current text of Sec. Sec.  61.193 and 61.413, an 
authorized flight instructor may conduct training related only to 
endorsing a person for certificates, ratings, operating privileges, 
recency of experience requirements, and tests. First, this proposal 
amends the introductory text in paragraphs of Sec. Sec.  61.193(a) and 
61.413(a) to clarify that an authorized flight instructor may provide 
training and certain checking events even when the training is not 
conducted in furtherance of issuing an endorsement required by FAA 
regulation. The FAA notes that current Sec. Sec.  61.193(a) and 
61.413(a), and their corresponding reliance on endorsements listed in 
Sec. Sec.  61.193(a)(1) through (9) and 61.413(a)(1) through (9), 
excludes an express reference to elective and specialized training 
activities that are elsewhere encouraged.
    For example, although the FAA encourages specialized elective pilot 
training under Advisory Circular 90-109,\25\ current Sec.  61.193 does 
not explicitly list these types of flight training activities in the 
flight instructor privileges. Similarly, while the FAA flight 
instructor handbooks promote specialized elective training, such as 
transition training and upset recovery training, Sec. Sec.  61.193 and 
61.413 do not list this type of activity as flight instructor 
privileges. These examples illustrate that amending Sec. Sec.  61.193 
and 61.413 is necessary to align the regulatory text with current 
policy and industry practice and encourage flight training activities 
in the interest of public safety.
---------------------------------------------------------------------------

    \25\ Advisory Circular 90-109A, Transition to Unfamiliar 
Aircraft (Jun. 29, 2015).
---------------------------------------------------------------------------

    The proposed modification to Sec. Sec.  61.193(a) and 61.413(a) 
also clarifies that flight instructor privileges include certain 
checking events, when the instructor is appropriately authorized. This 
may include instrument proficiency checks (IPC), night vision goggle 
proficiency checks (NVG), sport pilot proficiency checks, and part 141 
checks. To date, these functions have been an implicit privilege for 
flight instructors. This proposed modification to Sec. Sec.  61.193(a) 
and 61.413(a) makes these privileges explicit.
    Next, the FAA proposes to modify Sec. Sec.  61.193(a)(7) and 
61.413(a)(6) to clarify that an authorized instructor may conduct pilot 
training related to maintaining or improving skills for certificated 
pilots, consistent with FAA publications and current industry practice. 
For example, the aforementioned Advisory Circular 90-109 provides 
recommendations to pilots transitioning to an unfamiliar aircraft, 
which includes training with a flight instructor. Additionally, 
Advisory Circular 61-98, recommends recurrent training to maintain 
proficiency. For instances, Advisory Circular 61-98, states that 
``recurrent training, including a flight to a towered airport with an 
experienced flight instructor, is a good way to gain proficiency with 
airport operations and to develop the required skills to avoid runway 
incursions.'' \26\ The proposed modification to Sec. Sec.  61.193(a)(7) 
and 61.413(a)(6) refers to training that advances a pilot's preexisting 
flying knowledge or skills. Pilots may undergo this type of training to 
increase their proficiency in areas that may not require specific 
endorsements. Thus, the training contemplated under proposed Sec. Sec.  
61.193(a)(7) and 61.413(a)(6) may include transition training to 
operate a new aircraft of the same category and class, aerobatic 
training, formation training, and mountain flying. While none of these 
skills require an endorsement, this training is highly beneficial and 
increases safety for already certificated pilots who intend to perform 
these types of operations. The proposed training does not contemplate 
learning basic flying skills, as in the case of a student pilot. 
Instead, the proposed training includes only training for pilots to 
maintain or advance preexisting skills, not the initial inception or 
development of pilot knowledge.\27\
---------------------------------------------------------------------------

    \26\ Advisory Circular 61-98D, Currency Requirements and 
Guidance for the Flight Review and Instrument Proficiency Check, 
paragraph 2.3.6.1 (Apr. 30, 2018).
    \27\ For example, this training would not include aerobatic 
flights offered to non-pilots.
---------------------------------------------------------------------------

    The FAA finds that having an authorized instructor present in the 
aircraft during specialized and elective training events, and in other 
scenarios not undertaken in furtherance of meeting a specific 
regulatory requirement, promotes safety. Flight training, regardless of 
whether it is necessary to meet a regulatory requirement, improves 
pilot skills and abilities. As noted, it has been longstanding industry 
practice, and the proposed regulation merely clarifies that such 
training is an appropriate exercise of a flight instructor's 
privileges.
    Section 61.1 defines flight training as training received from an 
authorized instructor. This section generally defines an authorized 
instructor as a person who holds a flight instructor certificate and 
who is conducting training in accordance with the privileges and 
limitations of the flight instructor's certificate. As previously 
described, the privileges enumerated in Sec.  61.193 do not currently 
list training related to maintaining or improving skills for 
certificated pilots; therefore, this time would not be considered 
flight training under the express text of the regulation.\28\ The 
proposed modification to this rule would legitimize this time and 
enable authorized flight instructors to log this time as flight 
training. In addition, permitting authorized flight instructors to log 
their flight time during these operations promotes training and 
incentivizes instructors to engage in this activity.
---------------------------------------------------------------------------

    \28\ Under Sec.  61.51(e)(3), an authorized instructor may log 
PIC time for all flight time ``while serving as the authorized 
instructor'' in an operation if the instructor is rated to act as 
pilot in command of that aircraft.
---------------------------------------------------------------------------

    If these amendments are finalized as proposed, the FAA proposes to 
rescind the Mostofizadeh legal interpretation.\29\ In pertinent part, 
this interpretation found that certificated flight instructors 
providing flight training during formation flights were not acting as 
authorized instructors.\30\ The interpretation concluded that the 
definition of ``instruction'' from Sec.  61.193 only included training 
activities conducted to satisfy a pilot's certificates, ratings, 
operating privileges, recency of experience requirements, and testing. 
The FAA recognizes that the interpretation, although consistent with 
the current regulations, would be inconsistent with this proposal if 
finalized. As such, the FAA will rescind the interpretation if it 
finalizes this rule.
---------------------------------------------------------------------------

    \29\ Legal Interpretation to Djavad Mostofizadeh (Apr. 19, 
2013).
    \30\ Section 61.1 defines ``authorized instructor,'' in relevant 
part, as a person who holds a valid flight instructor certificate 
when conducting ground training or flight training ``in accordance 
with the privileges and limitations'' of their flight instructor 
certificate. Those privileges are set forth in Sec.  61.193(a).
---------------------------------------------------------------------------

    The FAA's third proposal would add new Sec. Sec.  61.193(c) and 
61.413(c) to clarify that no privileges beyond bona fide ground and 
flight training, and certain authorized checking events, are 
contemplated within flight instructor privileges. Specifically, the 
proposed paragraphs would clarify that an authorized flight instructor 
cannot utilize the privileges afforded under Sec. Sec.  61.193(a) and 
61.413(a) to conduct any operation that would otherwise require an air 
carrier certificate, operating certificate, or specific authorization 
from the Administrator.
    For example, an instructor is not authorized under this section to 
solely provide transportation or conduct commercial air tours or 
otherwise engage in transportation under the guise

[[Page 41201]]

of flight training.\31\ Likewise, offering introductory or 
``orientation'' flights to non-pilots that maintain no intention of, or 
interest in, obtaining pilot credentials would likely not fall within 
the purview of a flight instructor's privileges, but would likely be 
considered to be air tours.\32\ As specified in proposed Sec. Sec.  
61.193(c) and 61.413(c), an authorized instructor may not engage in 
commercial operations that would otherwise require an air carrier 
certificate, operating certificate, or a specific authorization from 
the Administrator, under the auspices of flight training. Misuse of 
Sec. Sec.  61.193 and 61.413 to provide commercial air tours, is not 
permitted.
---------------------------------------------------------------------------

    \31\ See Legal Interpretation to Doug McQueen, p. 3 (Apr. 16, 
2013).
    \32\ See Legal Interpretation to William Grannis (Aug. 3, 2017) 
(explaining that ``flight training'' contemplates that ``purpose of 
the flight must be student instruction''); see also Legal 
Interpretation to Doug McQueen, p. 3 (Apr. 16, 2013) (explaining 
that ``a flight conducted for compensation or hire . . . where a 
purpose of the flight is sightseeing'' is a ``commercial air 
tour''); and Legal Interpretation to Michael Mason (Oct. 3, 2012) 
(quoting 2007 Final Rule for proposition that ``sightseeing is not 
always a purpose of the barnstorming or vintage aircraft flight 
[but] the FAA considers the overall character of the flight to be 
sightseeing, even if a primary purpose may be the experience of 
flight in an historic aircraft'') (internal brackets and citation 
omitted).
---------------------------------------------------------------------------

    When ascertaining whether an operation is considered flight 
training, the FAA may examine the primary purpose of the flight and 
whether the person being carried for compensation or hire is interested 
in flight training.\33\ Flights for compensation or hire that would 
likely not be construed as flight training include a one-time aerobatic 
or barnstorming flight for a person who holds no pilot credentials or 
an individual ``fulfilling a one-time bucket list item.'' \34\ In these 
scenarios, the person has no intention of obtaining flight training, 
but rather is on board for the experience of the flight itself. 
Operations of this nature would not fall under the Sec.  119.1(e)(1) 
``student instruction'' exclusion and would continue to require an air 
carrier or commercial operator certificate issued in accordance with 
part 119 or a specific authorization from the Administrator, such as a 
commercial air tour letter of authorization. Conversely, persons who 
may be interested in pursuing flight training will necessarily have a 
first introductory flight with an authorized instructor where basic 
flying skills are introduced. This type of introductory flight, 
conducted for educational purposes, would be considered flight 
training.
---------------------------------------------------------------------------

    \33\ Legal Interpretation to Michael Mason (Oct. 3, 2012) 
(explaining that FAA may consider several factors when determining 
whether a flight is conducted for flight training).
    \34\ See Legal Interpretation to William Grannis (Aug. 3, 2017) 
(explaining that because ``persons being carried for compensation or 
hire are not interested in flight training . . . [i]t is therefore 
unlikely that the purpose of these flights would be student 
instruction'').
---------------------------------------------------------------------------

    The FAA also notes that, aside from permitting an authorized flight 
instructor to conduct certain checking events and training related to 
maintaining or improving skills for certificated pilots, the 
requirements in Sec. Sec.  61.193 and 61.413 remain unchanged. For 
example, the list of endorsements an authorized instructor may issue 
remains unchanged under both affected sections. In this regard, the 
proposed amendments do not change the requirement that an instructor 
must be authorized in accordance with the definitions provided in Sec.  
61.1(b) to conduct flight training.
    Authorized flight instructors that conduct training and checking 
events under this proposed amendment may begin documenting and 
recording their flight time to prepare if this proposal becomes final. 
The FAA notes that many instructors have historically logged this time, 
despite the fact that the regulatory language did not explicitly enable 
it. If the proposals related to flight instructors are adopted in a 
final rule, the FAA will permit instructors to credit their prior 
flight time consistent with this amendment retroactively. As a result, 
the FAA encourages authorized instructors to begin documenting and 
recording this time, if not already part of their standard practice, to 
receive credit if this proposal is adopted.
    While the FAA did not evaluate similar changes to Sec.  
61.133(a)(2)(i)(E) and (ii)(D) for airship and balloon flight training, 
the Administrator seeks public comment on the merits of making the same 
change for commercial pilots with lighter-than-air category ratings who 
provide flight training in the final rule, if adopted.

IV. Aircraft Holding Certain Special Airworthiness Certificates

A. Background: Emergency Cease and Desist Order, Litigation, and FAA 
Notice

    The restrictions on operating aircraft that hold special 
airworthiness certificates carrying people for compensation or hire 
recently came under review as a result of an emergency cease and desist 
order issued to Warbird Adventures, Inc. by the FAA in 2020.\35\ In 
that case, the operator maintained a publicly available website that 
advertised opportunities to fly in a limited category aircraft at 
upcoming airshows and allowed members of the public to book flights in 
exchange for compensation. The operator brought a petition for review 
of the emergency order before the court.\36\ The operator argued it was 
conducting flight training for compensation in its limited category 
aircraft, which it claimed is not a prohibited activity under Sec.  
91.315.\37\ In response, the FAA argued that, under the plain language 
of Sec.  91.315, flight training for compensation constitutes operating 
a limited category aircraft carrying a person for compensation or hire 
and, therefore, is a violation of the regulation.\38\
---------------------------------------------------------------------------

    \35\ Emergency Cease and Desist Order Issued by the Federal 
Aviation Administration (July 28, 2020).
    \36\ Warbird Adventures, Inc. v. Fed. Aviation Admin., Petition 
for Review from an Emergency Cease and Desist Order Issued by the 
Federal Aviation Administration on July 28, 2020, Doc. No. 1854466 
(D.C. Cir. 2020).
    \37\ The FAA has not conceded that the flights being operated 
were for the purpose of legitimate flight training.
    \38\ Section 91.315 states, ``No person may operate a limited 
category civil aircraft carrying persons or property for 
compensation or hire.''
---------------------------------------------------------------------------

    On April 2, 2021, the Court dismissed the petition for review of 
the cease and desist order.\39\ Following the Court's dismissal, 
several aviation industry groups sought clarification from the FAA on 
how the decision affected flight training in experimental aircraft, 
since the prohibitory language of Sec.  91.315 for limited category 
aircraft is the same as that in Sec.  91.319 for experimental aircraft. 
In particular, industry advocates sought clarification on whether the 
owner of an experimental aircraft who receives and pays for flight 
training in that aircraft is operating the aircraft carrying a person 
for compensation or hire. Similarly, industry advocates asked whether 
the flight instructor also was operating the aircraft in violation of 
the prohibition in Sec.  91.319. Industry noted that FAA guidance at 
that time allowed an experimental aircraft to be used in such a way 
without running afoul of the requirement to obtain a LODA to conduct 
flight training.\40\
---------------------------------------------------------------------------

    \39\ The Court stated: ``A flight student is a ``person.'' Id. 
Sec.  91.315; see also id. Sec.  1.1. When a student is learning to 
fly in an airplane, the student is ``carr[ied].'' Id. Sec.  91.315. 
And when the student is paying for the instruction, the student is 
being carried ``for compensation.'' Id.'' Warbird Adventures, Inc. 
v. Fed. Aviation Admin., 843 F. App'x 331 (D.C. Cir. 2021).
    \40\ The guidance (FAA Order 8900.1, Vol. 3, Chpt. 11, sec. 1, 
para. 3-292) stated that flight instructors may receive compensation 
for providing flight training in an experimental aircraft but may 
not receive compensation for the use of the aircraft in which they 
provide that flight training unless they obtain a LODA issued under 
Sec.  91.319(h). Likewise, the guidance stated that owners of 
experimental aircraft may receive and provide compensation for 
flight training in their aircraft without a LODA, but owners may not 
receive compensation for the use of their aircraft for flight 
training except in accordance with a LODA issued under Sec.  
91.319(h).

---------------------------------------------------------------------------

[[Page 41202]]

    In response, the FAA published a Notification of Policy in the 
Federal Register laying out its position that, when compensation is 
provided for flight training, it is contrary to the prohibition on 
operating an aircraft carrying a person for compensation or hire even 
when no compensation is provided for the use of the aircraft.\41\ The 
FAA announced that it would rescind the agency guidance that conflicted 
with the plain meaning of the regulation and noted it would consider a 
future rulemaking to remove obstacles to flight training for owners of 
aircraft with certain special airworthiness certificates while 
maintaining prohibitions on broadly offering these aircraft for flight 
training to the public. This NPRM proposes those changes.
---------------------------------------------------------------------------

    \41\ Notification of Policy for Flight Training in Certain 
Aircraft, 86 FR 36493 (Jul. 12, 2021).
---------------------------------------------------------------------------

    In addressing the flight training concerns, the FAA has also found 
conflicts between the general prohibitions in Sec. Sec.  91.315, 
91.319, and 91.325 (applicable to limited category, experimental and 
primary category aircraft respectively) and operating limitations 
placed on these aircraft during the aircraft certification process, 
legal interpretations, and guidance related to carriage of persons or 
property aboard these aircraft during operations involving compensation 
or hire. Terms within these regulations are either broadly defined 
(e.g., operate, person) or have been broadly interpreted over time 
(e.g., compensation), resulting in obstacles to certain flight training 
that the FAA did not intend.
    For example, since the FAA considers a flight instructor to be 
operating an aircraft carrying a person for compensation or hire (even 
when the compensation is paid only for the flight training), then any 
pilot who receives compensation for piloting a limited category, 
experimental, or primary category aircraft would be in violation of the 
rule when operating an aircraft for compensation with another person is 
on board.\42\ The FAA did not intend to prohibit a pilot's receipt of 
compensation for operations which may incidentally carry persons in 
aircraft with certain special airworthiness certificates. In fact, as 
discussed later in this section, the FAA finds that some operations of 
these aircraft necessarily involve carrying people when compensation is 
provided to the operator or flightcrew.
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    \42\ The FAA notes that, while it may seem inappropriate to 
apply the word ``operate'' to required flightcrew in this scenario, 
other part 91 regulations that use the word ``operate'' are clearly 
intended to apply to both the owner of an aircraft and the required 
flightcrew. For example, it would create an absurd result to suggest 
that Sec.  91.111(a), which states ``no person may operate an 
aircraft so close to another aircraft as to create a collision 
hazard,'' should not be applied to the flightcrew. It would result 
in confusion if the regulated community cannot rely on a consistent 
application of the term ``operate'' throughout part 91.
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    The following discussion provides further explanation of the 
obstacles created by the current regulatory language. With respect to 
an aircraft, the word ``operate'' is broadly defined in Sec.  1.1 as 
``use, cause to use or authorize to use aircraft, for the purpose 
(except as provided in Sec.  91.13 of this chapter) of air navigation 
including the piloting of aircraft, with or without the right of legal 
control (as owner, lessee, or otherwise).'' While the term ``operate'' 
may refer to the person piloting an aircraft, it also extends to 
aircraft owners who use an aircraft without piloting it, to owners who 
authorize someone else to use the aircraft, and to the persons that the 
owner authorizes to use the aircraft. Under the regulatory definition, 
an aircraft may be operated by more than one person for purposes of 
part 91 regulations.\43\
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    \43\ For example, Sec.  91.7(a) prohibits any person from 
operating a civil aircraft unless it is in an airworthy condition. A 
violation of this regulation would likely involve the pilot in 
command who is responsible for determining whether that aircraft is 
in condition for safe flight under Sec.  91.7(b), but it may also 
involve the owner of the aircraft if the owner is shown to have 
authorized the use of the aircraft in an unsafe condition.
---------------------------------------------------------------------------

