Public Aircraft Logging of Flight Time, Training in Certain Aircraft Holding Special Airworthiness Certificates, and Flight Instructor Privileges, 41194-41222 [2023-12600]
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Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61 and 91
[Docket No. FAA–1351; Notice No. 23–09]
RIN 2120–AL61
Public Aircraft Logging of Flight Time,
Training in Certain Aircraft Holding
Special Airworthiness Certificates, and
Flight Instructor Privileges
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
As directed by the FAA
Reauthorization Act of 2018, the FAA
proposes to allow pilots conducting
public aircraft operations (PAO) to
credit their flight time towards FAA
civil regulatory requirements.
Additionally, consistent with the James
M. Inhofe National Defense
Authorization Act for 2023 (2023
NDAA), the FAA proposes to amend the
operating rules for experimental aircraft
to permit certain flight training, testing,
and checking in these aircraft without a
letter of deviation authority (LODA).
The FAA proposes to extend the same
relief to certain flight training, testing,
and checking in limited category,
primary category, and experimental
light sport aircraft. The FAA also
proposes miscellaneous amendments
related to recent flight experience, flight
instructor privileges, flight training in
certain aircraft holding special
airworthiness certificates, and the
related prohibitions on conducting these
activities for compensation or hire.
These proposed changes will clarify
existing regulatory requirements, align
the regulations with current industry
practice, and ensure compliance with
the FAA Reauthorization Act of 2018
and the 2023 NDAA.
DATES: Send comments on or before
August 22, 2023.
ADDRESSES: Send comments identified
by docket number FAA–2023–1351
using any of the following methods:
• Federal eRulemaking Portal: Go to
www.regulations.gov and follow the
online instructions for sending your
comments electronically.
• Mail: Send comments to Docket
Operations, M–30; U.S. Department of
Transportation (DOT), 1200 New Jersey
Avenue SE, Room W12–140, West
Building Ground Floor, Washington, DC
20590–0001.
• Hand Delivery or Courier: Take
comments to Docket Operations in
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SUMMARY:
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Room W12–140 of the West Building
Ground Floor at 1200 New Jersey
Avenue SE, Washington, DC, between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
• Fax: Fax comments to Docket
Operations at (202) 493–2251.
Privacy: In accordance with 5 U.S.C.
553(c), DOT solicits comments from the
public to better inform its rulemaking
process. DOT posts these comments,
without edit, including any personal
information the commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy.
Docket: Background documents or
comments received may be read at
www.regulations.gov at any time.
Follow the online instructions for
accessing the docket or go to the Docket
Operations in Room W12–140 of the
West Building Ground Floor at 1200
New Jersey Avenue SE, Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Jabari Raphael, General Aviation and
Commercial Division, Flight Standards
Service, Federal Aviation
Administration, 800 Independence
Avenue SW, Washington, DC 20591;
(202) 267–1088; email Jabari.Raphael@
faa.gov.
SUPPLEMENTARY INFORMATION:
List of Abbreviations and Acronyms
Frequently Used in This Document
ATC Air Traffic Control
ELSA Experimental Light-Sport Aircraft
ICAO International Civil Aviation
Organization
IFR Instrument Flight Rules
LODA Letter of Deviation Authority
NAS National Airspace System
NPRM Notice of Proposed Rulemaking
NTSB National Transportation Safety Board
PAO Public Aircraft Operation
PIC Pilot-in-command
SIC Second-in-command
SLSA Special Light-Sport Aircraft
VFR Visual Flight Rules
Table of Contents
I. Executive Summary
II. Authority for the Rulemaking
III. Logging Flight Time, Recent Flight
Experience, and Flight Instructor
Privileges
A. Logging Flight Time in Public Aircraft
Operations (§ 61.51)
B. Recent Flight Experience (§ 61.57)
C. Flight Instructor Privileges (§§ 61.193
and 61.413)
IV. Aircraft Holding Certain Special
Airworthiness Certificates
A. Background: Emergency Cease and
Desist Order, Litigation, and FAA Notice
B. Part 91 Regulations Governing the
Operation of Aircraft With Certain
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Airworthiness Certificates (§§ 91.315,
91.319, 91.325, and 91.327)
C. Flight Training, Checking, and Testing
(§ 91.326(a))
D. LODA Framework (§ 91.326(b) and (c))
V. Regulatory Notices and Analyses
A. Regulatory Evaluation
B. Regulatory Flexibility Determination
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
C. Executive Order 13609, International
Cooperation
VII. Additional Information
A. Comments Invited
B. Confidential Business Information
C. Electronic Access and Filing
I. Executive Summary
As directed by section 517 of the FAA
Reauthorization Act of 2018 (Pub. L.
115–254), the FAA proposes to allow
pilots conducting public aircraft
operations (PAO) under Title 49 of the
United States Code (U.S.C.) 40102(a)(41)
and 40125 to credit their flight time
towards FAA civil regulatory
requirements. While section 517
requires the FAA to issue regulations to
allow the logging of flight time in
aircraft used in PAO under direct
operational control of forestry and fire
protection agencies, the FAA proposes
to more broadly consider all PAO for
flight time. Moreover, the FAA proposes
to expand the regulatory framework to
allow pilots serving in PAO as second
in command to log flight time, under
certain circumstances. Enabling pilots to
log SIC time while operating a PAO
encourages the use of a second pilot
where one may not be required and
increases overall safety in the NAS.
The FAA also proposes to clarify
recent flight experience requirements
and the authorized flight training
activities under part 61. The FAA
proposes to add § 61.57(e)(5) to codify
an exception that, in certain
circumstances, would enable a person
receiving flight training to act as PIC,
even if that person does not meet the
recent flight experience requirements
for carrying passengers under § 61.57(a)
or (b). Additionally, the FAA proposes
to add ‘‘maintaining or improving skills
for certificated pilots’’ to the list of flight
instructor privileges found in
§§ 61.193(a)(7) and 61.413(a)(6) to
clarify that flight instructors are
authorized to conduct certain
specialized and elective training.
The proposed rule would also amend
part 91 operating rules to clarify
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prohibited operations and create limited
exceptions to the general prohibition on
carriage of persons for compensation or
hire for flight training, testing, and
checking in aircraft holding certain
special airworthiness certificates.
