Having trouble figuring out what’s going on with the new FAA policy on flight training? With headlines screaming “flight training at risk,” it’s a complicated story that is fast moving.
Here’s what general aviation’s top advocates are saying about the new policy, which went into effect July 12, 2021:
A stunning about-face
Officials with the Experimental Aircraft Association report they continue to “push the FAA for a legitimate solution to the harm and confusion the agency has created with its recent interpretation involving compensated flight training in Experimental, Limited, and Primary Category aircraft.”
“The FAA did an unexpected and stunning about-face from decades of standard policy with the change, disregarding longstanding aviation safety practices,” officials said in a recent post on the association’s website.
The new policy confirms the FAA’s assertion that, without exception, no compensated flight training can take place in these aircraft categories without an exemption or letter of deviation authority (LODA).
It also confirms the FAA’s position that any instructor is “operating” an aircraft, regardless of who owns, rents, or otherwise uses the aircraft, and regardless of whether the use of the aircraft is compensated. Therefore, paying any instructor to provide training violates the language of FARs 91.315 (Limited), 91.319(a)(2) (Experimental), and 91.325 (Primary).
“For as long as can be remembered, the FAA rules were interpreted as an instructor could usually not charge for the use of the aircraft, but could charge for flight instruction services. FAA’s own policy on LODAs backed this up, explicitly stating that such private individuals did not require a LODA to pursue training in their own aircraft. While a commercial flight training operation could not provide the training, an individual instructor could provide training for a private owner, co-owner, flying club member, or lessee,” EAA officials explained.
But in the new policy, FAA officials said the agency’s previous policy on LODAs was “erroneous.”
“The stunning turnabout meant that tens of thousands of rule-abiding warbird, homebuilt, vintage, and other pilots and instructors are instantly out of compliance with the Federal Aviation Regulations,” EAA officials noted. “The FAA’s only acknowledgement of this radical change for the GA community was the statement ‘The FAA acknowledges that the disconnect between the regulations and the guidance to inspectors has caused confusion in the industry.’”
However, EAA officials point out that the new LODA policy does not help owners of Limited and Primary category aircraft, as the rules associated with these categories do not contain a LODA provision. These aircraft and their owners will require exemptions. The exemption requirement for Primary category is particularly frustrating, as the category was specifically created to allow flight training as stated in the rule’s preamble, EAA officials noted.
“This LODA/exemption process is not a permanent solution. It is cumbersome, can easily be taken away, and is a solution to a nonexistent problem,” said Jack Pelton, EAA CEO and chairman of the board. “Under no circumstances is a private individual who receives training in their own aircraft detrimental to safety. EAA will continue seeking a rule change or legislation to permanently restore the longstanding and common sense ‘facts on the ground’ for the GA community.”
“This entire episode is a scary example of how new interpretations of the regulations can upend the entire community,” he continued. “While this short-term fix allows operations to continue, it never should have come to this point. Creating more than 30,000 new LODAs and exemptions is a paperwork exercise that does nothing to advance safety.”
EAA has created a FAQ page to address questions about the new policy.
But Wait, It Gets Worse
While the new policy is confusing, there’s even more in the July 12 directive to unpack.
According to the Aircraft Owners and Pilots Association, the FAA is prosecuting flight instructors who volunteered their time instructing in limited category aircraft and didn’t receive a penny for doing so, arguing the volunteers had received compensation.
“The FAA can’t have it both ways while claiming it is clarifying the situation. This is contrary to the FAA’s mission and obligation to promote safe flight,” said AOPA President Mark Baker.
Last week FAA prosecutors quoted FAA Advisory Circular 61-142, “defining ‘compensation’ as the receipt of anything of value that is contingent on the pilot operating the aircraft… [it] does not require a profit, profit motive, or actual payment of funds. … accumulation of flight time and goodwill in the form of expected future economic benefits can be considered compensation. Furthermore, the pilot does not have to be the party receiving the compensation; compensation occurs even if a third party receives a benefit as a result of the flight.”
The FAA alleged volunteer instructors received compensation by “accumulating flight time” and “generating goodwill.”