    Likewise, the phrase ``operate carrying persons or property for 
compensation or hire'' has been viewed to mean that the receipt of 
compensation is in exchange for the carriage of persons or property 
rather than that there is receipt of compensation for operating while 
carrying persons or property. Importantly, ``carriage'' does not 
necessarily mean transportation from place to place nor does it speak 
to the reason a person is being carried. Any person on board an 
aircraft with another is considered to be ``carried.'' \44\ Therefore, 
the regulations could be interpreted to mean that no person may receive 
compensation for an operation which carries persons or property, 
regardless of the nature of the operation or whether compensation is 
provided for some service other than the carriage of persons.
---------------------------------------------------------------------------

    \44\ There are a number of operations permitted under part 91 
operating rules that involve the carriage of persons that are not 
point-to-point transportation.
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    Furthermore, the FAA has consistently construed ``compensation'' 
broadly.\45\ Given this broad definition, there are a number of 
scenarios where operations may be precluded that the FAA did not intend 
to foreclose. For instance, flights involving an aircraft manufacturer 
carrying prospective customers in an aircraft with an experimental 
special airworthiness certificate utilizing the experimental market 
survey purpose or a flight instructor providing customer crew training 
under this purpose could be in violation if the pilot or instructor, 
respectively, is being compensated. \46\
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    \45\ See Legal Interpretation to Joseph Kirwan (May 27, 2005). 
Compensation ``does not require a profit, a profit motive, or the 
actual payment of funds.'' Rather, compensation is the receipt of 
anything of value. See also Legal Interpretation to John W. 
Harrington (Oct. 23, 1997); Blakey v. Murray, NTSB Order No. EA-5061 
(Oct. 28, 2003). The FAA has previously found that reimbursement of 
expenses (fuel, oil, transportation, lodging, meals, etc.), 
accumulation of flight time, and goodwill in the form of expected 
future economic benefit could be considered compensation.
    \46\ See Sec.  21.191(f), which describes the market survey 
purpose as, ``Use of aircraft for purposes of conducting market 
surveys, sales demonstrations, and customer crew training only as 
provided in Sec.  21.195.''
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    With this proposed rule, the FAA seeks to narrow and more clearly 
define the types of operations that are precluded in aircraft holding 
certain special airworthiness certificates. Therefore, the FAA is 
proposing changes to clarify how these aircraft may be operated.
    Should the modifications to the part 91 regulations proposed by 
this rule become final, the FAA will rescind certain legal 
interpretations related to the carriage of persons or property for 
compensation or hire in limited category, experimental, and primary 
category aircraft (i.e., Legal Interpretation to Bob Shaw (Feb. 4, 
2008), Legal Interpretation to Joy Ratini (Apr. 30, 2014), Legal 
Interpretation to Gregory Morris (Oct. 7, 2014), and Legal 
Interpretation to E.J. Sinclair (Jul. 22, 2015)). The purpose of those 
affected legal interpretations was to explain the circumstances under 
which persons or property could be carried for compensation or hire 
under Sec. Sec.  91.315, 91.319, and 91.325. However, the modifications 
proposed by this rule would implement a new regulatory structure which 
would replace the explanations provided by the legal interpretations.

B. Part 91 Regulations Governing the Operation of Aircraft With Certain 
Special Airworthiness Certificates (Sec. Sec.  91.315, 91.319, 91.325, 
and 91.327)

    The FAA proposes to amend the part 91 regulations governing the 
operation of limited category, experimental, and primary category 
aircraft to reflect two modifications. First, the FAA proposes to 
modify Sec. Sec.  91.315, 91.319(a)(2), and

[[Page 41203]]

91.325(a) (applicable to limited category, experimental, and primary 
category aircraft, respectively) to change the existing language from a 
general prohibition on carrying persons or property for compensation or 
hire to more specifically identify the commercial operations that may 
not be conducted in these aircraft if persons or property are carried 
on board. These operations would include air carrier or commercial 
operations \47\ as well as other commercial operations in which persons 
or property are carried. Specifically, except as provided in proposed 
Sec.  91.326 (discussed more fully later in the preamble), the proposed 
amendments would prohibit conducting operations which: (1) require an 
air carrier or commercial operator certificate issued under part 119; 
(2) are listed in Sec.  119.1(e); (3) require management specifications 
for a fractional ownership program issued in accordance with subpart K 
of part 91; or (4) are conducted under parts 129, 133, or 137. The 
proposed modifications are intended to narrow the prohibition on the 
carriage of persons or property for compensation or hire and to clarify 
the FAA's intent, which is to prohibit the operation of aircraft 
holding certain special airworthiness certificates as air carriers, 
commercial operators, or otherwise carrying persons or property for 
hire in a manner that would require authorization from the 
Administrator, such as an air carrier or a commercial air tour. These 
aircraft are purpose-built for specific operations and do not meet the 
same rigorous design, build, and maintenance standards as aircraft that 
are eligible for use in passenger and property carrying operations for 
hire. Therefore, aircraft holding certain special airworthiness 
certificates require additional restrictions on operations for 
compensation or hire.
---------------------------------------------------------------------------

    \47\ Section 1.1 defines ``Air carrier'' as a person who 
undertakes directly by lease, or other arrangement, to engage in air 
transportation. Section 1.1 defines ``Commercial operator'' as a 
person who, for compensation or hire, engages in the carriage by 
aircraft in air commerce of persons or property, other than as an 
air carrier or foreign air carrier or under the authority of part 
375 of this title. Where it is doubtful that an operation is for 
``compensation or hire'', the test applied is whether the carriage 
by air is merely incidental to the person's other business or is, in 
itself, a major enterprise for profit.
---------------------------------------------------------------------------

    Second, in proposed Sec.  91.326(a), the FAA proposes to codify the 
2023 NDAA provision to allow certain flight training, checking, and 
testing in experimental aircraft without a LODA and apply this 
allowance to limited and primary category aircraft and establish a 
consistent LODA framework for limited category and experimental 
aircraft in Sec.  91.326(b).
    Section 91.326(a) would establish the conditions under which a 
person may operate these aircraft to accomplish training, checking, and 
testing without the need to obtain a LODA from the FAA. For those 
operations that cannot meet the conditions for operating without a 
LODA, Sec.  91.326(b) would codify a consistent framework for 
requesting a LODA to conduct flight training, checking, and testing in 
limited category and experimental aircraft similar to the allowance 
currently reflected in Sec.  91.319(h) for experimental aircraft. The 
FAA also proposes corresponding amendments to the general prohibitions 
in Sec. Sec.  91.315, 91.319(a)(2), and 91.325(a) to reflect the 
exception in newly proposed Sec.  91.326. Section 91.326 is discussed 
more fully later in this preamble.
1. Prohibited Commercial Operations
    The FAA proposes to identify part 119 and other regulatory parts 
pertaining to specific commercial operations to clearly delineate the 
operations involving the carriage of persons and property for 
compensation and hire that are prohibited in aircraft holding certain 
special airworthiness certificates. This proposal balances the 
additional safety benefits afforded by Sec.  91.326 for flight 
training, checking, and testing with the public expectation and safety 
mitigations necessary for operations involving aircraft holding certain 
special airworthiness certificates. Where there is receipt of 
compensation for transportation, the public expects, and the FAA 
demands, a higher level of safety.\48\
---------------------------------------------------------------------------

    \48\ See Advisory Circular No. 61-142, Sharing Aircraft 
Operating Expenses in Accordance with 14 CFR 61.113(c), (2020).
---------------------------------------------------------------------------

    Importantly, transportation does not necessarily mean ``from place 
to place,'' as evidenced by numerous interpretations and guidance 
referencing ``common carriage,'' whereby the FAA has qualified two of 
the four tenets of common carriage as ``(2) to transport persons or 
property (3) from place to place.'' \49\ The FAA notes that, from a 
regulatory standpoint, transportation can simply mean conveyance for a 
purpose, such as a non-stop commercial air tour that takes off and 
lands at the same airport or carriage of an aerial photographer. Each 
of these examples represents an operation where a person has paid to be 
carried in an aircraft and which is precluded under the text of the 
current rule and would continue to be precluded under the proposed 
rule. Operations where people are carried in an aircraft, but are not 
paying for that conveyance, are discussed in greater detail later in 
this section.
---------------------------------------------------------------------------

    \49\ See Advisory Circular No. 61-142, Sharing Aircraft 
Operating Expenses in Accordance with 14 CFR 61.113(c), (2020).
---------------------------------------------------------------------------

    Part 119 contains basic requirements that apply to each person that 
operates or intends to operate a civil aircraft as an air carrier or 
commercial operator, or both, in air commerce. This part specifies the 
types of operations that the FAA has determined require greater 
oversight, maintenance, training, and operational requirements to 
ensure public safety when carrying persons or property for compensation 
or hire. Depending on the type of operation and aircraft used, an air 
carrier or commercial operator conducts these operations under the 
operating rules in either part 121 or part 135.
    Part 119 likewise excepts certain commercial operations from 
certification under that part. Carriage of persons or property for 
compensation or hire during these excepted operations will continue to 
be prohibited in aircraft holding certain special airworthiness 
certificates under the proposed modifications to the rules. Section 
119.1(e) enumerates various types of commercial operations that may be 
conducted without an air carrier or commercial operator certificate. 
For example, Sec.  119.1(e)(2) refers to nonstop commercial air tours, 
Sec.  119.1(e)(4) lists various forms of aerial work operations, and 
Sec.  119.1(e)(6) refers to intentional parachute drop operations. 
These types of commercial operations are conducted under the general 
operating rules in part 91. In addition to these commercial operations 
that may be conducted under part 91, subpart K of part 91 allows for 
carriage of persons or property in fractional ownership programs 
without part 119 certification. Other parts, such as parts 129, 133, 
and 137, specify regulations related to other highly-specific 
commercial operations that require additional oversight by the FAA but 
do not require part 119 certification.
    Each of these parts, as they relate to carriage of persons or 
property for compensation or hire, contain operating rules intended to 
ensure the safety of those being carried, as well as the non-
participating public on the ground. The restrictions on using aircraft 
with special airworthiness certificates to conduct these operations are 
based on a safety continuum,\50\ which assigns

[[Page 41204]]

aircraft privileges based on the corresponding level of design, build, 
maintenance, and operational requirements. Aircraft that are built 
specifically for the purpose of carrying persons or property for 
compensation or hire are required to meet higher design and build 
standards, such as those required by 14 CFR parts 23, 25, 27, and 29 
and appear at the highest levels of the safety continuum. These 
aircraft may be used for compensation or hire, and they are generally 
not limited to specific areas of operation or special operating rules. 
Aircraft used for unique commercial operations, such as part 133 
rotorcraft external load operations and part 137 agricultural aircraft 
operations are purpose-built and have operating limitations assigned to 
perform those tasks safely. By contrast, aircraft holding limited 
category, experimental, and primary category airworthiness certificates 
were not built or certificated for the aforementioned purposes, nor 
were they contemplated for use in those regulatory frameworks. As such, 
these aircraft fall lower on the safety continuum than standard 
category aircraft. Specifically, limited aircraft fall lower on the 
continuum as they were built to a standard but retain special 
airworthiness certification since they were designed for military uses. 
Experimental aircraft are on the opposite end of the continuum from 
standard category aircraft. Experimental aircraft have not necessarily 
been found to meet airworthiness standards and are excepted from many 
of the regulatory maintenance and inspection requirements of standard 
category aircraft.51 For these reasons, experimental 
aircraft are assigned the most restrictive operating limitations. 
Finally, primary category aircraft were built for personal and 
recreational use. As such, aircraft holding special airworthiness 
certificates continue to have associated regulations which limit 
certain activities.
---------------------------------------------------------------------------

    \50\ Safety Continuum is described as the level of safety 
established by regulation, guidance and oversight that changes based 
on risk and societal expectations of safety. The safety continuum 
applies an appropriate level of safety from small unmanned aircraft 
systems to large transport category aircraft. The differing levels 
of safety balance the needs of the flying public, applicants and 
operators while facilitating both the advancement of safety and the 
encouragement of technological innovation. https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/air/transformation/csp/concepts.
---------------------------------------------------------------------------

    The intent of this proposal is to update regulatory language to 
align the FAA's intent with the public's expectation for operations in 
aircraft with certain special airworthiness certificates, while 
ensuring no adverse effect on safety. To continue to ensure public 
safety and more clearly identify those operations prohibited in 
aircraft that hold certain special airworthiness certificates, the FAA 
proposes to list in Sec. Sec.  91.315, 91.319, and 91.325, the specific 
operations (i.e., operations that require a part 119 air carrier or 
commercial operator certificate or are identified in Sec.  119.1(e), 
operations that require management specifications under subpart K of 
part 91, operations under part 129, part 133, and part 137) that are 
prohibited in aircraft that hold certain special airworthiness 
certificates. This more specific language would replace the broad 
language in the current part 91 regulations that, as previously 
discussed, forecloses operations that the FAA did not intend to 
prohibit.
    The FAA finds that listing out the specific operations that are 
prohibited rather than relying on the broad language currently 
reflected in Sec. Sec.  91.315, 91.319, and 91.325 would better advise 
the regulated community on how to comply. Notably, part 119 did not 
exist when the FAA introduced these special airworthiness categories 
into its regulations. However, today part 119 is a widely used 
regulatory part supported by legal interpretations, FAA advisory 
circulars, and case law. The regulations and associated guidance will 
more clearly inform the owners and operators of aircraft with special 
airworthiness certificates that operations requiring part 119 
certification as well as those commercial operations excepted from part 
119 certification are not permitted in their aircraft when persons or 
property are carried on board for compensation. For this reason, the 
FAA does not believe that further discussion of the operations 
requiring or excepted from part 119 certification is necessary in this 
NPRM.
    Permitting the listed operations in aircraft with certain special 
airworthiness certificates is not in the interest of public safety. 
These operations were not intended for aircraft holding certain special 
airworthiness certificates in the original regulations when they were 
developed, and they would continue to be excluded from these types of 
operations under the proposed rules. The FAA finds that there are 
sufficient aircraft that are appropriately certificated (e.g., standard 
and restricted category) to conduct the types of commercial operations 
previously described. The FAA understands the interest by owners and 
operators of aircraft with special airworthiness certificates to 
broaden their opportunities to receive compensation for the use of 
their aircraft; however, there is simply no compelling reason to lower 
the existing standard and expand the operating footprint for aircraft 
that hold these special airworthiness certificates.
    For these reasons, the FAA proposes to revise the regulatory 
language of Sec. Sec.  91.315, 91.319(a)(2), and 91.325(a) to clarify 
that, except for flight training, checking, and testing as specified in 
Sec.  91.326, persons may not operate these aircraft carrying persons 
or property for compensation or hire in operations that require an air 
carrier or commercial operator certificate issued under part 119; are 
listed in Sec.  119.1(e); require management specifications for a 
fractional ownership program issued in accordance with subpart K of 
part 91; or are conducted under parts 129, 133, or 137.
2. Limited Category Airworthiness Certificates (Sec.  91.315)
    The limited category airworthiness certification was developed 
shortly after World War II. This certification enabled the large number 
of available military surplus aircraft to continue to be useful after 
the war, but only for limited purposes.\52\ To be granted a limited 
category airworthiness certificate, the aircraft's military records 
could not disclose any characteristics which would render it unsafe 
when operated as a civil aircraft in accordance with the limitations 
and conditions prescribed by the Administrator.\53\ Additional 
operating limitations were required for limited category aircraft to 
account for the difference in certification requirements between 
limited and standard category aircraft. These limitations included the 
prohibition on carrying passengers and cargo for hire. Eventually, the 
limited category regulatory language became even more restrictive to 
prohibit the carriage of persons, not just passengers, for compensation 
or hire.\54\
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    \52\ Pilot Certificates, 14 CFR, 1946 Supp. 2132. Specifically, 
the Civil Air Regulations (CAR) part 09 explained that the limited 
category airworthiness classification was developed ``for the 
purpose of making available to the public certain military surplus 
aircraft which were originally designed for the military services of 
the United States for combat and other specialized purposes and 
which experience in military service has shown to be safe for 
operation so long as the operation is confined to flights in which 
neither passengers nor cargo are carried for hire.''
    \53\ Pilot Certificates, 14 CFR 09.10(c), 1946 Supp. 2130.
    \54\ While earlier versions of Sec.  91.315 only prohibited the 
carriage of ``passengers'' for compensation or hire, the regulation 
was subsequently amended to prohibit the carriage of any ``persons'' 
for compensation or hire. Compare Pilot Certificates, 14 CFR 
09.10(c), 1946 Supp. 2130, note (confining use of limited category 
aircraft to flights ``in which neither passengers nor cargo are 
carried for hire'') with 54 FR 34284, 34309 (Aug. 18, 1989) 
(prohibiting ``carrying persons or property for compensation or 
hire'').
---------------------------------------------------------------------------