Currently, part 91 regulations broadly
prohibit a person from operating certain
aircraft with special airworthiness
certificates (i.e., limited category,
experimental, or primary category
aircraft) 1 carrying persons and property
for compensation or hire. These part 91
regulations use broad terms that the
FAA has defined either in regulation
(i.e., operate, person) or through
interpretation and guidance (i.e.,
compensation). The broad language in
these regulations was the subject of
recent litigation 2 that identified a
discrepancy between the plain language
of the regulation and the FAA’s
longstanding application of the
regulation to certain flight training
activity. Therefore, the FAA initiated
this rulemaking to remove the
requirement for owners (and certain
persons affiliated with owners) to obtain
a LODA to accomplish flight training in
their aircraft and to clarify the general
prohibition on operating aircraft with
certain special airworthiness certificates
while carrying persons or property for
compensation or hire.
During the development of this
NPRM, President Joseph R. Biden, Jr.
signed into law the James M. Inhofe
National Defense Authorization Act for
2023 (2023 NDAA), which included a
self-implementing provision that
amended the operating rules to permit
certain flight training, testing, and
checking in experimental aircraft
without a letter of deviation authority
(LODA). The FAA proposes to extend
the same relief to certain flight training,
testing, and checking in limited
category, primary category, and
experimental light sport aircraft. The
FAA anticipates that the proposed
changes will provide greater access to
specialized training in aircraft with
special airworthiness certificates.
The FAA analyzed the costs and
benefits for the provisions related to
PAO and the provisions related to
training, testing, and checking in certain
aircraft with special airworthiness
certificates separately. The provisions
1 Section 21.175(b) identifies special
airworthiness certificates as primary, restricted,
limited, light-sport, and provisional airworthiness
certificates, special flight permits, and experimental
certificates.
2 Warbird Adventures, Inc. v. Fed. Aviation
Admin., Petition for Review from an Emergency
Cease and Desist Order Issued by the Federal
Aviation Administration on July 28, 2020, Doc. No.
1854466 (D.C. Cir. 2020).
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related to PAO impose no new costs and
the FAA expects the proposal will
reduce the costs for pilots conducting
PAO to maintain their civil certificates
and ratings.3 The provisions related to
training, testing and checking impose
approximately $100,000 in total onetime costs (undiscounted) over a period
of two years. These costs stem from the
requirement for current LODA holders
who broadly offer certain aircraft with
special airworthiness certificates for
training to reapply within two years of
the effective date. However, the FAA
expects the cost savings from the
elimination of LODA requirements for
pilots receiving training in their own
aircraft, the streamlined regulatory
framework, and the safety benefits from
greater access to specialized training in
aircraft with special airworthiness
certificates to exceed the initial costs.
Overall, the FAA concluded that this
proposal would enhance safety with
minimal impact on cost.
II. Authority for the Rulemaking
The FAA’s authority to issue rules on
aviation safety is specified in Title 49 of
the United States Code. Subtitle I,
Section 106 prescribes the authority of
the FAA Administrator. Subtitle VII,
Aviation Programs, describes the scope
of the FAA’s authority in more detail.
The FAA is proposing this rulemaking
under the authority described in
Subtitle VII, Part A, Subpart iii, section
44701, General Requirements; section
44702, Issuance of Certificates; and
section 44703, Airman Certificates.
Under these sections, the FAA
prescribes regulations and minimum
standards for practices, methods, and
procedures the Administrator finds
necessary for safety in air commerce.
The FAA is also authorized to issue
certificates, including airman
certificates, and medical certificates, to
qualified individuals. This rulemaking
proposal is within the scope of that
authority.
Furthermore, section 517 of Public
Law 115–254, Public Aircraft Eligible
for Logging Flight Times, directs the
Administrator to revise 14 CFR
61.51(j)(4) to include aircraft under
direct operational control of forestry and
fire protection agencies as public
aircraft eligible for logging flight times.
The FAA also proposes to codify section
3 The
FAA does not maintain counts of pilots
who fly PAO for federal, state, and local
governments and there is insufficient data for the
FAA to estimate the number of pilots affected by
this proposal. See ‘‘How to Become a Government
Pilot’’ in Flying Magazine by James Wynbrandt,
Dec. 13, 2017. Available at: https://
www.flyingmag.com/how-to-become-governmentpilot/ Last accessed Jul. 22, 2022.
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5604 of the 2023 NDAA, which directs
that under certain conditions, flight
training, testing, and checking in
experimental aircraft does not require a
LODA from the FAA.
III. Logging Flight Time, Recent Flight
Experience, and Flight Instructor
Privileges
In 14 CFR part 61, the FAA proposes
to modify §§ 61.51, 61.57, 61.193, and
61.413. First, the FAA proposes to
modify § 61.51 to expand PAO under
which a pilot may credit flight time
towards FAA civil regulatory
requirements. Second, the FAA
proposes to modify § 61.57(e) to include
an exception to the recent flight
experience requirements for flight
instructors and certificated pilots while
conducting flight training for the
purpose of meeting recent flight
experience requirements. Third, the
FAA proposes to modify §§ 61.193 and
61.413 to clarify the privileges an
authorized flight instructor may exercise
within the limits of their certificate.
A. Logging Flight Time in Public Aircraft
Operations (§ 61.51)
1. Aircraft Requirements for Logging
Flight Time
As specified in 14 CFR part 61, pilots
must document and record certain
aeronautical experience.4 Section 61.51
provides the requirements for logging
aeronautical experience for airman
certificates, ratings, privileges, and
flight experience. In particular,
§ 61.51(j) specifies the aircraft
requirements for logging flight time.
Section 61.51(j) states that, for time to
be logged, it must be acquired in an
aircraft that is identified as an aircraft
under § 61.5(b) 5 and is (1) an aircraft of
U.S. registry with either a standard or
special airworthiness certificate, (2) an
aircraft of foreign registry with an
airworthiness certificate that is
approved by the aviation authority of a
foreign country that is a Member State
to the Convention on International Civil
Aviation Organization (ICAO), (3) a
military aircraft under the direct
operational control of the U.S. Armed
Forces, or (4) an aircraft engaged in a
public aircraft operation (PAO) while
engaged on an official law enforcement
4 Section 61.51(a) specifies that certain training
time and aeronautical experience must be
documented and recorded in a ‘‘form and manner
acceptable to the Administrator.’’ Often, this is
accomplished through maintaining a logbook.
