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.”