    The history of limited category airworthiness certificates 
illustrates the

[[Page 41205]]

FAA's original intent of who may be carried in these aircraft. The FAA 
finds that this history, in conjunction with current industry practice 
and ensuring consistency with other special airworthiness certificated 
aircraft, supports this proposal to modify the language in Sec.  91.315 
to better articulate the types of operations permitted in these 
aircraft. Overall, this proposed rule would increase the operational 
privileges afforded to limited category aircraft by enabling, with 
certain limitations, flight training, checking, and testing, as well as 
modify the generally prohibitive language to be more specific with 
regard to operations that cannot be conducted for compensation or hire 
with persons or property on board. Therefore, the FAA is proposing to 
amend Sec.  91.315 to clarify that, except as provided in Sec.  91.326 
(discussed later in this section), persons may not operate these 
aircraft carrying persons or property for compensation or hire in 
operations which require an air carrier or commercial operator 
certificate issued under part 119; are listed in Sec.  119.1(e); 
require management specifications for a fractional ownership program 
issued in accordance with subpart K of part 91; or are conducted under 
parts 129, 133, or 137.
3. Experimental Airworthiness Certificates (Sec.  91.319)
a. Experimental Aircraft--General
    Experimental aircraft do not meet the same design, build, and 
maintenance requirements as aircraft that hold standard airworthiness 
certificates. Experimental aircraft fall lower on the safety continuum 
than limited and primary category aircraft, as they are not necessarily 
built to any standard. For this reason, experimental aircraft are 
assigned additional operating limitations in Sec.  91.319, to include 
types of operations (Sec.  91.319(a)(1)) \55\ that may be conducted and 
areas of operation (Sec.  91.319(c)) in which operations may take 
place.\56\
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    \55\ Section 91.319(a)(1) specifies that no person may operate 
an aircraft that has an experimental certificate for other than the 
purpose for which the certificate was issued.
    \56\ Section 91.319(c) specifies that unless otherwise 
authorized by the Administrator in special operating limitations, no 
person may operate an aircraft that has an experimental certificate 
over a densely populated area or in a congested airway. The 
Administrator may issue special operating limitations for particular 
aircraft to permit takeoffs and landings to be conducted over a 
densely populated area or in a congested airway, in accordance with 
terms and conditions specified in the authorization in the interest 
of safety in air commerce.
---------------------------------------------------------------------------

    The FAA proposes to modify the broad language in Sec.  91.319(a)(2) 
regarding the operation of these aircraft carrying persons or property 
for compensation or hire to further clarify its intent. As previously 
discussed, the plain language in the current regulatory text of Sec.  
91.319(a)(2) results in an outcome that the FAA finds overly 
restrictive. The current language results in the prohibition of 
operations that the experimental purposes listed in Sec.  21.191 were 
specifically designed to enable.\57\ For example, the experimental 
purpose of research and development (R&D) in Sec.  21.191(a) was 
designed to accommodate testing new aircraft design concepts, new 
aircraft equipment, new aircraft installations, new aircraft operating 
techniques, or new uses for aircraft. Often, aircraft manufacturers and 
equipment or component manufacturers work in tandem during development 
and testing to ensure safe system integration. This testing may require 
experts from both manufacturers to participate in the test flights. 
However, the plain language of Sec.  91.319(a)(2) would prohibit the 
operator from carrying persons if the aircraft or system is being 
developed for compensation \58\ because both the manufacturer and the 
pilot could be construed to be operating while carrying persons or 
property for compensation or hire. The exclusion of persons performing 
an essential function that is directly related to the experimental 
purpose unnecessarily places a burden on the operator to obtain an 
exemption to complete this work and was not intended to fall under the 
broad language of the regulation.
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    \57\ See Sec.  21.191 Experimental Certificates for a list of 
experimental purposes.
    \58\ Compensation can come in many forms. For example, an 
aircraft manufacturer might be compensated by way of a Department of 
Defense contract to build aircraft for the military or to test 
certain equipment.
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    There are other experimental purposes where compensation may be a 
result of the operation. For instance, the experimental crew training 
purpose (Sec.  21.191(c)) is silent as to whether pilots (instructor or 
trainee) are compensated during training. Likewise, the experimental 
market survey purpose (Sec.  21.191(f)), developed specifically to 
demonstrate the aircraft to persons who are in a position to make a 
purchase decision in hopes of selling an aircraft or component 
(expected future economic benefit), is also silent as to whether pilots 
are compensated during such an operation.
    The FAA finds there would be no adverse effect on safety from the 
proposed modified language because experimental aircraft are assigned 
additional operating limitations that mitigate risk. Experimental 
aircraft are limited by Sec.  91.319(a)(1) in the types of operations 
they may perform. Section 91.319(a)(1) specifies that persons are 
prohibited from operating an experimental aircraft for other than the 
purpose for which the certificate was issued.\59\ This means, for 
example, that an experimental aircraft certificated for the purpose of 
R&D can only be operated to perform those R&D tests identified at the 
time of certification. R&D certificates have a maximum expiration date 
of one year. This affords the FAA an opportunity to reevaluate the 
validity of the proposed test. Likewise, an experimental aircraft 
certificated for the purpose of crew training can only be operated to 
train the applicant's flight crews. There is no experimental purpose 
which would support the carriage of persons or property as a major 
enterprise for profit.\60\
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    \59\ See Sec.  21.191 Experimental Certificates for a complete 
listing of all experimental purposes.
    \60\ The Sec.  1.1 Commercial Operator definition explains that 
``[w]here it is doubtful that an operation is for `compensation or 
hire,' the test applied is whether the carriage by air is merely 
incidental to the person's other business or is, in itself, a major 
enterprise for profit.''
---------------------------------------------------------------------------

    Furthermore, experimental aircraft are restricted by Sec.  
91.319(c) from overflight of densely populated areas unless 
specifically authorized by the Administrator. This prohibition 
mitigates risk to non-participating public on the ground. In addition, 
under Sec.  91.319(i), the Administrator may impose additional 
operating limitations on experimental aircraft based on aircraft 
characteristics and associated risks. These additional operating 
limitations further mitigate risks associated with various hazards that 
may be introduced in experimental aircraft. For these reasons, the FAA 
sees no adverse effect on safety in the proposed modification of Sec.  
91.319(a)(2) to more accurately reflect the prohibited operations 
contemplated for experimental aircraft.
b. Experimental Light-Sport Aircraft (Sec.  91.319)
    Section 91.319(e) contains specific limitations on the use of 
certain experimental aircraft certificated under Sec.  
21.191(i)(1).\61\ The FAA proposes to modify Sec.  91.319(e)(2) to 
remove the date restriction on flight training in these aircraft and 
direct readers to the flight training, checking, and testing in 
proposed Sec.  91.326. Likewise, the FAA proposes to modify paragraph 
(f),

[[Page 41206]]

regarding the leasing of aircraft issued an experimental certificate 
under Sec.  21.191(i).
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    \61\ Section 21.191(i)(1) covers light-sport aircraft that have 
not been issued a U.S. or foreign airworthiness certificate and do 
not meet the criteria for ``ultralight vehicles'' provided in Sec.  
103.1.
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    Before 2004, the FAA granted exemptions to permit two-seat 
ultralight-like aircraft, which did not meet the part 103 requirements 
of this chapter, to be used for compensation or hire for the purpose of 
flight training.\62\ On July 27, 2004, the FAA issued a final rule 
defining light-sport aircraft to include simple, small, lightweight, 
low-performance aircraft. Additionally, in the 2004 final rule the FAA 
created a new special airworthiness certificate in the light-sport 
category for special light-sport aircraft (SLSA) in Sec.  21.190 and 
added light-sport aircraft to the existing experimental special 
airworthiness certificate for experimental light-sport aircraft (ELSA) 
in Sec.  21.191(i).\63\
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    \62\ By regulation, an ultralight vehicle must be used or 
intended to be used for manned operation in the air by a single 
occupant and may be used or intended to be used for recreation or 
sport purposes only. 14 CFR 103.1(a), (b). Because two-place 
aircraft do not meet this requirement, they cannot be operated as 
ultralight vehicles under part 103.
    \63\ 69 FR 44881 (Jul. 27, 2004). Under Sec.  21.191(i)(1), no 
experimental certificates may be issued for these aircraft after 
January 31, 2008.
---------------------------------------------------------------------------

    The 2004 final rule permitted instructors to conduct flight 
training in these ELSA aircraft for compensation or hire until January 
31, 2010, which diminished the need for the part 103 training 
exemptions that allowed the operation of two-seat ultralight-like 
aircraft that did not conform to part 103. As stated in the 2004 final 
rule, a significant purpose of the rule was to certificate those two-
seat ultralight-like aircraft previously operated under part 103 
training exemptions and those two-seat and single-seat unregistered 
ultralight-like aircraft operating outside of the regulations.
    Specifically, SLSA regulations include aircraft manufactured 
according to an industry consensus standard rather than a type 
certificate. ELSA regulations include provisions for: (1) a temporary 
allowance for migration of two-seat ultralight-like aircraft that did 
not conform to 14 CFR part 103 and were previously operated under part 
103 training exemptions, (2) kit-built versions of SLSA aircraft, and 
(3) aircraft previously issued a special airworthiness certificate in 
the light-sport category under Sec.  21.190.
    When publishing the 2004 final rule, the FAA anticipated that the 
newly manufactured SLSA would replace the former two-seat ultralight-
like aircraft that did not conform to 14 CFR part 103 (newly 
certificated as ELSA) such that flight training in ELSA would no longer 
be necessary. The FAA, knowing that the manufacture of the new SLSA 
aircraft would take time, created provisions in existing Sec.  91.319 
to allow for an extension of the time period to permit the use of 
properly registered aircraft with ELSA airworthiness certificates to be 
used for flight training by the same owner until January 31, 2010. 
After January 31, 2010, ELSA aircraft were no longer permitted to be 
used for flight training for compensation or hire.
    The FAA predicted that 60 months would be an adequate amount of 
time for the new SLSA to enter service to replace the ELSA and meet 
flight-training demands. The FAA also anticipated that 60 months would 
provide the owners of the transitioning ELSA with additional time to 
purchase SLSA to provide flight training under the new rule, thereby 
delaying replacement costs. In addition, the FAA believed the action 
would further expand the growth of the industry as a whole. However, 
the new SLSA has not materialized in the way that was projected, 
especially for two-seat aircraft used for light-sport and ultralight 
training. Industry production of all aircraft slowed during the 
projected period, resulting in lower acquisition costs of standard 
category aircraft that could be operated as light-sport aircraft. This 
caused the projected production of SLSA to no longer be considered 
financially viable, in many cases.
    Experimental light-sport aircraft are good training aircraft for 
light-sport and ultralight vehicles because they may be low mass/high 
drag aircraft that contain a second seat that may be occupied by an 
authorized flight instructor. The use of ELSA as a training option for 
light-sport aircraft and ultralights provides an avenue for structured 
flight training from an FAA certificated flight instructor. The FAA 
does not wish to impede individuals who want to take advantage of 
flight training that is relevant to the type of aircraft they operate. 
Additionally, the FAA recognizes the importance of availability of 
training aircraft for new light-sport pilots and existing pilots who 
are transitioning from a conventional aircraft to a low mass/high drag 
aircraft. While two-seat, light-sport, low mass/high drag trainers with 
SLSA airworthiness certificates can be found on the market for use in 
flight training, they do not exist in numbers that provide for 
widespread availability.
    Given the aforementioned considerations and the delayed timeline 
for availability of SLSA aircraft, the FAA undertook a new rulemaking 
in 2014. On October 24, 2014, the FAA published a NPRM titled Removal 
of the Date Restriction for Flight Training in Experimental Light Sport 
Aircraft.\64\ To ensure these aircraft are used solely for the purpose 
of flight training, and to better control and monitor the use of ELSA 
for flight training, the FAA proposed to require a LODA for persons who 
intended to conduct flight training for compensation or hire using 
ELSA. The FAA proposed this change to allow for increased availability 
of flight training in aircraft with similar characteristics to light-
sport aircraft and ultralights. As mentioned previously, the 2004 final 
rule permitted training in ELSA for compensation or hire for the 
purpose of flight training until January 31, 2010. The NPRM proposed to 
remove the date restriction in Sec.  91.319(e)(2) and add language to 
permit training in certain ELSA for compensation or hire through 
existing deviation authority provided in Sec.  91.319(h) of this part.
---------------------------------------------------------------------------

    \64\ 83 FR 53590 (Oct. 24, 2018).
---------------------------------------------------------------------------

    For the reasons provided in the concurrently issued Withdrawal of 
the Removal of the Date Restriction for Flight Training in Experimental 
Light Sport Aircraft, the FAA is withdrawing the NPRM titled Removal of 
the Date Restriction for Flight Training in Experimental Light Sport 
Aircraft, and instead is developing this rule that resolves the 
discrepancy more broadly for all experimental aircraft and better 
serves the public interest.
    This proposed rule will address the parameters of flight training 
in experimental light-sport aircraft more comprehensively than the 2014 
NPRM would have. This rule also proposes to create a consistent flight 
training framework for limited category and experimental aircraft. 
Therefore, flight training in ELSA is more appropriately incorporated 
into this rulemaking.
    The FAA is incorporating changes to Sec.  91.319(e) and (f) to 
increase the availability of light-sport aircraft for training, and aid 
individuals who wish to train in the type of aircraft they operate. 
This rulemaking proposes to change Sec. Sec.  91.319(e)(2) and 
91.319(f) to direct stakeholders to proposed Sec.  91.326, which 
describes exceptions for flight training, checking, and testing. The 
FAA recognizes that training in an ELSA is beneficial for pilots to 
gain familiarity with the performance and handling qualities of other 
light-sport aircraft and ultralights.
    In addition, proposed Sec.  91.319(f)(2) would allow a person 
receiving flight training to lease certain ELSA for the purpose of 
accomplishing solo flight and practical test in accordance with a 
training program included in the

[[Page 41207]]

deviation authority authorized in accordance with proposed Sec.  
91.326(b). Currently, Sec.  91.319(f) prohibits the leasing of certain 
ELSA, except to tow a glider or unpowered ultralight vehicle. If the 
proposed rule becomes final, certain ELSA aircraft will be eligible to 
operate for the purpose of flight training in accordance with proposed 
Sec.  91.326. Removing the leasing restriction under certain 
circumstances is necessary to meet the part 61 pilot certification 
requirements of this chapter. Because of the unique characteristics of 
these aircraft, the FAA has determined that training in accordance with 
a Sec.  91.326(b) LODA, to include solo flight and practical tests 
required for pilot certification, enhances safety. Solo flight and 
practical tests may require leasing of the aircraft.
c. Miscellaneous Amendments
    The FAA also proposes a few miscellaneous amendments to Sec.  
91.319. First, the FAA proposes to modify Sec.  91.319(d)(3) to use 
``air traffic control'' (ATC) in place of ``control tower.'' This 
language is consistent with the other regulatory sections that 
reference ``air traffic control'' instead of ``control tower.'' \65\ 
Although the current requirement for notification is limited to only 
the control tower, if present, expanding the requirement to notify all 
ATC facilities with which the pilot interacts during the course of a 
flight, if any, increases safety by informing controllers of the 
experimental nature of the aircraft. This information can help ATC to 
understand there may be limitations associated with the aircraft. It 
will remain the responsibility of the operator to comply with those 
limitations, however notification to all ATC facilities will help 
controllers maintain better awareness of the aircraft to which they are 
providing service. If no ATC services are utilized, there is no 
additional requirement for notification.
---------------------------------------------------------------------------

    \65\ For example, see Sec. Sec.  65.45, 91.123, 105.13, and 
170.13.
---------------------------------------------------------------------------

    The FAA also proposes to remove the current deviation authority in 
Sec.  91.319(h). The proposed removal of paragraph (h) would provide 
additional clarity to current LODA holders and potential LODA 
applicants by maintaining one LODA framework under proposed Sec.  
91.326(b). Current and potential LODA holders would be directed to 
proposed Sec.  91.326(b) with the introductory language in Sec.  
91.319(a). Additionally, proposed Sec.  91.326(c) would inform 
currentSec.  91.319(h) LODA holders on the status of their LODAs if 
this proposal is adopted as a final rule.
4. Primary Category Airworthiness Certificates (Sec.  91.325)
    The primary category was created in 1992 to stimulate the 
production of a new class of simpler personal use and recreational 
aircraft.\66\ To achieve this intent, the primary category required a 
simplified certification process though still requiring aircraft to be 
built to a design standard. At that time, the FAA indicated that flight 
training could be conducted in these aircraft.\67\ However, as 
previously discussed, the broad language prohibiting operations 
carrying persons or property for compensation or hire precludes a 
flight instructor from receiving compensation while carrying a person 
who is receiving flight training.
---------------------------------------------------------------------------

    \66\ 57 FR 41360 (Sept. 9, 1992).
    \67\ 57 FR 41360 (Sept. 9, 1992).
---------------------------------------------------------------------------