5 Section 61.5(b) lists the aircraft ratings that are
placed on pilot certificates issued under part 61.
The ratings include category ratings (e.g., airplane,
rotorcraft) and class ratings (e.g., multiengine land,
helicopter).
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flight for a Federal, State, county, or
municipal law enforcement agency.
The FAA added § 61.51(j) in 2009,
after Congress passed Public Law 106–
424.6 Section 14 of Public Law 106–424
specified that an aircraft must hold an
airworthiness certificate, with some
exceptions, for a pilot to log flight time
to meet the certificate, rating, or recent
flight experience requirements under
part 61.7 Before promulgation of
§ 61.51(j), the FAA did not expressly
prescribe in regulation aircraft or
airworthiness requirements for when a
pilot may log flight time.8 In earlier
versions of the regulation, the type of
aircraft that could be flown to log flight
time was not specified. Rather, FAA
guidance to inspectors stated that,
‘‘[u]nless the vehicle is [type
certificated] as an aircraft in a category
listed in § 61.5(b)(1) or as an
experimental aircraft, or otherwise
holds an Airworthiness Certificate,
flight time acquired in such a vehicle
may not be used to meet requirements
of part 61 for a certificate or rating or to
meet the recency-of-experience
requirements.’’ 9
Given the specific mandate from
Congress, in § 61.51(j), the FAA codified
its existing guidance, added a provision
for logging time in military aircraft, and
as directed by the legislation, included
§ 61.51(j)(4) to permit individuals to log
flight time in aircraft used in PAO for
official law enforcement activities.
The current language of § 61.51(j)(4)
applies only to law enforcement pilots
and does not permit other pilots who
conduct PAO to credit flight time
toward FAA requirements if the aircraft
does not also meet another provision
under § 61.51(j). Section 517 of the FAA
Reauthorization Act of 2018, Public Law
115–254 (section 517) directs the FAA
to expand PAO logging opportunities by
permitting pilots to log flight time in
aircraft under the direct operational
control of forestry and fire protection
agencies when conducted as PAO.
Notwithstanding the limited scope of
section 517, the FAA is proposing to
6 Public Law 106–424, section 14, Crediting of
Law Enforcement Flight Time (Nov. 1, 2000). In
determining whether an individual meets the
aeronautical experience requirements imposed
under section 44703 of Title 49, United States Code,
for an airman certificate or rating, the Secretary of
Transportation shall take into account any time
spent by that individual operating a public aircraft
as defined in section 40102 of Title 49, United
States Code, if that aircraft is—(1) identifiable by
category and class; and (2) used in law enforcement
activities.
7 Pilot, Flight Instructor, and Pilot School
Certification, 74 FR 42499 (Aug. 21, 2009).
8 Pilot, Flight Instructor, and Pilot School
Certification, 74 FR 42499, 42515 (Aug. 21, 2009).
9 FAA Order 8900.1, Volume 5, Chapter 2,
Section 5, Paragraph 5–316B.
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amend § 61.51(j)(4) to allow logging of
flight time for pilots engaged in any
PAO in accordance with 49 U.S.C.
40102(a)(41) and 40125(a)(2). This
proposal would expand § 61.51(j)(4) not
only to law enforcement and forestry
and fire protection services as directed
by Congress, but to any PAO including,
but not limited to, those involving
national defense, intelligence missions,
search and rescue, aeronautical
research, and biological or geological
resource management.
This proposal would also broaden the
scope of aircraft requirements in
§ 61.51(j) for logging flight time. The
FAA recognizes that the 2009 rule
change, which codified these
requirements in response to section 14,
prohibited individuals conducting PAO,
with the exception of law enforcement
personnel, from logging flight time
unless the aircraft could meet another
provision under § 61.51(j). The FAA
now proposes to eliminate this
distinction between law enforcement
personnel and all other individuals
engaged in PAO by allowing logging of
flight time for PAO conducted in aircraft
other than those listed in § 61.51(j)(1)
through (3).
The FAA finds that amending the
regulatory language to include all
aircraft engaged in PAO would not
adversely affect safety. PAO already
occur within the national airspace
system (NAS), and the FAA is now
proposing to allow pilots to credit these
operations towards certain civil
regulatory requirements under part 61
like total flight time and recent flight
experience.
Flight experience gained during PAO
is relevant to a pilot’s qualifications and
currency under FAA regulations.
Whether a pilot is engaged in civil or
public aircraft operations, the pilot must
follow flight rules in part 91. The pilots
engaged in PAO interact with air traffic
control (ATC) and aircraft in the NAS
the same as those engaged in civil
aircraft operations. In addition, pilots
conducting PAO abide by the same rules
governing airspace classifications, rightof-way, aircraft speed, and airspace
restrictions. Pilots conducting PAO also
must act consistently with FAA weather
minima, minimum altitude
requirements, instrument approach
procedures, and other operating rules
applicable to certain persons and
aircraft. Pilots conducting PAO also
employ many of the same aeronautical
skills and accomplish the same flight
time as their counterparts performing
civil operations, including takeoffs and
landings, visual and instrument
procedures, risk management, and
enroute operations.
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The FAA understands that pilots
engaged in PAO may have been
memorializing their flight time in
accordance with the requirements of the
government entities under which they
operate, even though the FAA does not
currently recognize this time under
§ 61.51 to satisfy civil regulatory
requirements. Those pilots who have
not documented this time may begin
recording their PAO flight time in
accordance with this proposed rule in
the event that this proposed rule
becomes final. In this regard, the
proposed modification would permit
PAO pilots to credit their recorded flight
time towards satisfying FAA
requirements retroactively. Any prior
PAO aeronautical experience logged by
a pilot must meet the requirements in
§ 61.51.
