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Question of the Month: I hear that the rules have changed (again) for training in experimental aircraft…what’s the scoop?

Strap in and “clear prop” …this is flight training in experimental aircraft, redux!

It was a dark and stormy day back in July 2021 when the FAA effectively reversed a decades-long interpretation that the provision of flight instruction was not considered part of the “compensation or hire” wording found in several regulations that limit the use of certain aircraft.

Why on earth would they do that?

Well, without wanting to drag too much into the past, the FAA got wind that some operators were stretching a point by “holding out” (advertising) rides in warbirds, under the guise of providing flight training.  As the said warbirds were certificated as “special category” in terms of airworthiness (more precisely, operating as limited category under the wide scope of special airworthiness), the FAA dug into the regulations and issued a ruling that had implications far beyond that of flight training in limited category warbirds.  You can read more about this pivotal case, here:  Warbird Adventures, Inc., et al v. FAA. By the way, there is indeed a correct way for operators of warbirds to gain exemptions to provide “living history rides”, rather than calling it “flight training”.

The essence of the July 12th 2021 de facto ruling (there was no comment period, whereby interested parties could give their input and opinions—and this didn’t help the case!), was that there was a conflict between the wording in (the now previous) FAA Order 8900.1—which provided guidance to FAA inspectors—and that of the regulations that define limitations for the use of aircraft with certain special airworthiness certificates.  The focus started with limited category (§ 91.315), but as the wording around “not for compensation or hire” is the same in the regulations for primary aircraft (§ 91.325) and for experimental (§ 91.319), the FAA claimed that: “…flight training in one of these categories of aircraft for compensation is acting contrary to the regulations, absent a letter of deviation authority (LODA) or an exemption”. As the FAA also decided to change the meaning of “compensation” to be anything of value, including logging instructional time even if no money changed hands, then any training flight in an experimental aircraft would require written notice of deviation from the regulations.

The underlying reason for the rule could, on face-value, be considered reasonable—the FAA wanted to ensure that Joe Public was safe when paying for rides in a warbird, and this notion of safety is closely related to aircraft airworthiness standards and compliance.   Almost by definition, the standards for experimental, primary, and limited category aircraft are very different from those of standard category aircraft. 

Again, trying to keep the history lesson to a minimum, in a classic case of “proliferating consequences”, the rule essentially overturned several decades-long interpretations and conventional wisdom regarding compensated flight instruction in general, and particularly flight instruction in experimental aircraft.  Suddenly and instantly, many common flight training situations now required a “LODA”.

The notion of a Letter of Division Authority (LODA) is not new.  If an aircraft (and/or its operation) does not conform to the applicable regulations, then a LODA must be obtained from a Flight Standards District Office (FSDO).  A well-known example of this is the case of a flight school wanting to use experimental aircraft for the provision of flight training.  This is clearly involves using the aircraft “for compensation” which goes against § 91.319(a)(2).  A LODA will provide time-limited relief for this activity.  Just an aside, the FAA doesn’t just automatically grant LODAs for such activities.  Explicitly, the FAA states that primary training—and in fact any training towards a certificate or rating—should, wherever possible, be performed in an aircraft holding a standard airworthiness certificate rather than in an experimental category aircraft.  Nevertheless, the FAA may issue LODAs for training that can be accomplished only in specific experiment aircraft—examples include type training, transition training and so on.  A situation close to my heart is the use of a 2-seat “ultralight-like” experimental aircraft to provide training for people wanting to fly actual ultralight vehicles.  Not being able to provide such training would take us back the 1980s, with people jumping into single-seat ultralights and quickly killing themselves.  

Bringing this together, the 2021 FAA rule informed us that we’ve had it all wrong for years…actually decades, and that now:

  1. The provision of flight instruction apparently always involves compensation of some sort, and…
  2. …as such, instruction in limited, experimental and primary category aircraft now violated the applicable Part 91 regulation (since the earlier guidance was erroneous), unless in accordance with authorization in the form of a letter of deviation authority…the infamous LODA.
  3. That previously accepted situations where a LODA was not required were no longer applicable and, essentially, all flight training situations taking place in experimental, primary and limited category aircraft must involve a LODA.

Gosh.

The implications of this were huge.  It appeared that the owner of an experimental aircraft could no longer get a flight review or a safety checkout or a WINGS flight or other training with an instructor unless a LODA was in place.  Again, this completely changed conventional wisdom which states that any and all dual instruction is a good thing and be encouraged, not made more difficult.

As expected, all the alphabet groups, as well as aviation journalists, bloggers, owners of experimental aircraft and so on, got heated really quickly about this state of affairs. 

Well, following the outpouring of indignation, the FAA quickly put in place a quick-issue method to apply for LODAs to permit flight training in experimental aircraft.  They provided a downloadable template application form, which would be completed and emailed to the FAA.  As a CFI who instructs in experimental aircraft, I completed and submitted the simple form at 10:14am on August 11th, 2021.  I received signed approval at 10:29am on the same day.  Essentially, they used the fast-track LODA process to restore what we have been doing for the past 50-years!

This then led to obvious allegations that the whole thing, especially for the case of the tens of thousands of owners of experimental aircraft, was a bureaucratic exercise.  In fact, the FAA Administrator of the day, Steve Dickson called it a “document drill”, a “loophole we had to close” and that LODA was “a four-letter word”—basically an admission, at least for the case of experimental category aircraft, that the whole thing was a paper exercise.