    For consistency with the limited category and experimental aircraft 
operating limitations, the FAA proposes to modify the language in Sec.  
91.325(a) and (b) and create new paragraph (c). First, the FAA proposes 
to modify the language in Sec.  91.325(a) to clarify that persons may 
not operate these aircraft carrying persons or property for 
compensation or hire in operations that require an air carrier or 
commercial operator certificate issued under part 119; are listed in 
Sec.  119.1(e); require management specifications for a fractional 
ownership program issued in accordance with subpart K of part 91; or 
are conducted under parts 129, 133, or 137. Second, to align the 
primary category regulatory language with the original intent at the 
time of its inception, the FAA proposes to modify Sec.  91.325(b) and 
add new (c) to enable primary category aircraft to be used for flight 
training, checking, and testing without the need to obtain deviation 
authority.
    Consistent with the limitation in current Sec.  91.325(b), primary 
category aircraft are divided into two groups, with different 
privileges afforded to each, due to differences in maintenance 
requirements. The first group consists of primary category aircraft 
that are maintained by the pilot-owner under an approved special 
inspection and maintenance program. The second group consists of 
primary category aircraft that are maintained by part 65 certificated 
mechanics or authorized repair stations.\68\
---------------------------------------------------------------------------

    \68\ 14 CFR part 145.
---------------------------------------------------------------------------

    Primary category aircraft that are maintained by FAA certificated 
mechanics or authorized repair stations fall higher on the safety 
continuum than those that are pilot-owner maintained. To determine the 
precise position of primary category aircraft on the safety continuum, 
and thereby determine the corresponding privileges, the FAA compares 
the regulatory privileges and the design, build, and maintenance 
requirements to those of light-sport aircraft (LSA).
    LSA do not meet 14 CFR airworthiness standards. Instead, these 
aircraft must be designed, built, and maintained in accordance with 
industry consensus standards. In accordance with Sec.  91.327(b), LSAs 
must be maintained by FAA certificated mechanics, authorized repairmen, 
or authorized repair stations. Under Sec.  91.327(a)(2), operators of 
LSA are authorized to conduct flight training without a requirement to 
hold a LODA.\69\ The FAA proposes to grant similar regulatory 
privileges to primary category aircraft with similar certification and 
maintenance requirements. To that end, the FAA proposes granting 
certain primary category aircraft privileges similar to those afforded 
to LSAs.
---------------------------------------------------------------------------

    \69\ Notably, as a miscellaneous amendment, the FAA is also 
proposing to clarify in Sec.  91.327(a)(2) that checking and testing 
are also permitted.
---------------------------------------------------------------------------

    For these reasons, the FAA proposes to add Sec.  91.325(c) to 
permit primary category aircraft maintained by FAA certificated 
mechanics or authorized repair stations to be operated for compensation 
or hire for the purposes of conducting flight training, checking, and 
testing without deviation authority or an exemption.
    Under proposed Sec.  91.325(c), primary category aircraft which are 
maintained by an FAA certificated mechanic or repair station will be 
enabled to be utilized for compensated flight training, checking, and 
testing without restriction, even when those services are broadly 
offered to the public. In the proposed modification to Sec.  91.325(b), 
operators of primary category aircraft which are maintained by a pilot-
owner under an approved program who wish to receive flight training, 
checking, or testing are directed to Sec.  91.326(a), which would 
specify the circumstances under which persons may conduct those 
operations. That pilot-owner is prohibited from receiving compensation, 
except as provided in proposed Sec.  91.326(a). This prohibition 
precludes operation under a LODA. However, these pilot-owners are not 
precluded from exercising the privileges of proposed Sec.  91.326(a). 
For these reasons, primary category aircraft would not be eligible to 
receive a LODA.
    The FAA proposes that previously issued exemptions from Sec.  
91.325 for the purposes of flight training, checking, or

[[Page 41208]]

testing will not be renewed or extended if the proposed rule becomes 
final.
5. Light-Sport Category Special Airworthiness Certificates (Sec.  
91.327)
    The FAA proposes modifying Sec.  91.327(a)(2) to update the 
nomenclature for consistency with the other amendments proposed in this 
rulemaking. Currently, Sec.  91.327(a)(2) authorizes flight training 
for compensation or hire in a light-sport category aircraft. The FAA 
proposes to add that a person may conduct checking and testing, in 
addition to the explicit permission for flight training.\70\ These 
activities have been implicit with the language authorizing ``flight 
training,'' as flight instructors are authorized to conduct certain 
checks, and testing is a demonstration of skills learned during 
training. These activities do not pose any additional safety risk 
beyond that associated with flight training. Further, the FAA finds 
value in training and testing in the aircraft that will be regularly 
operated. The FAA acknowledges that individuals may already utilize 
Sec.  91.327(a)(2) to conduct checking and testing for compensation or 
hire. Therefore, this modification merely codifies existing implicit 
privileges. The FAA does not anticipate any substantive or practical 
change from the proposed addition of checking and testing in Sec.  
91.327(a)(2).
---------------------------------------------------------------------------

    \70\ See Sec.  61.1 definition: ``Flight training means that 
training, other than ground training, received from an authorized 
instructor in flight in an aircraft.'' Flight checking and testing 
are not flight training but rather are proficiency evaluations that 
are in most instances administered by persons other than authorized 
instructors; therefore, the FAA proposes to add these to explicitly 
permit these activities.
---------------------------------------------------------------------------

D. Flight Training, Checking, and Testing (Sec.  91.326(a))

    As discussed, currently, Sec. Sec.  91.315, 91.319, and 91.325 
prohibit operating limited category, experimental, and primary category 
aircraft carrying persons or property for compensation or hire. 
Consistent with the outcome of the Warbird litigation, these 
regulations generally prohibit flight training, checking, and testing 
when compensation is provided.
    In July 2021, the FAA established a streamlined process that 
allowed owners and flight instructors to apply for a LODA through an 
expedited process and accomplish certain flight training in 
experimental aircraft.\71\ Given the language in the regulations, 
aircraft owners seeking to receive flight training in their own 
personal-use experimental aircraft, and flight instructors providing 
that training for compensation, applied for a LODA through the 
aforementioned streamlined process.\72\
---------------------------------------------------------------------------

    \71\ See Notification of Policy for Flight Training in Certain 
Aircraft. This policy has been superseded by the 2023 NDAA.
    \72\ 86 FR 96493 (Jul. 12, 2021).
---------------------------------------------------------------------------

    However, as noted earlier, section 5604 of the 2023 NDAA contains a 
provision that removes the LODA requirement for flight training, 
testing, and checking in experimental aircraft under certain 
conditions. Flight training, checking, and testing that is broadly 
offered to the public, or that does not conform to the stipulations of 
the 2023 NDAA will continue to require a LODA.
    Therefore, the FAA proposes an exception in Sec.  91.326 to codify 
the legislation for experimental aircraft and extend what is already 
permissible for experimental aircraft by legislation, to other aircraft 
that hold certain special airworthiness certificates. Proposed Sec.  
91.326 would also more clearly outline who may receive and provide 
flight training, checking, and testing without deviation authority and 
to specify when deviation authority is required for these operations.
    Specifically, the FAA proposes adding Sec.  91.326(a) to provide an 
exception to the general limitations of operating an aircraft under 
Sec. Sec.  91.315, 91.319(a)(2), and 91.325(a) for compensation or 
hire. Section 91.326(a) would codify the legislation to allow 
authorized instructors, aircraft owners, lessors, or lessees to 
accomplish certain flight training, checking, and testing in 
experimental aircraft without obtaining a LODA. The FAA also proposes 
to include limited category and primary category aircraft in the 
proposed rule, in addition to experimental aircraft, because current 
regulations prohibit the same training, checking, and testing for 
compensation in limited and primary category aircraft, and the safety 
justification for enabling these activities applies equally. The 
proposed provision would maintain the safety benefits of using standard 
category aircraft to accomplish most flight training, checking, and 
testing while acknowledging the safety benefits of permitting pilots to 
perform these activities in the aircraft they own or regularly operate.
    The following preamble sections discuss the conditions in the 
legislation as set forth in proposed Sec.  91.326(a)(1) through (3).
1. Prohibition on Authorized Instructor Providing Both Training and 
Aircraft (Sec.  91.326(a)(1))
    To accomplish flight training, testing, and checking in an 
experimental aircraft without a LODA, section 5604(1) of the 2023 NDAA 
prohibits an authorized instructor from providing both the training and 
the aircraft when there is compensation exchanged for flight training, 
checking, or testing. This provision would be codified in Sec.  
91.326(a)(1) and extended to flight training, testing, and checking in 
limited and primary category aircraft, in addition to the experimental 
aircraft addressed in the legislation. As such, any flight training, 
checking, or testing given by an authorized instructor in the 
authorized instructor's own aircraft must either be given without any 
compensation or must be given in accordance with a LODA. The FAA notes 
that compensation can be non-monetary because compensation is the 
receipt of anything of value.\73\ For example, the FAA previously found 
that reimbursement of expenses such as fuel, oil, transportation, 
lodging, and meals, accumulation of flight time, and goodwill in the 
form of expected future economic benefit could be considered 
compensation.\74\
---------------------------------------------------------------------------

    \73\ Legal Interpretation to Joseph Kirwan (May 27, 2005) 
(Compensation ``does not require a profit, a profit motive, or the 
actual payment of funds'').
    \74\ Legal Interpretation to John W. Harrington (Oct. 23, 1997); 
Blakey v. Murray, NTSB Order No. EA-5061 (Oct. 28, 2003).
---------------------------------------------------------------------------

2. Prohibition on Broadly Offering the Aircraft as Available for Flight 
Training, Checking, or Testing (Sec.  91.326(a)(2))
    To accomplish flight training, testing, and checking in an 
experimental aircraft without a LODA, section 5604(2) of the 2023 NDAA 
prohibits any person from broadly offering the aircraft as available 
for the activity. Proposed Sec.  91.326(a)(2) would codify this 
provision and extend it to limited category aircraft and primary 
category aircraft that are pilot-owner maintained.
    Under proposed Sec.  91.326(a)(2), the persons listed in Sec.  
91.326(a) who wish to receive or provide training in one of these 
aircraft may do so without obtaining deviation authority, as long as 
they do not broadly offer or advertise services in those aircraft to 
the public. To highlight this distinction, the FAA notes that when an 
owner seeks to receive training in their own aircraft, there is no need 
for the owner to advertise or broadly offer any services to receive 
that flight training. An aircraft owner would not need to advertise 
their aircraft as available for flight training.

[[Page 41209]]

Rather, the owner would simply hire a flight instructor of their 
choosing.
    This prohibition on offering the aircraft to the public forecloses 
flights devoid of instructional or educational value and conducted 
solely for entertainment or leisure under the guise of flight training. 
The FAA underscores the importance of pilots understanding and being 
familiar with the particular systems, procedures, operating 
characteristics, and limitations of the aircraft they will regularly 
operate. Data has shown that this increased understanding and 
familiarity results in fewer accidents over time.\75\
---------------------------------------------------------------------------

    \75\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12, 
2012), available online: https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf.
---------------------------------------------------------------------------

    Importantly, advertising or broadly offering an aircraft for flight 
training can take many forms. In general, an entity or individual 
advertises its services when it communicates to the public, or a 
segment of the public, that flight training services are 
indiscriminately available to any person with whom contact is made. 
Currently, advertisers can promote material in more than just 
traditional print sources such as magazines or newspapers. Advancing 
technology allows individuals to reach consumers through electronic 
communications and internet postings. Moreover, even if an individual 
limits efforts to solicit flight training services to a class or 
segment of the general public, it may still be considered ``broadly 
offering'' its services. For example, if a person posts advertisements 
only on select social media websites, or within particular groups on a 
social media website or other internet platform, it may still be deemed 
to ``broadly offer'' its services if the advertisements express a 
willingness to provide flight training to all users within a class or 
segment of those platforms. The FAA also considers establishing a 
reputation of a willingness to perform a service broadly as contrary to 
the prohibition in the legislation and the proposed rule.\76\ The FAA 
emphasizes that any leasing scenario remains subject to the prohibition 
on offering and advertising the aircraft for use. In any case, no 
person may broadly offer the aircraft or profit from the use of the 
aircraft and any receipt of compensation is limited to the expenses 
discussed in the next section.
---------------------------------------------------------------------------

    \76\ AC 61-142, Sharing Aircraft Operating Expenses in 
Accordance with 14 CFR 61.113(c), (2020), states,). ``Physically 
holding out, without advertising, where the pilot gains a reputation 
of serving all, is sufficient to constitute an offer to carry all 
customers. There are many means by which physically holding out can 
take place, e.g., personal solicitation and course of conduct. A 
pilot's course of conduct can be sufficient to find that there has 
been a holding out of service to the public because the course of 
conduct can indicate a willingness to serve all who apply for 
service. The actions or conduct used to develop the reputation would 
be considered to be holding out.''
---------------------------------------------------------------------------

    In support of this prohibition on advertising, the FAA maintains 
that when aviation operations are offered broadly to the public for 
compensation, the public expects, and the FAA demands, a higher level 
of safety. This expectation is evidenced by the requirements that 
charter operators comply with part 135, scheduled airlines comply with 
part 121, and flight schools utilize standard category aircraft for 
flight training unless they possess a LODA. Limited category, 
experimental, and primary category aircraft do not meet the same 
certification requirements as standard category aircraft. Therefore, 
additional restrictions are necessary to maintain the public's 
expectation of safety.
    theirWhile the FAA places great value on the need for pilots to 
understand and be familiar with the particular systems, procedures, 
operating characteristics and limitations of the aircraft they will 
operate, the FAA must also ensure public safety for services broadly 
offered. Paragraph (a)(2) seeks to balance these interests by imposing 
restrictions for flight training only outside the scope of personal 
use. Beyond this, flight training offered to the public is broadly 
available in standard category aircraft or, if deemed necessary, in a 
limited category or experimental aircraft in accordance with a LODA 
under proposed Sec.  91.326(b), discussed later in this preamble.
3. Compensation for Use of the Aircraft (Sec.  91.326(a)(3))
    To accomplish flight training, testing, and checking in an 
experimental aircraft without a LODA, section 5604(3) of the 2023 NDAA 
limits the type of compensation that may be received for the use of the 
aircraft. Proposed Sec.  91.326(b) would codify this provision and 
extend it to limited category, experimental, or primary category 
aircraft. Under the proposed rule (and consistent with the legislative 
provision for experimental aircraft), no person would be permitted to 
receive compensation for use of the aircraft for a specific flight 
during which flight training, checking, or testing was accomplished, 
other than expenses for owning, operating, and maintaining the 
aircraft. Compensation for the use of the aircraft that yields a profit 
for the operator is prohibited under the legislation and the proposed 
rule. The FAA makes this distinction to foreclose the use of aircraft 
holding certain special airworthiness certificates for profit without 
the safety mitigations provided by a LODA.
    The FAA recognizes that operating an aircraft naturally incurs 
expenses, such as ongoing maintenance of the aircraft, fuel used during 
a flight, and other expenses associated with aircraft ownership. The 
FAA notes that the legislation ties the compensation to the costs 
associated with the specific flight.
    When money is exchanged for transportation, the public expects, and 
the FAA demands, a higher level of safety for the flying public.\77\ 
Accordingly, operations for compensation involving aircraft holding 
special airworthiness certificates require additional regulations to 
ensure public safety. The use of standard category aircraft remains 
broadly available for those members of the public seeking to receive 
flight training.
---------------------------------------------------------------------------

    \77\ See legal interpretation for General Aviation Manufacturers 
Association, addressed to Mr. Bunce, dated Nov. 19, 2008.
---------------------------------------------------------------------------

    Consistent with these principles, a person may operate for the 
purpose of flight training in a limited category, experimental, or 
primary category aircraft without a LODA only when no compensation is 
exchanged for the use of the aircraft, other than expenses for owning, 
operating, and maintaining the aircraft.\78\ Operations involving 
compensation for the use of the aircraft that yields a profit will 
continue to require a LODA.
---------------------------------------------------------------------------

    \78\ See proposed Sec.  91.326(a)(1) which specifies that the 
authorized instructor cannot provide both the training and the 
aircraft without a LODA.
---------------------------------------------------------------------------

E. LODA Framework (Sec.  91.326(b) and (c))

    While the FAA maintains that, in general, limited category, 
experimental, and primary category aircraft should not be broadly 
offered for flight training, checking, and testing, the FAA finds that 
there is certain specialized training that may be effectively and 
safely accomplished in these aircraft under certain conditions. 
Currently, persons seeking to offer this type of flight training for 
compensation or hire in limited and primary category aircraft are 
required to obtain a grant of exemption.\79\ By contrast, persons 
seeking to offer this type of flight training in experimental aircraft 
may apply for a LODA under Sec.  91.319(h).
---------------------------------------------------------------------------

    \79\ See Federal Register Docket FAA-2013-0506 and FAA-2017-0942 
for examples of grants of exemption from Sec.  91.315 for the 
purpose of flight training in limited category aircraft issued to 
Delaware Aviation Museum Foundation and Stallion 51 Corporation, 
respectively.
---------------------------------------------------------------------------

    In Sec.  91.326(b), the FAA proposes that any person who wants to 
conduct flight

[[Page 41210]]

training, checking, or testing in limited category and experimental 
aircraft \80\ outside the restrictions and limitations of proposed 
Sec.  91.326(a) may apply for deviation authority. Flight training, 
checking, or testing operations that would require a LODA include, but 
are not limited to, receiving compensation for flight training while 
also receiving compensation for the use of the aircraft and/or 
advertising or broadly offering the use of an aircraft for flight 
training, checking, or testing. For example, under the proposed 
framework, a person who owns an aircraft holding an experimental or 
limited category special airworthiness certificate, such as a North 
American B-25 or Curtiss P-40, would be required to hold a LODA to 
offer transition or proficiency training to the public.
---------------------------------------------------------------------------