Although a pilot’s total time may be
used to meet certain flight time
requirements for certificates, ratings, or
recent flight experience, like that
required for § 61.57, the FAA notes that
flight time in PAO may not satisfy all
part 61 requirements, such as a flight
review, a pilot-in-command (PIC)
proficiency check, or practical test.
However, the recorded time may not be
creditable toward any pilot qualification
or requirement if the rule does not
become final.
Finally, the FAA notes that, a pilot
logging flight time is responsible for
knowing whether they are engaging in
operations that are PAO or civil
operations.
2. Second-in-Command Flight Time in
Aircraft Engaged in Public Aircraft
Operations
The current second-in-command (SIC)
logging regulations do not adequately
address aircraft used in PAO that do not
also hold airworthiness certificates
issued by the FAA. For example, the SIC
logging requirements in § 61.51(f)
permit a person to log time as SIC based
on the number of pilots required by the
type certification of the aircraft or the
regulations under which the flight is
conducted. In addition, since 2018, part
135 SICs who are not required by the
type certification of the aircraft or the
part 135 operating rules also may log
SIC flight time under § 61.51(f)(3) as
part of an approved SIC professional
development program (SIC PDP)
consistent with the requirements in
§ 135.99(c).10 For aircraft exclusively
used in PAO that do not hold
airworthiness certificates, there may be
no type certificate designating that two
pilots are required. In addition, PAO are
not subject to FAA regulations on SIC
10 83
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requirements (e.g., § 91.531). As such,
under § 61.51(f), an assigned second
pilot in a PAO does not meet the
requirements to log SIC time.
While section 517 is silent as to how
pilot time may be logged, whether as
PIC or SIC, the FAA now proposes to
clarify the pilot time that may be logged
to meet FAA requirements in response
to questions from the regulated
community. Pilots conducting qualified
PAO are not required to meet FAA pilot
certification requirements. Instead, the
government entity may develop its own
pilot qualification requirements for
these operations. Therefore, the FAA
proposes to explicitly allow the logging
of SIC time during PAO, with certain
limitations, to encourage safety and
promote consistency with the regulated
community.
To determine the appropriate scope of
the proposal regarding SIC logging
during PAO, the FAA considered the
requirements set forth in § 91.531 and
14 CFR part 135. For operations under
part 91, § 61.51(f) allows a pilot to log
SIC time in those airplanes when
operating in accordance with
§ 91.531(a). Section 91.531 specifies
requirements to operate with an SIC in
certain airplanes, such as those type
certificated for more than one required
pilot, large airplanes, and commuter
category airplanes. Likewise, for a part
135 pilot to log SIC time under
§ 61.51(f), a second pilot must either be
required by the aircraft type certificate,
operating rule, or as prescribed in
§ 135.99.11 These operating rules under
which a pilot may log SIC time are
established based on complexity of the
operation. Examples of aircraft that may
require additional flightcrew members
include large aircraft or turbojetpowered airplanes, or complex
operations such as part 135 passenger
carriage under instrument flight rules.
Often, large aircraft 12 and turbojetpowered airplanes have a requirement
for a second pilot listed in the
limitations section of the flight manual
or on the type certificate data sheet, if
applicable. Section 91.9 requires that a
person must operate a civil aircraft in
11 Section 135.99(a) provides that no certificate
holder may operate an aircraft with less than the
minimum flight crew specified in the aircraft
operating limitations or the Aircraft Flight Manual
for that aircraft. Paragraph (b) states that no
certificate holder may operate an aircraft without a
second in command if that aircraft has a passenger
seating configuration, excluding any pilot seat, of
ten seats or more. Paragraph (c) establishes the SIC
PDP, which permits a pilot employed by the
certificate holder to log SIC flight time under
certain conditions for operations conducted under
parts 91 and 135.
12 See 14 CFR 1.1 defining ‘‘large aircraft’’ as
‘‘aircraft of more than 12,500 pounds, maximum
certificated takeoff weight.’’
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accordance with the aircraft flight
manual.
Since aircraft used in PAO might not
hold an airworthiness certificate, there
may be no associated aircraft flight
manual or type certificate. Additionally,
the FAA regulations governing crew
complement discussed earlier do not
apply to PAO. Finally, because a PAO
is not a part 135 operation, the part 135
operating rules (i.e., § 135.99(c)) that
allow for logging SIC time are
unavailable to PAO pilots.
As previously discussed, certain
aircraft used in civil operations require
a second pilot for safety due to design
complexity or operational requirement.
Enabling pilots to log SIC time while
operating a PAO encourages the use of
a second pilot where one may not be
required and increases overall safety in
the NAS. In addition, the presence of a
second pilot onboard the aircraft
provides additional resources to reduce
PIC workload during critical phases of
flight, monitor for emergency
circumstances, survey weather
conditions, and ensure safe operations.
Thus, the FAA seeks to encourage the
presence of a second pilot in aircraft
that would otherwise require a second
pilot under civil operations.
Consistent with the foregoing
discussion, the FAA proposes to enable
logging of SIC time to meet FAA
requirements in large aircraft and
turbojet powered airplanes. Likewise,
the FAA proposes that, if an aircraft
holds or held a type certificate that
requires a second pilot, PAO pilots may
also log SIC time. This proposal is
similar to the regulatory framework
under which pilots serving in civil
operations may log flight time 13 and,
therefore, would allow PAO pilots to
credit their flight time towards FAA
requirements in a similar manner to
pilots conducting civil operations. The
proposal would permit PAO pilots to
credit their recorded flight time towards
satisfying FAA requirements
retroactively.
Additionally, although PAO are
conducted outside of FAA aircraft and
airmen certification requirements and
certain safety oversight regulations, each
government entity is responsible for its
own pilot qualifications. For many
government entities, this includes
adopting the same standards as those
codified in 14 CFR to ensure pilot and
public safety. Logging flight time in
PAO also provides a record of the pilot’s
experience. By allowing pilots to credit
their time conducting PAO, the
proposed rule would enable the FAA to
review the totality of an individual
13 See
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pilot’s flight experience to satisfy civil
requirements. Likewise, enabling this
time to be credited toward civil
requirements will create efficiency for
affected pilots by removing the need for
duplicative flight time to be
accomplished. In turn, the FAA could
more effectively ensure and oversee
safety in the NAS. Accordingly, the
FAA proposes to add § 61.51(f)(4) to
clarify that a person designated as SIC
by a government entity may log SIC time
if the aircraft used was a large aircraft
as defined in § 1.1, a turbo-jet powered
airplane, or if the aircraft holds or
originally held a type certificate that
requires a second pilot.