“In other words, the FAA believes giving away your time and talent equates to compensation,” AOPA officials said.
While pilots and flight instructors receiving and giving instruction in standard category aircraft are not affected by this recent move, it is a roadblock for those seeking instruction in these three specific categories of aircraft, potentially causing some to forego proper training and therefore impacting safety, AOPA officials noted.
Until July 12, the FAA never required students who provided experimental aircraft to have a LODA to receive flight training and flight reviews. Now the FAA “clarified” that owners and operators of more than 39,000 experimental aircraft, as well as the CFIs who provide instruction in them, need LODAs in place to receive or give “compensated” instruction in those aircraft.
“But in reality, it doesn’t appear to matter if no money is exchanged for instruction in limited, experimental, or primary aircraft; the FAA can and is arguing that anything is ‘compensation’ solely because the FAA labels it so, and that it can prosecute a flight instructor for someone else receiving ‘compensation,’ even if the instructor receives none,” AOPA officials said. “The overreach and refusal to draw limits is breathtaking.”
So, what does this mean for pilots who want to receive a flight review or transition training or just brush up on techniques with an instructor in their limited, primary, or experimental category aircraft? And what does this mean to the instructors who want to teach them?
To stay out of the FAA’s legal crosshairs until the courts decide whether the FAA’s legal arguments are winning ones, you’ll need to get the FAA’s permission first. For training in experimental aircraft, that means obtaining a Letter of Deviation Authority, as outlined in the July 12 directive. For limited and primary category aircraft, that means obtaining an exemption.
“We will continue to probe the FAA for answers to these questions while also working through whatever means necessary to remove these impractical barriers to training,” AOPA officials added.
What are Flight Instructors Saying?
Officials from the Society of Aviation and Flight Educators (SAFE) have protested the new policy, urging the FAA to “expedite a final ruling preserving the instructor’s historic role as “educator” and not “charter pilot.”
“Adopting the broader interpretation implied in this court’s recent decision would create irrevocable harm to our industry and diminish aviation safety,” officials said.
“The FAA met with all ‘the alphabets’ and the current solution in place is a quick and easy LODA (Letter of Deviation Authority) for every experimental,” SAFE officials informed the association’s members. “Since this is a big list, the FAA recommends those with the greatest need apply first to keep everyone flying and space out the demand cycle.”
Officials with the Flight School Association of North America (FSANA) agree the policy has “created quite a stir,” raising fears that training will be difficult or not possible to obtain in these categories, especially experimental category aircraft.
“Many in the industry, including FSANA, are concerned that this is actually going to reduce safety for operators of these aircraft if we inhibit the ability of owners and operators to receive training in aircraft that are frequently used,” officials said.
“FSANA is working with other industry associations and our own legal team to determining if other relief or solutions for this policy are possible,” officials said. “We recognize the challenge this provides, the potential safety reduction it may create and are focused on helping the FAA, the industry, instruction providers, and operators of the affected aircraft find a solution that will work for the longer term.”
How do you get a LODA?
“The owner of an experimental aircraft or a flight instructor will simply need to provide the requisite information from the federal register notice in an email to 9-AVS-AFG-LODA@faa.gov,” FAA officials told aviation advocates. “Once received, it will be processed in days and the applicant will receive the signed LODA from his or her respective Flight Standards District Office.”
I doubt that we can blame the current administration for this fiasco. The FAA moves so slowly that this policy probably originated when Herbert Hoover was president and has been trickling, seeping, oozing through the bureaucracy ever since and has now finally come to a festering head.
Always remember, politicians come and go, staff endures . . .
Mike is correct… this destructive policy virus at FAA started decades ago, and has been nearly impossible to change or stamp out, regardless of who has been AOA-1. Don Engen tried heroically decades ago, as did Russ Chew at ATS… and neither were able to make much progress, …ever since Eisenhower, or President Reagan had the courage to “take on” the Jurassic ATS lobby. It’s going to take a very courageous Administrator, likely with the support of a Presidential Commission (like the Curtis Commission back in the Eisenhower era) to ever make substantial progress on reorganizing, reorienting, and fixing a very broken FAA.