    \80\ The FAA notes that certain primary category aircraft would 
be excluded from Sec.  91.326(c) because proposed Sec.  91.325(c) 
would make a LODA unnecessary, as that rule would explicitly enable 
flight training, checking, and testing without the need for 
deviation authority.
---------------------------------------------------------------------------

    The FAA first introduced deviation authority in a 2004 final rule 
\81\ to allow for training that was, at that time, only available 
through exemption. Pursuant to Sec.  91.319(a)(2), the 2004 final rule 
prohibited carrying persons or property in experimental aircraft for 
compensation or hire. As flight training is considered to be carrying 
persons for compensation or hire, the deviation authority offered in 
the 2004 final rule allowed for issuance of a LODA in lieu of an 
exemption for flight training in experimental aircraft.
---------------------------------------------------------------------------

    \81\ Certification of Aircraft and Airmen for the Operation of 
Light-Sport Aircraft, 69 FR 44771 (Jul. 27, 2004). In the final 
rule, the FAA amended Sec.  91.319 by adding Sec.  91.319(h) to 
allow deviation authority from the provisions of Sec.  91.319(a) for 
the purpose of conducting flight training.
---------------------------------------------------------------------------

    NTSB Safety Recommendation A-12-035 advises the FAA to develop and 
publish an advisory circular, or similar guidance, for the issuance of 
a Letter of Deviation Authority to conduct flight instruction in an 
experimental aircraft, to include sample documentation and sample 
training materials.\82\ This recommendation was in response to the 
NTSB's finding that providing pilots of experimental amateur-built 
aircraft with better access to training would enhance flight safety. In 
response to NTSB Safety Recommendation A-12-035, the FAA is proposing 
LODA framework to provide the FAA with an opportunity to evaluate the 
operation and impose any additional pilot qualifications and 
maintenance requirements necessary for safety when offering services to 
the public. Although Sec.  91.319(h) authorizes the FAA to issue 
deviation authority for the purpose of flight training in experimental 
aircraft, the FAA also recognizes that, in certain circumstances, there 
is value in flight training in limited category aircraft. For that 
reason, the FAA is proposing to remove the LODA provision in Sec.  
91.319(h) and incorporate, expand, and clarify the LODA framework in 
proposed Sec.  91.326(b) to apply to both limited category and 
experimental aircraft. The FAA has drafted an advisory circular 
describing the LODA application process and identifying the factors 
that the FAA will consider in determining whether a LODA should be 
issued. The advisory circular is available in the docket for this 
rulemaking for public comment concurrently with publication of this 
NPRM. In a 2012 safety recommendation report referencing 
recommendations A-12-28 through -39, the NTSB concluded that 
experimental amateur-built aircraft accidents involving loss of 
aircraft control could be reduced if more pilots received transition 
training.\83\ Since promulgation of the 2004 final rule, FAA and 
industry research indicates that the training conducted under Sec.  
91.319(h) deviation authority continues to reduce accidents in 
experimental aircraft when conducted in accordance with the conditions 
and limitations of that deviation authority. Therefore, expanding this 
deviation authority to permit some flight training, checking, and 
testing in limited category aircraft is also likely to increase safety 
and reduce accidents in those aircraft because it would provide a 
greater incentive to operators of limited category aircraft to seek out 
and complete such training.
---------------------------------------------------------------------------

    \82\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12, 
2012), available online: https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf.
    \83\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12, 
2012), available online: https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf.
---------------------------------------------------------------------------

    The FAA anticipates that using a single rule to cover deviation 
authority for limited category and experimental aircraft will promote a 
streamlined process and relieve the burden on the public to apply for 
an exemption for limited category aircraft. Additionally, incorporating 
the LODA framework from Sec.  91.319 into proposed Sec.  91.326(b) 
would make the application process consistent for limited category and 
experimental aircraft. The proposed Sec.  91.326(b) framework would 
apply to owners, operators, and training providers who broadly offer, 
or receive compensation for, the use of certain aircraft for 
specialized flight training, checking, and testing.
    Flight training, checking, or testing in limited category aircraft 
are currently only available by grant of exemption from the 
regulations. The FAA finds this burdensome and labor intensive not only 
for the agency but also the persons offering this specialized training. 
Since the 2004 final rule, Sec.  91.319 has provided this training 
through deviation authority, while maintaining an equivalent level of 
safety. As a result, the FAA concludes that implementing the LODA 
framework on a broader scale will similarly support public safety, 
reduce administrative costs and burdens, and increase operator 
efficiency.
    In further support of codifying a consolidated LODA framework in 
Sec.  91.326(b), the FAA emphasizes the safe and successful use of 
LODAs under Sec.  91.319. Under Sec.  91.319(h), the FAA has 
historically granted LODAs for specialized training in experimental 
aircraft that could not otherwise be obtained in aircraft holding 
standard airworthiness certificates, e.g., model-specific training and 
jet upset recovery training. These LODAs have been issued to operators 
who demonstrate that their flight instructors, trainees, and aircraft 
meet specific additional requirements above those generally required to 
operate experimental aircraft. As currently used under Sec.  91.319, 
LODAs increase public safety because they support minimum pilot 
qualifications, structured training curricula, and additional aircraft 
maintenance inspection requirements. Issuance of a LODA enables the FAA 
to provide oversight of training and maintenance of the aircraft and 
place certain restrictions on those who participate. The FAA finds it 
necessary to place these restrictions within the LODA to ensure safety 
to the public paying for training in these aircraft who may not be 
familiar with aircraft holding special airworthiness certificates. 
Evaluation of the training program ensures a structured and complete 
training syllabus. The operator and participant must comply with 
certain conditions and limitations issued with a LODA. Each operator 
must use aircraft-specific flight and ground training curricula. The 
operator must keep a record of the training given for a period of three 
years. Persons providing training, checking, and testing must be 
authorized under part 61 or part 183, as applicable, for the specific 
operation and must be qualified in the aircraft to be used. These 
parameters and oversight requirements ensure the safety of the

[[Page 41211]]

public during these activities and operations.
1. Granting, Amending, and Cancelling a LODA (Sec.  91.326(b)(1) and 
(2))
    The FAA proposes to add Sec.  91.326(b)(1) and (2) to prescribe the 
manner in which the FAA may issue, cancel, and amend LODAs. 
Particularly, Sec.  91.326(b)(1) clarifies that operators would be 
granted relief from Sec. Sec.  91.315 or 91.319(a) through a LODA. In 
offering this deviation authority in the form of a letter, the FAA 
intends to model the proposed deviation authority after the current 
deviation authority provided in Sec.  91.319(h) that would be 
superseded by proposed Sec.  91.326(b) if adopted.
    In addition, the FAA proposes to add Sec.  91.326(b)(2) to enable 
the FAA to cancel or amend a LODA if it determines that the deviation 
holder has failed to comply with the conditions and limitations or at 
any time if the Administrator determines that the deviation is no 
longer necessary or in the interest of safety. For example, the FAA 
would be able to cancel a LODA for non-compliance with the terms and 
conditions of the LODA. Likewise, a LODA could be cancelled when a 
significant number of identical aircraft holding standard airworthiness 
certificates become available. Once an aircraft is certificated in the 
standard category and significant numbers are available, the need for 
the LODA may be unnecessary.
    Under proposed Sec.  91.326(b)(2), a LODA could also be amended for 
safety concerns. For example, the FAA may, when necessary, revise the 
conditions and limitations or require corrective action to adequately 
mitigate safety concerns and risk factors as they become known. In 
conclusion, proposed Sec.  91.326(b)(2) affords the FAA flexibility to 
modify or cancel the LODA, as needed, based on changing circumstances.
2. Requirements for a LODA (Sec.  91.326(b)(3))
    In Sec.  91.326(b)(3), the FAA proposes to codify a timeline for 
operators to submit LODA applications, the form and manner requirements 
for submission, and the information that the applicant should provide. 
As proposed, an applicant must submit the request for a LODA in a form 
and manner acceptable to the Administrator. As set forth in the draft 
LODA AC, Application and Issuance Process for a Letter of Deviation 
Authority Issued in Accordance with Part 91, Sec.  91.326, the form and 
manner of an application submission may include email, fax, regular 
mail, or in-person delivery. Consistent with the current application 
process under Sec.  91.319(h), applicants may apply for a LODA by 
contacting the Flight Standards District Office (FSDO) nearest their 
primary place of business. FSDO personnel can provide the applicant 
with specific instructions on how to present the LODA request to that 
FSDO and provide the applicant with reference material and supporting 
information.\84\ A draft of the advisory circular has been published 
for comment concurrently with this NPRM and is available in the 
rulemaking docket.
---------------------------------------------------------------------------

    \84\ FAA Order 8900.1, Vol. 3, Chpt. 11, Sec. 1, Use of Aircraft 
Issued Experimental Certificates in Flight Training for Compensation 
or Hire, provides information about the issuance of a LODA for 
conducting flight training under Sec.  91.319(h). Additionally, the 
FAA is producing a new advisory circular that would provide 
information, guidance, and recommendations on the application and 
issuance process for obtaining a LODA to operate a limited category, 
primary category, or experimental aircraft for compensation or hire 
while providing flight training, checking, and testing.
---------------------------------------------------------------------------

    The proposed regulation would also require that the application 
package be submitted at least 60 days before the date of intended 
operations. The 60-day requirement is proposed to allow the 
Administrator adequate time to review stakeholder applications and 
supporting documents. The current Sec.  91.319(h) LODA process has 
demonstrated that this is a reasonable time allowance. The FAA has 
determined a need for a 60-day review period to ensure the 
effectiveness of the LODA and the proper conditions specified within 
each LODA. The FAA notes that not all LODA training syllabi or 
justifications will be identical. Therefore, the 60-day review period 
is intended to provide sufficient time to assess each unique 
application on a case-by-case basis.\85\
---------------------------------------------------------------------------

    \85\ For those operators who currently hold an exemption or a 
LODA, section IV(E)(6) of this NPRM explains how operators would 
transition to a LODA issued under the proposed rule.
---------------------------------------------------------------------------

    Proposed Sec.  91.326(b)(3)(i) through (ix) enumerate the items an 
applicant would be required to include in their request for deviation 
authority. The FAA proposes to require this information from the 
applicant to evaluate the application to determine whether granting the 
request for a LODA would be in the interest of safety. Information 
required by this proposed section includes, for example, in Sec.  
91.326(b)(3)(ii), the name and contact information of the individual 
with ultimate responsibility for operations authorized under the LODA. 
Likewise, applicants must include a detailed training program 
demonstrating that the proposed activities would meet intended training 
objectives. The training program description may include a training 
overview, a syllabus, minimum instructor qualifications, prerequisites 
for persons receiving training, a description of teaching aids, special 
equipment, simulators, and flight training devices, as applicable, and 
a method for recordkeeping.\86\ The FAA proposes to request this 
training program information from applicants to ensure that, if 
granted, the requested LODA would solely be used for appropriate, 
limited training purposes, which would in turn support safe operation 
of the aircraft.
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    \86\ Additional information describing the items applicants are 
encouraged to submit for a complete LODA application is provided in 
the LODA advisory circular, which has been placed in the docket for 
this rulemaking.
---------------------------------------------------------------------------

    Additionally, the FAA proposes Sec.  91.326(b)(3)(viii), which 
specifies additional information required to be submitted by LODA 
applicants when formation and aerobatic training, or training leading 
to the issuance of an endorsement is requested. The information 
required to be submitted for this purpose would describe a process by 
which a LODA holder will identify whether a trainee has a specific need 
for that training. The FAA is proposing to require LODA applicants to 
provide additional reasoning for conducting formation or aerobatic 
training, or training leading to the issuance of an endorsement because 
those types of training, generally, can be conducted in standard 
category aircraft. Because the FAA encourages training to be conducted 
in the aircraft which a trainee would most often operate, the 
additional explanation would enable the agency to determine whether 
granting the applicant's request for a LODA is necessary in the 
interest of safety. Persons with a specific need include, for example, 
aircraft builders, purchasers, owners, test pilots, and qualified 
additional pilots under AC 90-116. The aircraft used for training must 
have similar handling qualities and flight characteristics to the 
aircraft being built or flown by the trainee to be eligible. These 
persons will have regular access to substantially similar aircraft and 
would benefit from the additional training, as training can expand 
pilot skills that are transferrable to the aircraft they will regularly 
fly. Persons without a specific need can receive this training in an 
aircraft holding a standard airworthiness certificate.
3. Limitations in the LODA (Sec.  91.326(b)(4))
    Currently, under Sec.  91.319(i), the Administrator may prescribe 
additional limitations that the Administrator finds

[[Page 41212]]

necessary for aircraft holding experimental airworthiness certificates. 
The conditions and limitations the FAA places in LODAs under the 
discretion provided in Sec.  91.319(i) allow the FAA to authorize 
appropriate training activity not otherwise permitted by regulation 
while ensuring the safety of the NAS and persons and property on the 
ground. Historically, the FAA has included a list of general conditions 
and limitations related to aircraft inspection and maintenance 
requirements, airman qualifications, operating limitations, and 
training requirements in all LODAs authorizing flight training. For 
example, current LODAs contain a limitation that requires the operator 
to keep a record of the training given for a period of three years. 
This condition ensures that the FAA may conduct appropriate safety 
oversight of operations conducted under the LODA. Likewise, given the 
unique risks posed by aircraft with ejection seats, LODAs have 
contained a requirement that trainees must complete an acceptable 
course of ejection seat training before training in an aircraft with an 
ejection seat. The FAA also includes conditions and limitations for 
trainees and flight instructors with regard to minimum qualifications 
such as certificate, ratings, and endorsements even when the trainee or 
flight instructor is not acting as PIC of the flight. LODA holders must 
comply with the conditions and limitations imposed under Sec.  91.319 
while conducting activity under the LODA unless the FAA provides relief 
from the conditions and limitations in the LODA.
    The FAA proposes to add a provision similar to Sec.  91.319(i) in 
proposed Sec.  91.326(b)(4) to allow the Administrator to continue to 
prescribe additional conditions and limitations in LODAs for 
experimental aircraft and extend that allowance to LODAs issued for 
training, testing, and checking in limited category aircraft when 
necessary for safety. The FAA would continue to impose these safety 
conditions and limitations on future training, checking, and testing 
conducted under LODAs issued under proposed Sec.  91.326(b). The FAA 
reiterates that, when training, checking, and testing can be 
successfully accomplished in a standard category aircraft, a LODA to 
conduct such training in aircraft with special airworthiness 
certificates is not appropriate. Where training, checking, and testing 
is allowed in experimental and limited category aircraft, the FAA must 
have a means to ensure that safety is maintained given the nature of 
the aircraft used. The full list of conditions and limitations is 
further described in the LODA Advisory Circular (AC), Table 4, 
``Additional Limitations,'' which has been placed in the docket for 
this rulemaking. The FAA is proposing slight modifications to the 
standard conditions and limitations imposed under Sec.  91.319(i) and 
specifically requests comment on all of the conditions and limitations 
set forth in Table 4 of the AC.
4. Persons Permitted on Board During Operations Under a LODA (Sec.  
91.326(b)(5))
    The FAA proposes to add Sec.  91.326(b)(5) to limit the persons 
permitted to be on board an aircraft during operations under a LODA. 
The airworthiness certification standards for aircraft that hold 
special airworthiness certificates do not rise to the level of 
demonstrated safety and reliability of those holding standard 
airworthiness certificates. Besides the instructor, designated examiner 
and the person receiving the training, checking, or testing, only 
persons deemed essential to the safe operation of the aircraft would be 
permitted to be carried on board the aircraft. Notably, a pilot who 
holds a temporary letter of authorization (LOA) to act as PIC in an 
experimental aircraft who also holds a flight instructor certificate is 
generally not authorized to conduct flight training under a LODA. 
Temporary LOAs are issued to a pilot to act as PIC in unique, highly 
specific circumstances, such as in the case of a first flight of a new 
or first-of-a-kind aircraft. Temporary LOAs are not issued to flight 
instructors for the purpose of flight training under a LODA.
    In addition to authorized instructors, designated examiners, and 
those receiving the flight training or being checked or tested, the FAA 
proposes to permit persons essential for the safe operation of the 
aircraft to be on board during operations under a LODA. The FAA notes 
that, to be conducted effectively, flight training, checking, and 
testing operations do not require persons besides authorized flight 
instructors, designated examiners, those receiving flight training or 
being checked or tested, and other persons essential for the safe 
operation of the aircraft to be on board. The addition of persons not 
directly related to flight training, testing, checking, or operation of 
the aircraft may create unnecessary distraction.
    However, some aircraft holding special airworthiness certificates 
may have unique characteristics or design features that necessitate 
additional persons for safety. For example, operators of certain 
vintage, multi-engine aircraft, like the North American B-25 or Boeing 
B-17, choose to utilize persons to perform certain functions related to 
aircraft safety. These functions may include observing engines to 
monitor for smoke/malfunction, observing engine instruments to monitor 
for anomalies, or operation of mechanical systems that may not be in 
easy reach of the flightcrew. Importantly, the determination of whether 
a person is essential for safety would be determined based on several 
factors. The FAA would consider whether these persons are trained and 
designated by the operator for these functions and are not members of 
the general public. The FAA would be unlikely to consider persons 
unaffiliated with the operator and designated to perform essential 
functions ``on the spot'' to be genuinely performing a duty essential 
to safety. This precludes an operator from assigning ``essential 
functions'' to persons who do not normally participate in the operation 
of the aircraft. For example, a non-pilot friend in the back seat given 
a nominal task or observing training could be construed as a ride for 
hire which is not contemplated by the proposed regulation. The FAA will 
also consider whether the operator routinely fills a particular 
position to determine if it is essential. For example, if an operator 
routinely utilizes a crew complement of two pilots, but one day decides 
to put a third person on board to ``monitor engines'', the 
Administrator would likely not consider that additional person to be 
essential. However, if an operator routinely utilizes a trained crew 
chief who is present because there is emergency mechanical equipment 
beyond the reach of the flightcrew, like an emergency gear extension 
crank, the Administrator may consider that person to be essential for 
safety. Likewise, additional person(s) would not be allowed to be 
present solely to receive transportation or for recreational purposes.
    The specification of the persons permitted to be carried on board 
the aircraft in the proposed Sec.  91.326(b)(5) is meant to provide 
clarity to those applying for a LODA under Sec.  91.326. In this 
regard, the list of recognized persons is exclusive. Outside of the 
personnel delineated in the proposed Sec.  91.326(b)(5), the FAA does 
not contemplate the additional carriage of persons on board the 
aircraft even with the issuance of a LODA. Such activity, therefore, 
would remain prohibited under this proposed rule.