The FAA reviewed the minimum
aeronautical experience requirements
for certification and ratings and found
that the proposed SIC logging time
should be limited to pilots seeking an
airplane transport pilot (ATP)
certificate. The FAA continues to find
that ATP hours are largely related to
building time and experience whereas
flight time necessary to meet minimum
aeronautical experience requirements
for private pilot, commercial, and
instrument rating is more directly
related to building specific skillsets.
Moreover, the required training and
aeronautical experience pilots
accumulate in order to obtain these
certifications and ratings are
fundamental building blocks necessary
for the development of proper
aeronautical decision-making and skills.
In this regard, the FAA does not
believe that pilots utilizing proposed
§ 61.51(f)(4) for building time towards
meeting the aeronautical experience
requirements for a private pilot
certificate, commercial certificate, and
instrument rating would be in the
interest of safety. This distinction is
supported by the fact that the
aeronautical experience requirements
for the ATP certificate explicitly enable
crediting of SIC time, whereas the
aeronautical experience requirements
for the private and commercial
certificates and instrument rating do not
explicitly reference SIC flight time.
Therefore, the FAA proposes adding
§ 61.51(f)(4)(i) to explicitly state that SIC
time logged under paragraph (f)(4) may
not be used to meet the aeronautical
experience requirements for the private
or commercial pilot certificates or an
instrument rating.
The FAA notes that ICAO standards
do not recognize the crediting of flight
time when a pilot is not required by the
aircraft certification or the operating
rules under which the flight is being
conducted. Accordingly, all pilots who
log flight time under this provision and
apply for an ATP certificate would have
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a limitation on the certificate indicating
that the pilot does not meet the PIC
aeronautical experience requirements of
ICAO. For this reason, the FAA
proposes to add § 61.51(f)(4)(ii) to
clearly delineate that an applicant for an
ATP certificate who logs SIC time under
§ 61.51(f)(4) is issued an ATP certificate
with the limitation, ‘‘Holder does not
meet the pilot in command aeronautical
experience requirements of ICAO,’’ as
prescribed under Article 39 of the
Convention on International Civil
Aviation if the applicant does not meet
the ICAO requirements contained in
Annex 1 ‘‘Personnel Licensing’’ to the
Convention on International Civil
Aviation. The FAA notes that an
applicant is entitled to an ATP
certificate without the ICAO limitation
specified under this provision when the
applicant presents satisfactory evidence
of having met the ICAO requirements
and otherwise meets the aeronautical
experience requirements of § 61.159.14
Additionally, to streamline the
proposed revisions to § 61.51(f) with
other pilots who apply for an ATP
certificate with an ICAO limitation, the
FAA proposes to amend §§ 61.159(e) 15
and 61.161(d) 16 to reference
§ 61.51(f)(4). This proposed revision to
the aeronautical experience
requirements of §§ 61.159 and 61.161
would allow a pilot to credit SIC time
logged under PAO toward the total time
for an ATP certificate.
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B. Recent Flight Experience (§ 61.57)
Section 61.57 contains recent flight
experience requirements to maintain
privileges to act as PIC under certain
scenarios, including requirements to
complete takeoffs and landings in order
continue to act as PIC of a flight that is
carrying passengers.17 The FAA
14 Section 61.159 specifies the aeronautical
experience requirement for obtaining an ATP
certificate with an airplane category and class
rating.
15 Section 61.159(e) specifics the activities that
necessitates the limitation ‘‘Holder does not meet
the pilot in command aeronautical experience
requirements of ICAO’’ on an ATP certificate with
an airplane category and class rating.
16 Section 61.161(d) specifics the activities that
necessitates the limitation ‘‘Holder does not meet
the pilot in command aeronautical experience
requirements of ICAO’’ on an ATP certificate with
a rotorcraft category and helicopter class rating.
17 Section 61.57(a)(1) states that no person may
act as PIC of an aircraft carrying passengers or of
an aircraft certificated for more than one pilot
flightcrew member unless that person has made at
least three takeoffs and three landings within the
preceding 90 days. Moreover, § 61.57(b)(1) specifies
that no person may act as PIC of an aircraft carrying
passengers during the period beginning one hour
after sunset and ending one hour before sunrise,
unless within the preceding 90 days, that person
has made at least three takeoffs and three landings
to a full stop during the period beginning one hour
after sunset and ending one hour before sunrise.
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proposes to add § 61.57(e)(5) to codify
an exception that, in certain
circumstances, would enable a person
receiving flight training to act as PIC,
even if that person does not meet the
recent flight experience requirements
for carrying passengers under § 61.57(a)
or (b). Specifically, the FAA proposes
that an otherwise qualified pilot could
act as PIC while receiving flight training
given by an authorized flight instructor
only for the purpose of meeting recent
flight experience requirements, even if
that person does not meet the
requirements of § 61.57(a) or (b). This
person must meet all other requirements
to act as PIC, except for the recent flight
experience requirements of § 61.57(a) or
(b), and the authorized instructor and
person receiving training must be the
sole occupants of the aircraft.
The FAA has published numerous
legal interpretations indicating the
aforementioned operations are already
permissible under existing regulations,
notwithstanding the prohibition on
passenger-carrying flights; however,
upon reconsideration, the FAA has
determined the plain text of the
regulations does not support the
conclusions in these interpretations. For
example, in the FAA Legal
Interpretation to Kris Kortokrax, Mr.
