Senator Jim Inhofe (R-Okla.) and U.S. Rep. Sam Graves (R-Mo.) have introduced the Certainty for General Aviation Pilots Act of 2021 in both chambers of Congress to clarify “that individuals engaged in aircraft flight instruction or testing, including phased testing of experimental aircraft, are not operating an aircraft carrying persons or property for compensation or hire.”
The bills were introduced July 22, 2021, to reverse the damaging impact of an FAA directive that, as of July 12, requires pilots who receive training in experimental aircraft to obtain a Letter of Deviation Authority (LODA) from the FAA. The instructor who receives compensation also must obtain a LODA.
Pilots and instructors engaged in compensated instruction in limited category aircraft or the handful of primary category aircraft in the registry must obtain a regulatory exemption (not the same as the LODA process but providing the necessary permission) before conducting training. Those training in aircraft with a standard airworthiness certificates are not affected by the new directive.
The need for a remedy arose after a federal court upheld an FAA cease-and-desist order against a Florida company, Warbird Adventures, that the FAA said was providing paid instructional flights in a Curtiss P–40 Warhawk, an airplane with a limited category airworthiness certificate. The decision stated — incorrectly, say general aviation advocacy groups — that “when the student is paying for the instruction, the student is being carried ‘for compensation.’”
The directive triggered uncertainty in the pilot community that has generally understood flight training to be entirely unrelated to flying an aircraft for compensation or hire. The FAA also said money is not the only form of compensation instructors can benefit from.
“The bureaucratic response from the FAA’s legal office actually impedes safety, which is unacceptable. We will work with our industry partners and our membership to support legislation in Congress so we can bring clarity and coherence to this whole issue,” said Aircraft Owners and Pilots Association (AOPA) President Mark Baker.
On the introduction of the identical bills in the House and Senate, Graves, the House Transportation and Infrastructure Committee Republican Leader, issued a statement calling for the FAA to return to a “common sense” policy.
“The FAA’s recent change to its longstanding legal guidance on flight training put 40,000 general aviation pilots in regulatory non-compliance overnight,” he said. “Besides creating a significant amount of confusion, the FAA needlessly added more bureaucratic red tape for pilots that does nothing to improve aviation safety. In fact, the FAA’s actions are actually creating safety concerns because they undermine a basic principle of aviation safety that a pilot should be trained in the aircraft he or she will be flying. This bill restores the FAA’s previous common sense interpretation of these flight training regulations and reestablishes a system which had been in place and working for decades.”
Inhofe, the bill’s lead sponsor in the Senate, said the legislation would eliminate unnecessary regulatory burdens.
“America’s aviation community is vital to our nation,” he said. “That’s why I introduced the Certainty for General Aviation Pilots Act, legislation that will remove needless bureaucratic burdens that hinder pilots from flying aircraft tomorrow that they were able to fly yesterday. This bill would remove new and unnecessary regulations and get pilots safely back to the skies. I am proud to fight for their priorities in Congress and I look forward to working to getting this bill signed into law.”
The bottom line
Since July 12 anyone providing or receiving flight instruction in an experimental, limited, or primary category aircraft is at legal risk if they do not have a LODA (experimental aircraft) or exemption (limited or primary category aircraft) in place before conducting or receiving training, according to AOPA officials.