[[Page 41213]]

5. Types of Training (Sec.  91.326(b)(6))
    The FAA proposes to limit the types of training, testing, and 
checking that may be authorized under the proposed deviation authority. 
Currently, LODAs are issued for certain specialized types of 
experimental aircraft training. Aircraft holding special airworthiness 
certificates are not designed, built, or maintained to the same 
standard as those holding standard airworthiness certificates. 
Therefore, the FAA proposes to limit the availability of the use of 
experimental and limited category aircraft in flight training offered 
to the public by limiting the types of training available.
    The types of training currently available under a LODA are limited 
in nature and generally contemplate only specialized training that 
cannot be accomplished in aircraft holding standard airworthiness 
certificates. For example, private pilot certification training and 
testing is not available for LODA training, as this can be accomplished 
in aircraft holding standard airworthiness certificates. Conversely, 
jet upset recovery training is available for LODA training because 
there are no standard category jet aircraft with limitations that allow 
for aerobatic flight.
    Except in specific circumstances, LODAs should not be issued to 
permit flight training toward the issuance of a pilot certificate, 
rating, or operating privilege that can be obtained through training 
and testing in an aircraft with a standard category airworthiness 
certificate. For example, syllabi developed solely for aerobatic 
training or flight training that leads to the issuance of an 
endorsement (e.g., tailwheel or pressurized aircraft, or a complex or 
high performance airplane) would not be considered appropriate for 
issuance of a LODA. In addition, no demonstration or discovery flights 
would be authorized. Demonstration flights, discovery flights, sales 
demonstrations, introductory flights, experiential flights, and other 
flights not related to the flight training syllabus are not authorized 
under a LODA.
    On the contrary, a LODA may be requested to facilitate specialized 
training necessary to gain skills and abilities to safely operate 
specific aircraft. In addition, a LODA may be used to receive training 
that cannot otherwise be conducted in aircraft holding a standard 
airworthiness certificate. For example, an applicant may utilize a LODA 
to participate in model-specific transition training. Similarly, an 
applicant may request a LODA to conduct training and testing that leads 
to the issuance of a specific experimental aircraft authorization, 
limited category type rating, rotorcraft gyroplane training at all 
levels, a sport pilot certificate, or sport pilot operating privilege.
    The FAA includes a description of each type of training 
contemplated under this section in the draft LODA AC placed in the 
docket to this rulemaking. The FAA welcomes public comment on the types 
of training authorized under a LODA and the accompanying safety 
rationale in response to publication of the draft LODA AC.
    The FAA notes that LODAs are intended to bolster specialized 
training in aircraft holding certain special airworthiness certificates 
that cannot otherwise be accomplished in aircraft holding standard 
airworthiness certificates. In support of this intent, as noted, LODAs 
will not be issued exclusively to permit aerobatic or formation 
training or to permit training for the sole purpose of issuance of an 
endorsement. However, there are certain circumstances which may warrant 
aerobatic training, formation training, or issuance of an endorsement 
as part of a broader training program. This type of training will only 
be available to trainees who have a specific need to receive such 
training. The AC published concurrently with this NPRM provides greater 
detail on when a person may be considered to have a ``specific need'' 
to receive this type of training, and the other corresponding 
requirements for airmen certification and flight characteristics.
6. Status of Current LODAs (Sec.  91.326(c))
    The FAA proposes to add Sec.  91.326(c) to provide clarity to those 
who hold a LODA issued under Sec.  91.319(h) at the time of publication 
of the final rule if the proposal is adopted. In Sec.  91.326(c)(1) and 
(2), the FAA proposes that any person who holds a LODA which is still 
active as of the date of the final rule (should this proposal be 
adopted) would be permitted to continue to operate under that LODA 
subject to its terms and conditions for 24 months after the effective 
date of the final rule. This proposed language would ensure that LODA 
holders continue to comply with the conditions and limitations under 
which their LODA was issued between the publication of a final rule and 
the termination of their LODAs granted under Sec.  91.319(h). The FAA 
proposes to permit Sec.  91.319(h) LODA holders to continue operating 
under those LODAs for 24 months after the effective date of a final 
rule because it would ensure those LODA holders have adequate time to 
apply for a new LODA under the Sec.  91.326(b) framework. In Sec.  
91.326(c)(3), the FAA proposes to add that any existing LODAs issued 
under Sec.  91.319(h) may be cancelled or amended at any time, as is 
currently provided for under Sec.  91.319(h). Permitting those existing 
LODAs to be cancelled or amended at any time would enable the FAA to 
ensure the continuing safety of operations permitted under the existing 
LODAs. Finally, in Sec.  91.326(c)(4), the FAA proposes to terminate 
all preexisting LODAs issued under Sec.  91.319(h) 24 months after the 
effective date of a final rule. Current exemption holders would instead 
apply for a LODA under proposed Sec.  91.326(b). Some operators have 
been granted exemptions in limited category aircraft for the purpose of 
offering flight training to the public. Except for exemptions issued 
for Living History Flight Experiences (LHFE), exemptions from Sec.  
91.315 issued for the purpose of flight training in limited category 
aircraft will not be renewed or extended. LHFE exemptions are granted 
for the purpose of providing flight experiences in certain 
historically-significant aircraft. These LHFE exemptions will be 
unaffected by this proposed rulemaking.
    In anticipation of the initial volume of applications, the FAA 
encourages applicants to submit their LODA applications at least 180 
days prior to the 24-month expiration date. Although present LODA 
holders are not guaranteed deviation authority under this new 
provision, this 180 days would help current LODA holders ensure that 
there is no gap in LODA coverage between their existing LODA 
terminating and their new LODA under Sec.  91.326(b), should it be 
issued. In addition, the FAA notes that currently, LODAs are no longer 
required for owners and operators of experimental aircraft who comply 
with section 5604 of the 2023 NDAA (proposed to be codified in Sec.  
91.326(a)).

V. Regulatory Notices and Analyses

    Federal agencies consider impacts of regulatory actions under a 
variety of executive orders and other requirements. First, Executive 
Order 12866 and Executive Order 13563, as amended by Executive Order 
14094 (``Modernizing Regulatory Review''), direct that each Federal 
agency shall propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify the 
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) 
requires agencies to analyze the economic impact of regulatory changes

[[Page 41214]]

on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) 
prohibits agencies from setting standards that create unnecessary 
obstacles to the foreign commerce of the United States. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies 
to prepare a written assessment of the costs, benefits and other 
effects of proposed or final rules that include a Federal mandate that 
may result in the expenditure by State, local, and tribal governments, 
in the aggregate, or by the private sector, of $100 million or more 
(adjusted annually for inflation) in any one year. The current 
threshold after adjustment for inflation is $165 million, using the 
most current (2021) Implicit Price Deflator for the Gross Domestic 
Product.
    In conducting these analyses, the FAA has determined that this 
rule: (1) will result in benefits that justify costs; (2) is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866; (3) is not ``significant'' as defined in DOT's 
Regulatory Policy and Procedures; (4) will not have a significant 
economic impact on a substantial number of small entities; (5) will not 
create unnecessary obstacles to the foreign commerce of the United 
States; and (6) will not impose an unfunded mandate on State, local, or 
tribal governments, or on the private sector.

A. Regulatory Evaluation

1. Summary
    The FAA analyzed the costs and benefits for the provisions related 
to PAO and the provisions related to training, testing and checking in 
certain aircraft with special airworthiness certificates separately. 
The provisions related to PAO impose no new costs and the FAA expects 
the proposal will reduce the costs for pilots conducting PAO to 
maintain their civil certificates and ratings.\87\ The provisions 
related to training, testing and checking impose approximately $100,000 
in total one-time costs (undiscounted) over a period of two years. 
Roughly half of these costs stem from the requirement for the current 
approximately 180 LODA holders who broadly offer certain aircraft with 
special airworthiness certificates for training to reapply within two 
years of the effective date of a final rule, if this proposed rule is 
adopted. The other half of the costs include the time costs to the FAA 
which must process these applications over the first two years. 
However, the FAA expects the cost savings from the streamlined 
regulatory framework, and the safety benefits from greater access to 
specialized training in aircraft with certain special airworthiness 
certificates, to exceed the initial costs. Overall, the FAA concluded 
that this proposal would maintain and promote safety with minimal 
impact on cost.
---------------------------------------------------------------------------

    \87\ The FAA does not maintain counts of pilots who fly PAO for 
federal, state and local governments and there is insufficient data 
for the FAA to estimate the number of pilots affected by the PAO 
proposal. See ``How to Become a Government Pilot'' in Flying 
Magazine by James Wynbrandt, Dec.13, 2017. Available at: https://www.flyingmag.com/how-to-become-government-pilot/. Last accessed 
Jul. 22, 2022.
---------------------------------------------------------------------------

2. Logging Flight Time in Public Aircraft Operations
    The FAA requires pilots to log flight time used to meet training, 
aeronautical experience and recent flight experience requirements for 
civil pilot certificates and ratings.\88\ Currently, logging of flight 
time in aircraft used for PAO is limited to official law enforcement 
flights. The FAA proposes to extend logging pilot flight time in PAO 
not only to forestry and fire protection services, as directed by 
section 517 of the FAA Reauthorization Act of 2018, but also to any PAO 
including operations involving national defense, intelligence missions, 
search and rescue, aeronautical research and biological or geological 
resource management. The FAA expects the rule to lower the cost for 
pilots conducting PAO to maintain their civil certificates and ratings. 
Although pilots conduct PAO outside of FAA civil certification and 
certain safety oversight regulations, each government entity may 
maintain its own certification system and requirements for pilots. For 
many government entities, this includes adopting the same standards as 
those codified in 14 CFR to ensure safety and comply with liability 
insurance requirements.\89\ For example, the California Department of 
Forestry and Fire Protection (CAL FIRE), a state agency that is the 
largest firefighting air force in the world \90\ with over 50 aircraft, 
requires its fixed-wing and helicopter pilots to maintain FAA 
commercial pilot certificates, various FAA ratings, and recent flight 
experience requirements.\91\ Additionally, the CAL FIRE 8300 manual 
contains specific references and obligations for compliance with FAA 
regulatory requirements applicable to civil operations.\92\
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    \88\ 14 CFR 61.51(a) does not require pilots to log all flight 
time. Pilots are only required to record aeronautical experience 
used to obtain civil certificates and ratings and meet recent flight 
experience requirements.
    \89\ Wynbrandt, James W. ``How to Become an Airborne Law 
Enforcement Pilot'' in Flying, Dec. 18, 2017. Accessed Feb. 8, 2022, 
https://www.flyingmag.com/how-to-become-an-airborne-law-enforcement-
pilot/
#:~:text=Most%20state%20and%20municipal%20ALE,aren't%20hard%20to%20fi
nd.
    \90\ Joiner, Stephen. ``The Pilots Who Fight California's 
Wildfires'' Smithsonian, August 2019. Accessed Feb. 15, 2022, 
https://www.smithsonianmag.com/air-space-magazine/wildfire-wars-180972602/.
    \91\ CAL Fire Petition for Exemption 14 CFR 61.51(j), Nov. 23, 
2020.
    \92\ CAL Fire Petition for Exemption 14 CFR 61.51(j), Nov. 23, 
2020.
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    Allowing pilots to credit their PAO flight time would enable PAO 
pilots to meet FAA flight experience and recency requirements in the 
course of their duties, thereby avoiding costs required to accrue 
flight time and recent experience in civil aircraft operations. These 
avoided costs could include avoided travel time, flight time, fuel 
costs, and costs for use of a civil aircraft. Additionally, the FAA 
finds that recording PAO flight time will not impose additional costs 
because PAO pilots already record their flight time to meet the safety 
and insurance requirements of their employers. For this reason, the FAA 
proposes to allow pilots to retroactively credit PAO flight time. The 
FAA concludes that the proposal to allow pilots to record and credit 
PAO flight time will not adversely affect safety, impose any additional 
costs, or pose novel policy or legal issues.
3. Flight Training, Testing, or Checking for Compensation in Certain 
Aircraft With Special Airworthiness Certificates
    Consistent with the 2023 NDAA, the proposal allows owners or 
operators of experimental aircraft to receive training, testing, and 
checking in their aircraft without a LODA, in certain circumstances. 
The proposed rule would extend the provision to training, testing, and 
checking in limited category and primary category aircraft. 
Additionally, the proposal moves the current LODA process for 
experimental aircraft in Sec.  91.319(h) to proposed Sec.  91.326(b) 
and extends the LODA process to include limited category and 
experimental light sport aircraft. The goal is to promote safety by 
making it simpler for pilots to receive elective or specialized 
training relevant to aircraft they regularly fly, while also ensuring 
effective training and maintenance standards in certain aircraft with 
special airworthiness certificates broadly offered for training, 
checking or testing, for compensation.
    Overall, the FAA expects the training proposal to increase safety, 
clarify and simplify regulatory requirements, reduce compliance costs 
for operators, administrative costs for the FAA and

[[Page 41215]]

time and travel costs for pilots seeking elective or specialized 
training, testing, or checking. The FAA evaluated costs and benefits 
against the baseline established by the ``Notification of Policy for 
Flight Training in Certain Aircraft,'' published in the Federal 
Register July 12, 2021,\93\ as well as the recently passed 2023 NDAA, 
and concluded the cost impacts are modest and the proposal poses no 
novel legal or policy issues.
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    \93\ 86 FR 36493 (Jul. 12, 2021), ``Notification of Policy for 
Flight Training in Certain Aircraft.'' The FAA published this policy 
statement to establish simplified procedures for owners and 
operators of certain aircraft with special airworthiness 
certificates to obtain prior approval from the FAA for training in 
their own aircraft. The policy clarification also reaffirmed the 
need for certain operators to obtain prior approval from the FAA in 
the form of a LODA or exemption.
---------------------------------------------------------------------------

4. Cost Savings
    The FAA expects the proposal to generate cost-savings for owners or 
operators of certain aircraft with special airworthiness certificates 
who seek specialized training, testing, or checking in aircraft they 
own or regularly operate. Under current rules, owners or operators of 
limited and primary category aircraft must petition the FAA for an 
exemption.\94\ The recently passed 2023 NDAA eliminated the LODA 
requirement for owners and operators of experimental aircraft receiving 
training in their own aircraft. The proposal in Sec.  91.326(a) would 
codify the legislation with regard to LODAs for experimental aircraft 
and eliminate the LODA requirement for owners and operators who receive 
training, testing, or checking in their aircraft and pay compensation 
for instruction. The elimination of the exemption requirements would 
result in time savings for owners and operators who would no longer 
need to apply for an exemption. Likewise, the proposal would reduce the 
administrative costs at the FAA associated with evaluating and tracking 
exemption petitions.
---------------------------------------------------------------------------

    \94\ Under 14 CFR 11.5, a petition for exemption is a request 
from an individual or entity requesting relief from a current 
regulation.
---------------------------------------------------------------------------

5. Costs and Cost Savings for Operations Broadly Offered or Advertised
    Under the proposed Sec.  91.326(b), if an operator of experimental 
or limited category aircraft broadly offers or advertises flight 
training, checking, and testing in these aircraft, the operator must 
obtain prior approval from the FAA in the form of a LODA. To obtain a 
LODA, the operator must submit an application to the FAA that includes 
an aircraft-specific training program at least 60 days in advance of 
training operations. Under the proposed change to Sec.  91.325, 
operators of certain primary category aircraft will not require a LODA 
and will no longer need to petition for an exemption to conduct 
training, testing, or checking.
    Importantly, the proposed LODA requirements under Sec.  91.326(b) 
are similar to the current LODA requirements under Sec.  91.319(h) for 
operators of certain experimental aircraft who broadly offer their 
aircraft for training, testing, or checking. The FAA also proposes to 
terminate current training LODAs within two years of the effective date 
of a final rule. However, to ensure that all operations in which an 
aircraft with a special airworthiness certificate is ``held out'' for 
training, testing, or checking comply with the proposed requirements, 
holders of current exemptions and LODAs permitting these training 
operations will need to apply for a LODA under the proposed Sec.  
91.326(b). The FAA proposes that these exemption and LODA holders 
reapply within two years of the effective date of the final rule.
    The FAA finds that the cost impacts of the LODA requirement for 
training operations in experimental and limited category aircraft 
``held out'' broadly for training will be small relative to the current 
regulatory baseline. The costs and cost savings will vary across groups 
affected by the regulation. Therefore, the FAA evaluated the cost 
impacts separately for each of the identifiable interest groups 
expected to realize costs or savings.
    Experimental aircraft operators who currently hold LODAs under 
Sec.  91.319(h) to offer their aircraft broadly for training will incur 
the cost of reapplying for their LODA within two years of the effective 
date of a final rule. The FAA estimates the reapplication requirement 
would generate approximately $100,000 in total undiscounted costs 
within the first two years following the effective date of a final 
rule. This estimate includes the time costs to the approximately 180 
current LODA holders \95\ who reapply and the FAA which must process 
these applications.96 97 98
---------------------------------------------------------------------------