Kortokrax suggested that a flight
instructor who has not met the recent
night takeoff and landing experience in
§ 61.57(b) should be able to accompany
a pilot without being considered a
passenger.18 At that time, the FAA
agreed and stated this training may take
place even though neither pilot has met
the § 61.57(b) requirement. Similarly, in
the FAA Legal Interpretation to Roger
Schaffner, Mr. Schaffner asked whether
a flight instructor with an expired
medical could provide flight training to
a certificated pilot, even though the
person receiving instruction did not
comply with the recent flight experience
requirement of § 61.57.19 The FAA
asserted that the person receiving the
instruction could act as the PIC if that
person met all other requirements to act
as PIC, other than the recent flight
experience requirements of § 61.57(a) or
(b).
The FAA legal interpretations were
based on the unsupported conclusion
that a flight instructor and a person
18 The FAA addressed Mr. Kortokrax’s concerns
regarding night takeoff and landing experience for
a PIC. The scenario included a pilot, who meets the
rating and currency requirements except for
§ 61.57(b), seeking to have an authorized instructor
in the aircraft when the pilot attempts to meet the
requirements of § 61.57(b). Legal Interpretation to
Kris Kortokrax (Aug. 22, 2006).
19 Legal Interpretation to Roger Schaffner (May 5,
2014).
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receiving flight training are not
considered passengers to one another. In
the FAA Legal Interpretation to Kris
Kortokrax, the FAA stated that an
authorized instructor providing flight
training in an aircraft is not considered
a passenger with respect to the person
receiving training, even where the
person receiving the flight training is
acting as PIC. This conclusion was
based on the premise that the instructor
is not a passenger because the instructor
is present specifically to train the
person receiving flight training, and the
person receiving flight training is
similarly not a passenger with respect to
the instructor. Likewise, the FAA Legal
Interpretation to Roger Schaffner stated
that a flight instructor with an expired
medical certificate may instruct a
person who is a private pilot with a
current medical certificate and flight
review, even if that person is not current
to carry passengers per § 61.57(a)
because the instructor is not considered
a passenger when the instructor is
present specifically to train the person
receiving instruction.20 Although the
FAA makes the regulatory distinction in
§ 61.47(c) that during a practical test,
the applicant and the (14 CFR part 183)
examiner are not subject to the
requirements or limitations for the
carriage of passengers, the rule does not
assert that the persons are not
passengers to one another. Instead, it
specifies that those persons are not
subject to the limitations related to
carriage of passengers. No such
regulatory provision exists to make the
same assertion regarding flight
instructors and persons receiving flight
training. Therefore, the aforementioned
legal interpretations had no regulatory
basis to assert that flight instructors and
flight students were not considered
passengers to one another. This
proposed rule seeks to remedy the
disparity between the aforementioned
legal interpretations and current
regulations by creating an exception to
§ 61.57(a) and (b) to enable the activities
enumerated in the legal interpretations.
Importantly, the proposed rule will not
change the relationship between
instructors and persons receiving flight
training. The proposed rule does not
assert that these persons are not
passengers to one another. Instead, the
proposal clarifies when these operations
can be accomplished. Specifically, the
FAA is proposing to codify the
privileges described in the Kortokrax
and Schaffner interpretations. Under the
proposed rule, and consistent with the
aforementioned legal interpretations,
20 Legal Interpretation to Roger Schaffner (May 5,
2014).
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the FAA contemplates a scenario
whereby neither the flight instructor nor
the person receiving instruction has met
the recent flight experience
requirements of § 61.57(a) or (b). In this
scenario, the person receiving
instruction, if otherwise qualified, 21
would be permitted to act as the PIC and
would not be subject to the
requirements of § 61.57(a) or (b) to act
as PIC.
To ensure safety, the FAA proposes to
limit the types of operations and
persons who may be on board. The
proposed exception is limited to flight
training to meet the recent flight
experience requirement of § 61.57 (a) or
(b), and no other persons may be on
board the aircraft. Additional aircraft
occupants could cause distractions,
would not necessarily possess the
knowledge and skills to operate the
aircraft, and would not be in a position
to act in the event of a problem;
therefore, any additional persons would
not enhance safety.
The FAA finds having a flight
instructor on board promotes safety
because a flight instructor is trained to
monitor for pilot errors and can provide
input on technique and best practices
during critical phases of flight. The FAA
continues to find, regardless of whether
the flight instructor can act as PIC, the
flight instructor’s experience,
knowledge, and risk management skills
are valuable to the person receiving
instruction and increase safety, both
while in flight and for the public. In
support of this proposal, the FAA
emphasizes its longstanding recognition
that flight training is a valuable activity
and having a flight instructor onboard
effectuates the FAA’s goal of promoting
safety especially in a scenario where a
pilot is reestablishing privileges.
Likewise, safety is enhanced because
two pilots, one of whom is an
authorized instructor, who are
otherwise qualified to operate the
aircraft are onboard and are available to
act in the event of a problem. In
accordance with § 61.23(a)(3)(ii), (b)(5),
and (c)(1)(vi), a flight instructor who
does not meet medical or driver’s
license requirements, as applicable,
21 A flight instructor may not be able to act as PIC
for other reasons including a lack of medical
qualification. Under §§ 61.3(c)(2)(viii) and
61.23(b)(5), a flight instructor does not need to hold
a medical certificate while exercising the privileges
of flight instructor certificate if the flight instructor
is not acting as a required flightcrew member. To
act as PIC or as a required flight crewmember,
under § 61.23(a)(3)(ii) and 61.23(c)(1)(vi), when
exercising the privileges of a flight instructor
certificate, a flight instructor must possess at least
a third-class medical certificate, or a U.S. driver’s
license if the flight is conducted under the
conditions and limitations set forth in § 61.113(i).
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cannot act as PIC. In all cases, the
person acting as PIC must meet all
applicable medical or driver’s license
requirements to act as PIC.22 The
proposed rule does not change these
requirements to act as PIC.
The FAA notes that the proposed rule
would not codify the position in certain
legal interpretations that were an
outgrowth of the Kortokrax and
Schaffner interpretations. In FAA Legal
Interpretation to John Olshock,23 the
FAA concluded that it would be
permissible for a properly rated and
current instructor (except for § 61.57(b)),
and a student pilot (who is not yet rated
in the aircraft but receiving training) to
be on board an airplane together during
night hours because neither was
considered to be a passenger to the
other. The proposed rule would not
codify the conclusion made in Olshock
that a flight instructor need not comply
with § 61.57(a) or (b) when conducting
flight training with someone receiving
training who is not qualified to act as
PIC or a person holding only a student
pilot certificate. There is no adequate
safety justification to continue to enable
this activity.
