Contributor - Accidents and Regulations

Contributor - Accidents and Regulations

Gordon Gilbert

NBAA and AOPA have panned the FAA’s <a href="https://www.govinfo.gov/content/pkg/FR-2021-07-12/pdf/2021-14765.pdf">newly revised policy</a> clarifying how flight training can be compensated in aircraft that hold special airworthiness certificates, including limited and experimental categories. The policy statement also establishes an expedited electronic process for owners of experimental aircraft to obtain a required letter of deviation authority (LODA) to receive and provide compensation for flight training in their own experimental-category aircraft.

 


Both NBAA and AOPA expressed their dissatisfaction with the policy and the LODA requirement, calling on the agency to further revise its policy, which became effective July 12. Publication of the policy ostensibly addresses the concerns of several general aviation organizations that previously objected to guidelines laid out in a June 4 FAA letter that stated a flight instructor operating a limited, experimental or even a primary category aircraft and “carrying a paying student” is acting contrary to federal regulation.

 


In the new policy statement, the FAA concedes that the distinction set forth in its June 4 letter is inconsistent with the definition of ‘‘operate’’ in FAR 1.1 and the plain language of FAR 91.319.

 


“Where a regulation and guidance conflict, the regulation controls,” the agency said. “Accordingly, owners of experimental aircraft and flight instructors who have operated experimental aircraft for the purpose of compensated flight training without obtaining an exemption, will [now] be required to obtain a LODA to remain compliant with the regulations.”

 


Despite the FAA’s attempt at clarification, NBAA said this policy represents a new interpretation of the meaning of “compensation.” Typically, commercial operations, which are not permitted under Part 91, are operations involving transportation for compensation or hire. The association said the agency is viewing certain types of flight instruction as “compensated,” and therefore not permitted under Part 91.

 


NBAA is also concerned that this new policy could lead to “regulatory creep” and affect other types of flight instruction, adding, “This is a significant departure from the FAA’s long-held belief that flight instruction is not a commercial air transportation activity.” According to the association, the FAA is considering rulemaking to address flight instruction in these categories of aircraft without requiring an exemption.

 


Regarding the LODA requirement, AOPA said, “Such a rule would put new barriers in place for owners seeking instruction in their own aircraft and discourage flight instructors qualified in various experimental aircraft from providing training.” Although the FAA heralded its electronic application process as a simple solution to the issue, “it is a solution to a problem the FAA has needlessly created—and one that does nothing to advance the mutual goals of improving safety and reducing barriers to resources that increase pilot proficiency.”

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