    \95\ Estimate of current LODA holders under Sec.  91.319(h) 
obtained from FAA Aviation Safety (AVS) line of business. AVS 
currently tracks active LODAs in FAA's Web-based Operations Safety 
System (WebOPSS).
    \96\ The FAA estimated 4 hours per application for the LODA 
holder to reapply. The undiscounted applicant cost was calculated as 
burden hours times average labor rate including benefits. The FAA 
used an average wage including benefits of $63.25, which is the 
average wage of flight instructors ($43.14) divided by the percent 
of total employer costs of employee compensation represented by 
wages (68.2%) to account for benefits (31.8%). Flight instructor 
wages are the Bureau of Labor Statistics wage estimate for 
commercial pilots employed at technical and trade schools. Accessed 
Apr. 12, 2022, https://www.bls.gov/oes/current/oes532012.htm.
    \97\ The undiscounted FAA cost was calculated as burden hours 
times average labor rate including benefits. The FAA used an average 
wage including benefits of $79.30, which is the wage of FG-13 Step 5 
FAA aviation safety inspectors ($58.20) in the Washington-Baltimore-
Arlington Metro Area in 2022 plus benefits (36.25% of wages).
    \97\FAA Order 8900.1, Flight Standards Management Information 
System, Vol. 3, Chpt. 11, Sec. 1. Use of Aircraft Issued 
Experimental Certificates in Flight Training for Compensation or 
Hire.
    \98\ The undiscounted FAA cost was calculated as burden hours 
times average labor rate including benefits. The FAA used an average 
wage including benefits of $79.30, which is the wage of FG-13 Step 5 
FAA aviation safety inspectors ($58.20) in the Washington-Baltimore-
Arlington Metro Area in 2022 plus benefits (36.25% of wages).
---------------------------------------------------------------------------

    Under current guidance,\99\ LODA applicants already submit most of 
the proposed requirements related to training plans, instructor 
qualifications, maintenance, airworthiness, and record-keeping in order 
to successfully obtain and maintain a LODA. For the most part, the cost 
of reapplying will consist of the time to gather the relevant 
information and submit the new application. Current LODA holders who 
reapply successfully will gain the benefit of broadly offering their 
aircraft for flight testing and checking. Current LODAs only allow 
operators to broadly offer or advertise their aircraft for flight 
training and do not permit checking or testing.
---------------------------------------------------------------------------

    \99\ FAA Order 8900.1, Flight Standards Management Information 
System, Vol. 3, Chpt. 11, Sec. 1. Use of Aircraft Issued 
Experimental Certificates in Flight Training for Compensation or 
Hire.
---------------------------------------------------------------------------

    Similarly, the FAA expects minimal costs for operators of limited 
category aircraft with exemptions to apply for a LODA prior to 
expiration of their exemptions. Currently, there are fewer than five 
active training exemptions for limited category aircraft. Moreover, 
these exemptions normally only have a duration of two years and the FAA 
expects most exemption holders to already meet most of the LODA 
requirements outlined in the accompanying LODA Advisory Circular. The 
cost will consist of the time to gather the required information and 
submit a new LODA application.
    For future LODA applicants who seek to broadly offer their 
experimental or limited category aircraft for training, testing, or 
checking, the proposal is expected to lower compliance costs. Although 
the proposed LODA requirements are similar to current requirements for 
operators who broadly offer aircraft holding certain special 
airworthiness certificates for training,

[[Page 41216]]

the simplified regulatory structure and guidance in the accompanying 
advisory circular is expected to make it easier for potential 
applicants to understand requirements and submit a successful 
application.
    Overall, the FAA does not expect the proposal to significantly 
increase administrative costs at the FAA. The FAA will incur costs 
within the first two years of a final rule's effective date to process 
LODA applications from the small subset of current holders of LODAs or 
exemptions required to reapply under the proposal. However, in the long 
run the streamlined regulatory structure and guidance is expected to 
reduce the amount of time the FAA must spend obtaining additional 
information from applicants and evaluating applications.
    Finally, the clarification and simplification of the LODA process 
for operators of aircraft with certain special airworthiness 
certificates who advertise or broadly offer their aircraft for 
training-might ultimately lower travel costs for pilots seeking the 
types of supplemental and specialized training envisioned under the 
proposed Sec.  91.326(b). If more operators successfully apply for 
LODAs to broadly offer specialized training, pilots interested in 
receiving this optional specialized training might not have to travel 
as far to receive it. For example, the FAA recognizes that training in 
an Experimental Light-Sport Aircraft (ELSA) is beneficial for pilots to 
gain familiarity with the performance and handling qualities of other 
light-sport aircraft and ultralights. Currently, there are some two-
seat aircraft that perform and handle similarly to an ultralight, 
certificated as Special Light-Sport Aircraft (SLSA) available to 
conduct training, but not available in sufficient numbers for 
widespread availability. Under the proposal, the availability of ELSA 
for training through LODAs might enable pilots of other light-sport 
aircraft and ultralights to receive optional training without traveling 
as far, consequently, reducing fuel costs incurred from travel, as well 
as the time cost of travel.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act (RFA) of 1980 (Pub. L. 96-354), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L. 
111-240), requires Federal agencies to consider the effects of the 
regulatory action on small business and other small entities and to 
minimize any significant economic impact. The term ``small entities'' 
comprises small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA. 
However, if an agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities, 
section 605(b) of the RFA provides that the head of the agency may so 
certify and a regulatory flexibility analysis is not required. The 
certification must include a statement providing the factual basis for 
this determination with a reasoned explanation.
    While the proposed rule would likely impact a substantial number of 
small entities, it would have a minimal economic impact. The PAO 
proposal does not impose any new requirements or costs on small 
entities. It fulfills the mandate in section 517 of the FAA 
Reauthorization Act of 2018 that directs the FAA to allow pilots of 
aircraft under the control of forestry and fire protection agencies 
engaged in PAO to credit their flight time towards FAA civil regulatory 
requirements. It enables pilots to log aeronautical experience and 
recent flight experience accumulated during PAO and to credit this 
experience toward FAA civil certificates and ratings.
    The proposal also simplifies the regulations for operators of 
certain aircraft with special airworthiness certificates to obtain a 
LODA allowing them to broadly offer their aircraft for elective or 
specialized flight training, testing, and checking. Relative to current 
requirements to obtain a LODA or exemption for these training 
operations, the proposal clarifies requirements and creates uniform 
standards. The proposal also expands the types of aircraft eligible for 
flight training, testing, and checking under a LODA. The only new cost 
imposed by the proposal affects the holders of approximately 180 active 
training LODAs who will be required to reapply within two years of the 
effective date of a final rule. The FAA proposes to require these 
operators to reapply to ensure compliance with the proposed 
standardized LODA process. The FAA estimates that each current LODA 
holder would spend approximately four hours to resubmit a LODA 
application at an average cost of approximately $250 per LODA.\100\
---------------------------------------------------------------------------

    \100\ Cost per resubmitted LODA calculated as four hours times 
the average labor rate, including benefits. The FAA used an average 
wage including benefits of $63.25, which is the average wage of 
flight instructors ($43.14) divided by the percent of total employer 
costs of employee compensation represented by wages (68.2%) to 
account for benefits (31.8%). Flight instructor wages are the Bureau 
of Labor Statistics wage estimate for commercial pilots employed at 
technical and trade schools. Accessed Apr. 12, 2022, https://www.bls.gov/oes/current/oes532012.htm.
---------------------------------------------------------------------------

    The draft LODA advisory circular, published concurrently with this 
proposed rule, provides guidance, sample documentation, and training 
materials to fulfill Recommendation A-12-035 of the National 
Transportation Safety Board (NTSB). The FAA expects the LODA advisory 
circular to clarify the application process, thereby making it easier 
for potential applicants to understand requirements and submit a 
successful application.
    If an agency determines that a rulemaking will not result in a 
significant economic impact on a substantial number of small entities, 
the head of the agency may so certify under section 605(b) of the RFA. 
Therefore, the FAA proposes to certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
The FAA welcomes comments on the basis of this certification.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective such as the protection of safety and does not operate in a 
manner that excludes imports, that meet this objective. The statute 
also requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    The FAA has assessed the potential effect of this proposed rule and 
determined that the proposal responds to a domestic safety objective. 
The FAA has determined that this proposed rule is not considered an 
unnecessary obstacle to trade.

[[Page 41217]]

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $165 million in lieu of $100 
million. This proposed rule does not contain such a mandate; therefore, 
the requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. According to the 1995 
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid Office of Management and Budget (OMB) control number.
    As part of this rulemaking action, the FAA is also requesting OMB 
approval for a new one-time information collection request. As required 
by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has 
submitted these proposed information collection revisions to OMB for 
its review.
    Summary: The proposed rule creates Sec.  91.326(b) which 
establishes unified requirements for operators who broadly offer 
certain aircraft with special airworthiness certificates for flight 
training, testing, or checking to obtain prior approval from the FAA in 
the form of a LODA. Through the LODA process the FAA provides oversight 
of operators who advertise or broadly offer certain aircraft with 
special airworthiness certificates for elective and specialized flight 
training, testing, and checking. The advisory circular published 
concurrently with this proposed rule provides guidance, sample 
documentation, and training materials to fulfill Recommendation A-12-
035 of the National Transportation Safety Board (NTSB). The FAA expects 
that the proposed Sec.  91.326(b) and advisory circular will ensure 
consistency and clarify the application process, thereby making it 
easier for potential applicants to understand requirements and submit a 
successful application.
    Under the current Sec.  91.319(h), operators of certain 
experimental aircraft already have the opportunity to apply for LODAs 
permitting them to advertise or broadly offer their aircraft for flight 
training, testing, or checking in exchange for compensation that 
includes use of the aircraft. The proposed Sec.  91.326(b) extends the 
opportunity to apply for a LODA to operators of aircraft not currently 
eligible for LODAs under Sec.  91.319(h). Previously ineligible 
aircraft that would be eligible for operations under a LODA in the 
proposed Sec.  91.326(b) include experimental light-sport aircraft 
(ELSA) and limited category aircraft. Under current rules, operators of 
primary category and limited category aircraft are required to petition 
the FAA for an exemption \101\ to broadly offer their aircraft for 
flight training, testing or checking. Under proposed changes to Sec.  
91.325 operators of primary category aircraft will be permitted to 
conduct training operations without obtaining a LODA or exemption.
---------------------------------------------------------------------------

    \101\ Under 14 CFR 11.5, a petition for exemption is a request 
from an individual or entity requesting relief from a current 
regulation. The FAA expects that the new guidance associated with 
the LODA process will reduce burden hours relative to petitioning 
for exemptions.
---------------------------------------------------------------------------

    In addition to extending LODA eligibility to operators of 
additional limited category aircraft, the proposed rule will also 
terminate all active Sec.  91.319(h) LODAs for training operations for 
compensation in experimental aircraft within two years of the effective 
date of the final rule. Exemptions issued for flight training in 
limited and primary category aircraft will not be renewed. Exemptions 
issued for Living History Flight Experiences are not affected by the 
proposed rule. The FAA expects operators of experimental or limited 
category aircraft with active LODAs or exemptions,\102\ respectively, 
who broadly offer their aircraft for training to apply for a LODA under 
the proposed Sec.  91.326(b) within this time period. The FAA currently 
issues LODAs without expiration dates for eligible operators who 
broadly offer their aircraft for training. The FAA is proposing to 
terminate current LODAs in order to ensure that all operators are in 
compliance with the proposed requirements.
---------------------------------------------------------------------------

    \102\ Exemptions are typically only valid for two years. 
Therefore, the FAA does not expect current exemption holders to be 
materially affected by the requirement to apply for a LODA within 2 
years. The FAA expects that the information and time requirements to 
apply for a LODA under Sec.  91.326(c) for current exemption holders 
will be similar to the time and information requirements to renew an 
exemption, but substantially less than the time requirements to 
petition for a new exemption.
---------------------------------------------------------------------------

    The burden analysis in this proposed rule only applies to holders 
of active LODAs who must reapply within two years of the effective date 
of a final rule. On February 14, 2022, the FAA published a separate 
notice to revise OMB Control Number 2120-0005 for information 
collection related to LODAs for flight training, testing, and checking 
in certain experimental aircraft.\103\
---------------------------------------------------------------------------

    \103\ See 87 FR 8335 (Feb. 14, 2022) ``Clearance of Renewed 
Approval of Information Collection: General Operating and Flight 
Rules FAR 91 and FAR 107.''
---------------------------------------------------------------------------

    Use: The FAA will use the information provided by LODA applicants 
to promote safety for specialized flight training, testing, or checking 
offered to the public in experimental and limited category aircraft. 
The LODA framework enables the FAA to provide oversight to ensure 
effective training and maintenance of the aircraft.
    Respondents: The FAA estimates that within the first two years of 
the effective date of a final rule, approximately 180 current LODA 
holders will reapply for LODAs.\104\
---------------------------------------------------------------------------

    \104\ The FAA Web-based Operations Safety System (WebOPSS) 
contains 180 LODAs for experimental aircraft under Sec.  91.319(h).
---------------------------------------------------------------------------

    Frequency: One time per applicant. The proposed LODAs do not have 
an expiration period.
    Annual Burden Estimate: For current LODA holders who reapply within 
the first two years of the effective date of a final rule, the FAA 
estimates a one-time burden of four hours per applicant. The FAA 
expects the applicant to keep the required information as a condition 
of the current LODA, so the burden of reapplying will consist of the 
time to gather the required information and resubmit. Current LODA 
holders are already required to meet the recordkeeping and other 
proposed requirements. Therefore, the proposal creates no new annual 
burden for current LODA holders who reapply. The proposed LODAs do not 
have an expiration date, so there will be no renewal costs. The FAA 
assumes the burden hours per application for the FAA to process 
applications from current LODA holders who reapply will be four hours.
    Table 1 presents the annual burden hours and undiscounted costs for 
the approximately 180 current LODA holders required to reapply within 
the first two years of the effective date of a final rule. Table 2 
presents the burden estimate and costs for the Federal Government to 
process these LODA applications. The total undiscounted cost of burden 
hours for applicants and the FAA combined is estimated to be

[[Page 41218]]

$102,642 over two years. Total discounted (at 7 percent) cost of burden 
hours is estimated to be $91,743 over two years. Total annualized costs 
at a 7 percent discount rate are $47,423.

                 Table 1--Total Burden Hours and Costs for Current LODA Holders Who Must Reapply
----------------------------------------------------------------------------------------------------------------
                                             Number of LODA       Hours per
                                              applications       application     Total burden    Total cost for
                   Year                       from current      current LODA         hours         applicants
                                            LODA holders \1\       holders                      undiscounted \2\
----------------------------------------------------------------------------------------------------------------
1.........................................                60                 4             240           $15,181
2.........................................               120                 4             480            30,362
                                           ---------------------------------------------------------------------
    Total.................................  ................  ................             720            45,543
    Mean..................................  ................  ................             360            22,772
----------------------------------------------------------------------------------------------------------------
LODA = Letter of Deviation Authority.
\1\ The FAA assumes that approximately one third of current LODA holders will reapply the first year after the
  effective date of a final rule and the remaining LODA holders will reapply in the second year.
\2\ Undiscounted applicant cost calculated as burden hours times average labor rate including benefits. The FAA
  used an average wage including benefits of $63.25, which is the average wage of flight instructors ($43.14)
  divided by the percent of total employer costs of employee compensation represented by wages (68.2%) to
  account for benefits (31.8%). Flight instructor wages are the Bureau of Labor Statistics wage estimate for
  commercial pilots employed at technical and trade schools. Accessed April 12, 2022, https://www.bls.gov/oes/current/oes532012.htm.


Table 2--Total Burden Hours and Cost to Federal Government To Process Applications From Current LODA Holders Who
                                                  Must Reapply
----------------------------------------------------------------------------------------------------------------
                                             Number of LODA
                                              applications        Hours per      Total burden       FAA cost
                   Year                       from current     application FAA     hours FAA    undiscounted \2\
                                            LODA holders \1\
----------------------------------------------------------------------------------------------------------------
1.........................................                60                 4             240           $19,033
2.........................................               120                 4             480            38,066
                                           ---------------------------------------------------------------------
    Total.................................               180  ................             720            57,098
    Mean..................................                90  ................             360            28,549
----------------------------------------------------------------------------------------------------------------
LODA = Letter of Deviation Authority.
\1\ The FAA assumes that approximately one third of current LODA holders will reapply the first year after the
  effective date of the final rule and the remaining LODA holders will reapply in the second year.
\2\ Undiscounted government cost calculated as burden hours times average labor rate including benefits. The FAA
  used an average wage including benefits of $79.30, which is the wage of FG-13 Step 5 FAA aviation safety
  inspectors ($58.20) in the Washington-Baltimore-Arlington Metro Area in 2022 plus benefits (36.25% of wages).