FAA’s recent policy and legal determination on this flight instruction issue and use of LODAs is nothing short of counterproductive, anti-safety, and absurd. The revised policy is as misguided as FAA’s continued failure to update outdated and counterproductive rules, fouled up drone policies, unnecessary overly constrained medical requirements, and a massively obsolete, ridiculously unnecessarily complex, overly expensive and inefficient air traffic system (ATS). That said, this FAA misguided direction is entirely consistent with this Administration’s broader dysfunctional wasteful “obsolete pork train loving” DOT, failed southern border, incompetent foreign policy, and disastrously flawed economic energy and environment policies, that via inflation and taxes, will ultimately crush low end GA.
As a certified airmen…i am bound by the FAR’s……..what legal bearing does a FAA internal “ORDER” have upon a certified airmen…..it is not an FAR ???
If they FAA ramp checked me and finds violations…they will cite FAR’s …not internal orders?
They will violate you. You will ask for a court ruling. It will go to an Administrative Law Judge who works for the FAA, who will read the FAA’s interpretations and go along with them. You may be able to appeal, but even in the very unlikely event that you get in front of an actual law judge, they will almost certainly defer to the FAA’s interpretation of the regulation.
So, yes, internal orders are effectively the law.
Let’s all “settle down”, OK?
People are “violated” only when it has been established if, when and where specific codified regulations have been violated — and that’s it.
Secondly, the ALJ does not “work for the FAA.”
Thirdly, every ruling — up through a Constitutional implication itself — is subject to “challenge” and is “appealable.” Unfortunately, this appeals process depends on how deep your pockets are. But even so, this is where the “alphabet” groups (AOPA, etc.) are supposed to chime-in and advocate for you and your (supposedly legitimate) position.
Fourth, higher courts overruling a lower court happens all the time. A “win” depends on how agile and “deft” your attorney is.
Lastly, “internal orders” (I’m assuming you mean FSIMS.FAA.GOV) are for the purpose of inspectors and other personnel applying standardization across the board when dealing with the public (Flight “Standards”). These “internal orders” are not “regulatory” (i.e., do not require a NPRM to implement them), are procedural in nature, and are subject to change at any time.
Cheers!
If the FAA is calling accumulation of flight time or “good will” as compensation, what does this do to humanitarian flights like Angel Flight or Pilots&Paws? Will you now need a commercial certificate to make these flights since in the eyes of the FAA, you are being compensated? I know this doesn’t apply to the current flight instruction issue, but I could see them applying the same definition of compensation to other parts of flying.
The ramifications of this interpretation are truly disturbing. If the rescue dog licks your hand, you have been compensated. If the Angel Flight patient smiles at you, you have been compensated…..
Worse yet, you can’t avoid compensation. If I fly for lunch with my wife and she kisses me at the end of the day, have I been flying in violation of my Sport Pilot rating?
This is ridiculous. The FAA needs to be forced to walk back to the meaning of the reg, and not to some fever-dream interpretation that clearly makes nonsense of much of the rest of 14 CFR – after all, if anything and everything is “compensation” then all the regs that refer to “for compensation” make no sense, because they imply the possibility of “not for compensation” which the FAA has essentially said is impossible.
Better yet, it’s time for the FAA to be removed from regulating light aviation (or at least given fully-authorized competition). If it has 6 seats or fewer, isn’t held out to the public other than for (bona fide) flight instruction, and doesn’t operate above 25,000′, let industry groups regulate it. The FAA is clearly out of its depth with commercial aircraft anyway (cough, “MAX”, cough) and these recent “interpretations” show it has lost its way in light aviation too. Time to reduce its workload and let it focus, no?
FAA wonders why pilots don’t trust them.
This policy change fits right in with Biden overall goal of more gov’t control.
Making sense out of what this administration is pushing will be difficult. Having more control over non-certified aircraft seems to clearly be an objective. The question is why?
Because they want control of everything. The true communist objective.
Don’t forget the FAA motto:
“We’re not happy till you’re not happy”