Given that this rule was forced in place by a federal administration, it literally required an act of congress to overrule it.  After a great deal of effort from many organizations and individuals, not least the advocacy teams at AOPA and EAA, and the cross-party support of Senator Jim Inhofe (R-Okla.), Senator Roger Wicker (R-Miss.), Representatives Sam Graves (R-MO.), Rick Larsen (D-Wash.) and Kai Kahele (D-Hawaii), language was  included in the National Defense Authorization  Act for Fiscal Year 2023 to eliminate the 2021 requirement for owners, pilots and flight instructors to obtain a LODA to give and receive flight training in an experimental aircraft. 

The Bill, named after Senator Jim Inhofe, received overwhelming support in both the Senate and the House and President Biden signed it into law on December 23rd, 2022, as H.R.7776 - James M. Inhofe National Defense Authorization Act for Fiscal Year 2023.

Sanity prevailed.  But back to the original question: “I hear that the rules have changed (again) for training in experimental aircraft…what’s the scoop?” 

What indeed is the scoop—is it that the LODA…the way of Yoda, has gone?

Well, not entirely.  The law does not eliminate the LODA requirement for a CFI or flight schools providing both aircraft and the instructor for compensation, or for a flight school/FBO renting an experimental to the public.  This, IMHO, is quite right and proper.  You just can’t have commercial operators providing training to the public in experimental aircraft as though they are standard category aircraft, without some sort of adherence to a documented and approved safety policy. 

Now, the above applies to experimental category aircraft, so owners of primary and limited category aircraft should do their homework to understand the requirements for a LODA or exemption for flight training and other operations, like paid rides.

Anyway…here is the wording directly out of the Bill, which is now cast in the law of the land.  Section 5604 of the Bill states:

SEC. 5604.LETTER OF DEVIATION AUTHORITY.

    A flight instructor, registered owner, lessor, or lessee of an

aircraft shall not be required to obtain a letter of deviation

authority from the Administrator of the Federal Aviation Administration

to allow, conduct or receive flight training, checking, and testing in

an experimental aircraft if--

        (1) the flight instructor is not providing both the training

    and the aircraft;

        (2) no person advertises or broadly offers the aircraft as

    available for flight training, checking, or testing; and

        (3) no person receives compensation for use of the aircraft for

    a specific flight during which flight training, checking, or

    testing was received, other than expenses for owning, operating,

    and maintaining the aircraft.

 

If you’re an EAA member, take a listen to Tom Charpentier’s excellent webinar on this subject:  https://www.eaa.org/videos/webinars/6318560840112

 

Wednesday 8th February:  Hot News!

Just as I was wrapping-up this article, the FAA published:  “Notification of Policy for Implementation of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 for Flight Training, Checking, and Testing in Experimental Aircraft”.  This is the new FAA rule that implements the above mentioned Act.  As well as reiterating that flight training in an experimental aircraft without a LODA does not include any commercial operations or “broadly offering flight training”, the rule includes some useful scenarios to help us understand what is, and isn’t, permitted under the rule. 

Scenario A: An experimental aircraft owner wishes to hire a flight instructor to receive flight training in the owner's own aircraft. The owner intends to pay the flight instructor for the instruction. This operation is permissible under the Act without a LODA.

Scenario B: An experimental aircraft owner seeks to provide flight training in their aircraft to others. This owner (or a person or entity action on their behalf) is willing to allow almost anyone who comes to receive flight training in the owner's aircraft, provided the person receiving training pays a fee. The owner advertises flight training on a website and/or offers these training flights to attendees at various air shows. This operation is not permissible under the Act and would continue to require a LODA.

Scenario C: Four people co-own an experimental aircraft as part of a flying club. One of these people needs to get a flight review in the aircraft, so that person hires a flight instructor and pays the instructor for the training, plus pays a pre-arranged hourly rate that covers fuel used during the flight, as well as ongoing maintenance costs. Each co-owner pays the same hourly rate as a part of a co-ownership contract. Members of the flying club do not expect monetary gain or profit, but rather the fee is in place to cover the costs of owning, operating, and maintaining the aircraft. This scenario is permissible under the Act without a LODA.

Scenario D: An owner of an experimental aircraft starts a flying club and advertises to gain flying club members. This person charges a fee for “club membership,” and club members are given a flight training flight or series of flights in return. This fee yields a profit for the owner in excess of the compensation permissible under the Act. This operation includes broadly offered flight training, as well as an operator offering both the aircraft and the instructor. This operation is not permissible under the Act and would continue to require a LODA. Depending on the circumstances, this operation may also require some other kind of authorization from the Administrator, such as an air carrier or commercial operator certificate, or a commercial air tour letter of authorization.

 

So, for true, non-profit, non-commercial flying clubs operating experimental aircraft, Scenario C clearly states that a LODA is not required for members to receive flight training in club aircraft. 

By the way, the new rule also clearly states that the “fast-track” LODA process will cease to operate and ”In addition, the FAA considers LODAs issued under this process to be terminated”. 

Perfectly fine, since they are not needed anymore!

Can’t wait to read more about airworthiness categories, the use of experimental and LSAs in flying clubs, and even more on LODAs?  Well, curl up to the latest revision of “Operating Experimental and S-LSA Aircraft in Flying Clubs (V5.0)”.

Before we leave this topic, let’s celebrate some victories:

  1. General aviation came together and literally with an act of congress, changed a very strange rule
  2. Federal administrations must realize that they cannot just arbitrarily make rules without going through the proper process.This is why the Notice for Proposed Rulemaking (NPRM) process exists
  3. The result was a law that will prevent (or make exceedingly difficult) any similar attempts in the future

As always, fly lots and fly safety!

Stephen Bateman

Flying Clubs Initiative
Steve leads the You Can Fly Flying Clubs Initiative, which helps start and grow flying clubs, nationwide. Steve is a CFI, an AOPA staff instructor, LSRM-A and FAASTeam lead representative. Contact Steve at [email protected]

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