In the proposed rule, the safety
justification is supported by the fact that
there are two certificated and otherwise
qualified pilots who could each provide
knowledge and skills appropriate to the
operation of the aircraft. Not only is
there a qualified flight instructor on
board with the additional training and
aeronautical skills necessary to become
an authorized instructor, but the second
pilot has also demonstrated PIC
proficiency in the aircraft to an FAA
examiner. Each of these pilots has the
necessary skillset to operate the aircraft.
Similar to the legal interpretations
related to § 61.57 exceptions for flight
instructors, the FAA published
interpretations that speak to the
student/instructor relationship for the
purpose of enabling certain operations
for flight instructors who do not hold an
FAA medical certificate.24 The FAA
22 Section 61.23(a)(3)(ii) requires that a person
must hold at least a third-class medical certificate
when exercising the privileges of a flight instructor
and acting as PIC or as a required flight
crewmember. Section 61.23(b)(5) states that a
person is not required to hold a medical certificate
when exercising the privileges of a flight instructor
certificate if the person is not acting as PIC or
serving as a required flight crewmember. Section
61.23(c)(1)(vi) requires a person hold either a
medical certificate issued under part 67 or a U.S.
driver’s license when exercising the privileges of a
flight instructor certificate and acting as PIC or as
a required flight crewmember if the flight is
conducted under the conditions and limitations set
forth in § 61.113(i).
23 Legal Interpretation to John Olshock (May 4,
2007).
24 See Legal Interpretation to E.V. Fretwell (Sept.
18, 1995).
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amended § 61.23 in April 1997 to clarify
when a flight instructor must hold a
medical certificate or driver’s license, as
applicable. Because § 61.23 was already
amended and the proposed addition to
§ 61.57(e) provides a regulatory
exception to § 61.57(a) and (b) for
persons receiving flight training in
certain circumstances, the FAA
proposes to rescind the Legal
Interpretation to Kris Kortokrax, Legal
Interpretation to John Olshock, Legal
Interpretation to Roger Schaffner, and
Legal Interpretation to E.V. Fretwell 30
days after the publication of this NPRM.
These legal interpretations are not
supported by current FAA regulations
and with the publication of the
proposed final rule, would no longer be
necessary to support the operations they
intended to clarify.
C. Flight Instructor Privileges (§§ 61.193
and 61.413)
Sections 61.193 and 61.413 set forth
the privileges of flight instructors and
sport pilot instructors, respectively.
Under §§ 61.193(a)(1) through (9) and
61.413(a)(1) through (9), an authorized
flight instructor may train and provide
endorsements required for certificates,
ratings, operating privileges, recency of
experience requirements, and tests. The
areas listed do not specifically address
elective and specialized training
activities that the FAA encourages but
which are not required to meet FAA
regulations. These activities include, but
are not limited to, transition training to
a new make and model for which a pilot
is already rated but has never flown or
lacks familiarity, and conventional
instrumentation to technically advanced
aircraft training.
The FAA proposes clarifying
amendments to §§ 61.193 and 61.413 to
conform the regulations with current
FAA policy and industry practice. First,
the FAA proposes to modify the
introductory text of §§ 61.193(a) and
61.413(a) to clarify that, within the
limits of their certificates, authorized
flight instructors may conduct ground
and flight training, and certain checking
events, in addition to issuing
endorsements. Second, the FAA
proposes to add ‘‘maintaining or
improving skills for certificated pilots’’
to §§ 61.193(a)(7) and 61.413(a)(6) to
clarify that flight instructors are
authorized to conduct certain
specialized and elective training. Third,
the FAA proposes to add §§ 61.193(c)
and 61.413(c) to clarify that the
privileges afforded to authorized flight
instructors under these provisions do
not permit operations that would
require an air carrier or operating
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certificate or specific authorization from
the Administrator.
Under the current text of §§ 61.193
and 61.413, an authorized flight
instructor may conduct training related
only to endorsing a person for
certificates, ratings, operating privileges,
recency of experience requirements, and
tests. First, this proposal amends the
introductory text in paragraphs of
§§ 61.193(a) and 61.413(a) to clarify that
an authorized flight instructor may
provide training and certain checking
events even when the training is not
conducted in furtherance of issuing an
endorsement required by FAA
regulation. The FAA notes that current
§§ 61.193(a) and 61.413(a), and their
corresponding reliance on endorsements
listed in §§ 61.193(a)(1) through (9) and
61.413(a)(1) through (9), excludes an
express reference to elective and
specialized training activities that are
elsewhere encouraged.
For example, although the FAA
encourages specialized elective pilot
training under Advisory Circular 90–
109,25 current § 61.193 does not
explicitly list these types of flight
training activities in the flight instructor
privileges. Similarly, while the FAA
flight instructor handbooks promote
specialized elective training, such as
transition training and upset recovery
training, §§ 61.193 and 61.413 do not
list this type of activity as flight
instructor privileges. These examples
illustrate that amending §§ 61.193 and
61.413 is necessary to align the
regulatory text with current policy and
industry practice and encourage flight
training activities in the interest of
public safety.
The proposed modification to
§§ 61.193(a) and 61.413(a) also clarifies
that flight instructor privileges include
certain checking events, when the
instructor is appropriately authorized.
This may include instrument
proficiency checks (IPC), night vision
goggle proficiency checks (NVG), sport
pilot proficiency checks, and part 141
checks. To date, these functions have
been an implicit privilege for flight
instructors. This proposed modification
to §§ 61.193(a) and 61.413(a) makes
these privileges explicit.
Next, the FAA proposes to modify
§§ 61.193(a)(7) and 61.413(a)(6) to
clarify that an authorized instructor may
conduct pilot training related to
maintaining or improving skills for
certificated pilots, consistent with FAA
publications and current industry
practice. For example, the
aforementioned Advisory Circular 90–
25 Advisory Circular 90–109A, Transition to
Unfamiliar Aircraft (Jun. 29, 2015).