    The agency is soliciting comments to--
    (1) Evaluate whether the proposed information requirement is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden 
hours and cost;
    (3) Enhance the quality, utility and clarity of the information to 
be collected; and
    (4) Minimize the burden of collecting information on those who are 
to respond, including by using appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology.
    Individuals and organizations may send comments on the information 
collection requirement to the address listed in the ADDRESSES section 
at the beginning of this preamble by August 22, 2023. Comments also 
should be submitted to the Office of Management and Budget, Office of 
Information and Regulatory Affairs, Attention: Desk Officer for FAA, 
New Executive Office Building, Room 10202, 725 17th Street NW, 
Washington, DC 20053.

F. International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
reviewed the corresponding ICAO Standards and Recommended Practices and 
has identified a difference with these proposed regulations. The FAA 
notes that, under proposed Sec.  61.51(f)(4), pilots designated by a 
government entity as an SIC may log SIC time during authorized PAO with 
certain limitations. The FAA determined that this provision is 
inconsistent with the ICAO standard for logging. Accordingly, all 
pilots who log flight time under this provision and apply for an ATP 
certificate would have a limitation on the certificate indicating that 
the pilot does not meet the PIC aeronautical experience requirements of 
ICAO. This limitation may be removed when the pilot presents 
satisfactory evidence that he or she has met the ICAO standards.

G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this proposed rule qualifies for the categorical exclusion 
identified in paragraph 5-6.6f and involves no extraordinary 
circumstances.

VI. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this rulemaking under the principles and 
criteria of Executive Order 13132, Federalism. The agency has 
determined that this action would not have a

[[Page 41219]]

substantial direct effect on the States, or the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government, and, 
therefore, would not have federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this rulemaking under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use. The agency has determined that it would not be a 
``significant energy action'' under the executive order and would not 
be likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

C. Executive Order 13609, International Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, promotes international regulatory cooperation to meet 
shared challenges involving health, safety, labor, security, 
environmental, and other issues and to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this action under the policies and agency responsibilities of 
Executive Order 13609, and has determined that this action would have 
no effect on international regulatory cooperation.

VII. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The Agency 
also invites comments relating to the economic, environmental, energy, 
or federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, commenters should submit only one time if comments 
are filed electronically or commenters should send only one copy of 
written comments if comments are filed in writing.
    The FAA will file in the docket all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this proposed rulemaking. Before acting on this 
proposal, the FAA will consider all comments it receives on or before 
the closing date for comments. The FAA will consider comments filed 
after the comment period has closed if it is possible to do so without 
incurring expense or delay. The FAA may change this proposal in light 
of the comments it receives.

B. Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial 
information that is both customarily and actually treated as private by 
its owner. Under the Freedom of Information Act (FOIA), 5 U.S.C. 552, 
CBI is exempt from public disclosure. If your comments responsive to 
this NPRM contain commercial or financial information that is 
customarily treated as private, that you actually treat as private, and 
that is relevant or responsive to this NPRM, it is important that you 
clearly designate the submitted comments as CBI. Please mark each page 
of your submission containing CBI as ``PROPIN.'' The FAA will treat 
such marked submissions as confidential under the FOIA, and they will 
not be placed in the public docket of this NPRM. Submissions containing 
CBI should be sent to the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this document. Any commentary the FAA 
receives which is not specifically designated as CBI will be placed in 
the public docket for this rulemaking.

C. Electronic Access and Filing

    A copy of this notice of proposed rulemaking, all comments 
received, any final rule, and all background material may be viewed 
online at www.regulations.gov using the docket number listed above. A 
copy of this rulemaking will be placed in the docket. Electronic 
retrieval help and guidelines are available on the website. It is 
available 24 hours each day, 365 days each year. An electronic copy of 
this document may also be downloaded from the Office of the Federal 
Register's website at www.federalregister.gov and the Government 
Publishing Office's website at www.govinfo.gov. A copy may also be 
found at the FAA's Regulations and Policies website at www.faa.gov/regulations_policies.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. 
Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this proposed rule, 
including economic analyses and technical reports, may be accessed in 
the electronic docket for this rulemaking.

List of Subjects

14 CFR Part 61

    Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, 
Flight instruction, Recreation and recreation areas, Reporting and 
recordkeeping requirements, Security measures, Teachers.

14 CFR Part 91

    Agriculture, Air carriers, Air taxis, Air traffic control, 
Aircraft, Airmen, Airports, Aviation Safety, Charter flights, Freight, 
Reporting and recordkeeping requirements, Security measures, 
Transportation.

The Proposed Amendment

    For the reasons discussed in the preamble, the Federal Aviation 
Administration proposes to amend chapter I of title 14, Code of Federal 
Regulations as follows:

PART 61--CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND 
INSTRUCTORS

0
1. The authority citation for part 61 is revised to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701-44703, 44707, 
44709-44711, 44729, 44903, 45102-45103, and 45301-45302, and sec. 
2307, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note); and 
sec. 318, Pub. L. 115-254, 132 Stat. 3186 (49 U.S.C. 44703 note).

0
2. Amend Sec.  61.51 by revising paragraphs (f) and (j)(4) to read as 
follows:


Sec.  61.51   Pilot logbooks.

* * * * *
    (f) Logging second-in-command flight time. A person may log second-
in-command time only for that flight time during which that person:
    (1) Is qualified in accordance with the second-in-command 
requirements of Sec.  61.55, and occupies a crewmember station in an 
aircraft that requires more than one pilot by the aircraft's type 
certificate;
    (2) Holds the appropriate category, class, and instrument rating 
(if an instrument rating is required for the flight) for the aircraft 
being flown, and more than one pilot is required under the type 
certification of the aircraft or the regulations under which the flight 
is being conducted;
    (3) Serves as second-in-command in operations conducted in 
accordance with Sec.  135.99(c) of this chapter when a second pilot is 
not required under the

[[Page 41220]]

type certification of the aircraft or the regulations under which the 
flight is being conducted, provided the requirements in Sec.  61.159(c) 
are satisfied; or
    (4) Is designated by a government entity as second in command when 
operating in accordance with paragraph (j)(4) of this section provided 
the aircraft used is a large aircraft or turbo-jet powered airplane; or 
holds or originally held a type certificate that requires a second 
pilot provided that:
    (i) Second-in-command time logged under paragraph (f)(4) of this 
section may not be used to meet the aeronautical experience 
requirements for the private or commercial pilot certificates or an 
instrument rating; and
    (ii) An applicant for an airline transport pilot certificate who 
logs second in command time under paragraph (f)(4) of this section is 
issued an airline transport pilot certificate with the limitation, 
``Holder does not meet the pilot in command aeronautical experience 
requirements of ICAO,'' as prescribed under Article 39 of the 
Convention on International Civil Aviation if the applicant does not 
meet the ICAO requirements contained in Annex 1 ``Personnel Licensing'' 
to the Convention on International Civil Aviation. An applicant is 
entitled to an airline transport pilot certificate without the ICAO 
limitation specified under this paragraph when the applicant presents 
satisfactory evidence of having met the ICAO requirements and otherwise 
meets the aeronautical experience requirements of Sec.  61.159.
* * * * *
    (j) * * *
    (4) An aircraft used to conduct a public aircraft operation under 
49 U.S.C. 40102(a)(41) and 40125.
* * * * *
0
3. Amend Sec.  61.57 by adding paragraph (e)(5) to read as follows:


Sec.  61.57  Recent flight experience: Pilot in command.

* * * * *
    (e) * * *
    (5) Paragraphs (a) and (b) of this section do not apply to a person 
receiving flight training from an authorized instructor, provided:
    (i) The flight training is limited to the purpose of meeting the 
requirements of paragraphs (a) and (b) of this section;
    (ii) Notwithstanding the provisions of paragraphs (a) and (b), the 
person receiving flight training meets all other requirements to act as 
pilot in command of the aircraft; and
    (iii) The authorized instructor and the person receiving flight 
training are the sole occupants of the aircraft.
0
4. Amend Sec.  61.159 by revising paragraph (e) to read as follows:


Sec.  61.159  Aeronautical experience: Airplane category rating.

* * * * *
    (e) An applicant who credits time under paragraphs (b), (c), and 
(d) of this section and Sec.  61.51(f)(4) is issued an airline 
transport pilot certificate with the limitation, ``Holder does not meet 
the pilot in command aeronautical experience requirements of ICAO,'' as 
prescribed under Article 39 of the Convention on International Civil 
Aviation.
* * * * *
0
5. Amend Sec.  61.161 by revising paragraph (d) to read as follows:


Sec.  61.161  Aeronautical experience: Rotorcraft category and 
helicopter class rating.

* * * * *
    (d) An applicant who credits time under paragraph (c) of this 
section and Sec.  61.51(f)(4) is issued an airline transport pilot 
certificate with the limitation, ``Holder does not meet the pilot in 
command aeronautical experience requirements of ICAO,'' as prescribed 
under Article 39 of the Convention on International Civil Aviation.
* * * * *
0
6. Amend Sec.  61.193 by:
0
a. Revising paragraphs (a) introductory text and (a)(7); and
0
b. Adding paragraph (c).
    The revisions and addition read as follows:


Sec.  61.193   Flight Instructor Privileges.

    (a) A person who holds a flight instructor certificate is 
authorized within the limitations of that person's flight instructor 
certificate and ratings to conduct ground training, flight training, 
certain checking events, and to issue endorsements related to:
* * * * *
    (7) A flight review, operating privilege, or recency of experience 
requirement of this part, or training to maintain or improve the skills 
of a certificated pilot;
* * * * *
    (c) The privileges authorized in this section do not permit a 
person who holds a flight instructor certificate to conduct operations 
that would otherwise require an air carrier or operating certificate or 
specific authorization from the Administrator.
0
7. Amend Sec.  61.413 by:
0
a. Revising paragraphs (a) introductory text and (a)(6); and
0
b. Adding paragraph (c).
    The revisions and addition read as follows:


Sec.  61.413   What are the privileges of my flight instructor 
certificate with a sport pilot rating?

    (a) If you hold a flight instructor certificate with a sport pilot 
rating, you are authorized, within the limits of your certificate and 
rating, to conduct ground training, flight training, certain checking 
events, and to issue endorsements. The kind of training and the 
endorsements that may be issued are those required for, or related to:
* * * * *
    (6) A flight review or operating privilege for a sport pilot, or 
training to maintain or improve the skills of a sport pilot;
* * * * *
    (c) The privileges authorized in this section do not permit a 
person who holds a flight instructor certificate to conduct operations 
that would otherwise require an air carrier or operating certificate or 
specific authorization from the Administrator.

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
8. The authority citation for part 91 is revised to read as follows:

    Authority:  49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 
40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 
44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 
47122, 47508, 47528-47531, 47534; Sec. 5604 of Pub. L. 117-263.

0
9. Revise Sec.  91.315 to read as follows:


Sec.  91.315   Limited category civil aircraft: Operating limitations.

    Except as provided in Sec.  91.326 of this part, no person may 
operate a limited category civil aircraft carrying persons or property 
for compensation or hire in operations that:
    (a) Require an air carrier or commercial operator certificate 
issued under part 119 of this chapter;
    (b) Are listed in Sec.  119.1(e) of this chapter;
    (c) Require management specifications for a fractional ownership 
program issued in accordance with Subpart K of part 91 of this chapter; 
or
    (d) Are conducted under parts 129, 133, or 137 of this chapter.
0
10. Amend Sec.  91.319 by:
0
a. Revising paragraphs (a) introductory text, (a)(2), (d)(3), (e)(2) 
and (f); and
0
b. Removing and reserving paragraph (h).
    The revisions read as follows:


Sec.  91.319   Aircraft having experimental certificates: Operating 
limitations.

    (a) Except as provided in Sec.  91.326 of this part, no person may 
operate an

[[Page 41221]]

aircraft that has an experimental certificate--
    (1) * * *
    (2) Carrying persons or property for compensation or hire in 
operations that:
    (i) Require an air carrier or commercial operator certificate 
issued under part 119 of this chapter;
    (ii) Are listed in Sec.  119.1(e) of this chapter;
    (iii) Require management specifications for a fractional ownership 
program issued in accordance with subpart K of part 91 of this chapter; 
or
    (iv) Are conducted under parts 129, 133, or 137 of this chapter.
* * * * *
    (d) * * *
    (3) Notify air traffic control of the experimental nature of the 
aircraft when utilizing air traffic services.
    (e) * * *
    (2) Conduct operations authorized under Sec.  91.326 of this part.
    (f) No person may lease an aircraft that is issued an experimental 
certificate under Sec.  21.191(i) of this chapter, except--
    (1) In accordance with paragraph (e)(1) of this section; or
    (2) To conduct a solo flight in accordance with a training program 
included as part of the deviation authority specified under Sec.  
91.326(b) of this part.
* * * * *
    (h) [Reserved]
* * * * *
0
11. Revise Sec.  91.325 to read as follows:


Sec.  91.325   Primary category aircraft: Operating limitations.

    (a) Unless provided for in this section, no person may operate a 
primary category aircraft carrying a person or property for 
compensation or hire in operations that:
    (1) Require an air carrier or commercial operator certificate 
issued under part 119 of this chapter;
    (2) Are listed in Sec.  119.1(e) of this chapter;
    (3) Require management specifications for a fractional ownership 
program issued in accordance with subpart K of part 91 of this chapter; 
or
    (4) Are conducted under parts 129, 133, or 137 of this chapter.
    (b) Except as provided in Sec.  91.326(a), no person may operate a 
primary category aircraft that is maintained by the pilot-owner under 
an approved special inspection and maintenance program except--
    (1) The pilot-owner; or
    (2) A designee of the pilot-owner, provided that the pilot-owner 
does not receive compensation for the use of the aircraft.
    (c) A primary category aircraft that is maintained by an 
appropriately rated mechanic or an authorized certificated repair 
station in accordance with the applicable provisions of part 43 of this 
chapter may be used to conduct flight training, checking, and testing 
for compensation or hire.
0
12. Add Sec.  91.326 to subpart D to read as follows:


Sec.  91.326   Exception to Operating Certain Aircraft for Compensation 
or Hire.

    (a) For purposes of Sec. Sec.  91.315, 91.319, and 91.325 of this 
part, an authorized instructor, registered owner, lessor, or lessee may 
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, provided--
    (1) The authorized 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 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. Compensation for the use of the aircraft for 
profit is prohibited.
    (b) Except as provided in paragraphs (a) and (c) of this section, 
no person may conduct flight training, checking, or testing in a 
limited category or experimental aircraft without deviation authority 
issued under this paragraph.
    (1) No person may operate under this section without a letter of 
deviation authority issued by the Administrator.
    (2) The FAA may cancel or amend a letter of deviation authority if 
it determines that the deviation holder has failed to comply with the 
conditions and limitations or at any time if the Administrator 
determines that the deviation is no longer necessary or in the interest 
of safety.
    (3) An applicant must submit a request for deviation authority in a 
form and manner acceptable to the Administrator at least 60 days before 
the date of intended operations. A request for deviation authority must 
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, including:
    (i) A letter identifying the name and address of the applicant;
    (ii) The name and contact information of the individual with 
ultimate responsibility for operations authorized under the deviation 
authority;
    (iii) Specific aircraft make(s), model(s), registration number(s), 
and serial numbers to be used;
    (iv) Copies of each aircraft's airworthiness certificate, including 
the FAA-issued operating limitations, if applicable;
    (v) Ejection seat information, if applicable;
    (vi) An exemption issued under part 11, if applicable;
    (vii) A detailed training program that demonstrates the proposed 
activities will meet the intended training objectives;
    (viii) 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 
those types of training are being requested; and
    (ix) Any other information that the Administrator deems necessary 
to evaluate the application.
    (4) The Administrator may prescribe additional limitations in a 
letter of deviation authority that the Administrator considers 
necessary for safety. The holder of a letter of deviation authority 
must comply with any limitations and conditions mandated in the 
deviation authority.
    (5) No person other than the authorized flight instructor, 
designated examiner, person receiving flight training or being checked 
or tested, or persons essential for the safe operation of the aircraft 
may be on board during operations conducted under the deviation 
authority.
    (6) The Administrator may limit the types of training, testing, and 
checking authorized under this deviation authority. Training, testing, 
and checking under this deviation authority must be conducted 
consistent with the training program submitted for FAA review.
    (c) For deviation authority issued under Sec.  91.319 of this part 
prior to [EFFECTIVE DATE OF FINAL RULE], the following requirements 
apply--
    (1) The deviation holder may continue to operate under the letter 
of deviation authority until [DATE 24 MONTHS AFTER EFFECTIVE DATE OF 
FINAL RULE];
    (2) The deviation holder must continue to comply with the 
conditions and limitations in the letter of deviation authority when 
conducting an operation under the letter of deviation authority in 
accordance with Sec.  91.326(c)(1);
    (3) The letter of deviation authority may be cancelled or amended 
at any time; and

[[Page 41222]]

    (4) The letter of deviation authority terminates on [DATE 24 MONTHS 
AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
0
13. Amend Sec.  91.327 by revising paragraph (a)(2) to read as follows:


Sec.  91.327   Aircraft having a special airworthiness certificate in 
the light-sport category: Operating limitations.

    (a) * * *
    (2) To conduct flight training, checking, and testing.
* * * * *

    Issued under authority provided by 49 U.S.C. 106(f), 44701-
44703, sec. 517 of Public Law 115-254, and Sec. 5604 of Public Law 
117-263 in Washington, DC.
Wesley L. Mooty,
Acting Deputy Executive Director, Flight Standards Service.
[FR Doc. 2023-12600 Filed 6-22-23; 8:45 am]
BILLING CODE 4910-13-P