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109 provides recommendations to pilots
transitioning to an unfamiliar aircraft,
which includes training with a flight
instructor. Additionally, Advisory
Circular 61–98, recommends recurrent
training to maintain proficiency. For
instances, Advisory Circular 61–98,
states that ‘‘recurrent training, including
a flight to a towered airport with an
experienced flight instructor, is a good
way to gain proficiency with airport
operations and to develop the required
skills to avoid runway incursions.’’ 26
The proposed modification to
§§ 61.193(a)(7) and 61.413(a)(6) refers to
training that advances a pilot’s
preexisting flying knowledge or skills.
Pilots may undergo this type of training
to increase their proficiency in areas
that may not require specific
endorsements. Thus, the training
contemplated under proposed
§§ 61.193(a)(7) and 61.413(a)(6) may
include transition training to operate a
new aircraft of the same category and
class, aerobatic training, formation
training, and mountain flying. While
none of these skills require an
endorsement, this training is highly
beneficial and increases safety for
already certificated pilots who intend to
perform these types of operations. The
proposed training does not contemplate
learning basic flying skills, as in the
case of a student pilot. Instead, the
proposed training includes only training
for pilots to maintain or advance
preexisting skills, not the initial
inception or development of pilot
knowledge.27
The FAA finds that having an
authorized instructor present in the
aircraft during specialized and elective
training events, and in other scenarios
not undertaken in furtherance of
meeting a specific regulatory
requirement, promotes safety. Flight
training, regardless of whether it is
necessary to meet a regulatory
requirement, improves pilot skills and
abilities. As noted, it has been
longstanding industry practice, and the
proposed regulation merely clarifies that
such training is an appropriate exercise
of a flight instructor’s privileges.
Section 61.1 defines flight training as
training received from an authorized
instructor. This section generally
defines an authorized instructor as a
person who holds a flight instructor
certificate and who is conducting
training in accordance with the
privileges and limitations of the flight
26 Advisory Circular 61–98D, Currency
Requirements and Guidance for the Flight Review
and Instrument Proficiency Check, paragraph
2.3.6.1 (Apr. 30, 2018).
27 For example, this training would not include
aerobatic flights offered to non-pilots.
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instructor’s certificate. As previously
described, the privileges enumerated in
§ 61.193 do not currently list training
related to maintaining or improving
skills for certificated pilots; therefore,
this time would not be considered flight
training under the express text of the
regulation.28 The proposed modification
to this rule would legitimize this time
and enable authorized flight instructors
to log this time as flight training. In
addition, permitting authorized flight
instructors to log their flight time during
these operations promotes training and
incentivizes instructors to engage in this
activity.
If these amendments are finalized as
proposed, the FAA proposes to rescind
the Mostofizadeh legal interpretation.29
In pertinent part, this interpretation
found that certificated flight instructors
providing flight training during
formation flights were not acting as
authorized instructors.30 The
interpretation concluded that the
definition of ‘‘instruction’’ from § 61.193
only included training activities
conducted to satisfy a pilot’s
certificates, ratings, operating privileges,
recency of experience requirements, and
testing. The FAA recognizes that the
interpretation, although consistent with
the current regulations, would be
inconsistent with this proposal if
finalized. As such, the FAA will rescind
the interpretation if it finalizes this rule.
The FAA’s third proposal would add
new §§ 61.193(c) and 61.413(c) to clarify
that no privileges beyond bona fide
ground and flight training, and certain
authorized checking events, are
contemplated within flight instructor
privileges. Specifically, the proposed
paragraphs would clarify that an
authorized flight instructor cannot
utilize the privileges afforded under
§§ 61.193(a) and 61.413(a) to conduct
any operation that would otherwise
require an air carrier certificate,
operating certificate, or specific
authorization from the Administrator.
For example, an instructor is not
authorized under this section to solely
provide transportation or conduct
commercial air tours or otherwise
engage in transportation under the guise
28 Under § 61.51(e)(3), an authorized instructor
may log PIC time for all flight time ‘‘while serving
as the authorized instructor’’ in an operation if the
instructor is rated to act as pilot in command of that
aircraft.
29 Legal Interpretation to Djavad Mostofizadeh
(Apr. 19, 2013).
30 Section 61.1 defines ‘‘authorized instructor,’’ in
relevant part, as a person who holds a valid flight
instructor certificate when conducting ground
training or flight training ‘‘in accordance with the
privileges and limitations’’ of their flight instructor
certificate. Those privileges are set forth in
§ 61.193(a).
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of flight training.31 Likewise, offering
introductory or ‘‘orientation’’ flights to
non-pilots that maintain no intention of,
or interest in, obtaining pilot credentials
would likely not fall within the purview
of a flight instructor’s privileges, but
would likely be considered to be air
tours.32 As specified in proposed
§§ 61.193(c) and 61.413(c), an
authorized instructor may not engage in
commercial operations that would
otherwise require an air carrier
certificate, operating certificate, or a
specific authorization from the
Administrator, under the auspices of
flight training. Misuse of §§ 61.193 and
61.413 to provide commercial air tours,
is not permitted.
When ascertaining whether an
operation is considered flight training,
the FAA may examine the primary
purpose of the flight and whether the
person being carried for compensation
or hire is interested in flight training.33
Flights for compensation or hire that
would likely not be construed as flight
training include a one-time aerobatic or
barnstorming flight for a person who
holds no pilot credentials or an
individual ‘‘fulfilling a one-time bucket
list item.’’ 34 In these scenarios, the
person has no intention of obtaining
flight training, but rather is on board for
the experience of the flight itself.
Operations of this nature would not fall
under the § 119.1(e)(1) ‘‘student
instruction’’ exclusion and would
continue to require an air carrier or
commercial operator certificate issued
in accordance with part 119 or a specific
authorization from the Administrator,
such as a commercial air tour letter of
authorization. Conversely, persons who
may be interested in pursuing flight
training will necessarily have a first
31 See Legal Interpretation to Doug McQueen, p.
3 (Apr. 16, 2013).
32 See Legal Interpretation to William Grannis
(Aug. 3, 2017) (explaining that ‘‘flight training’’
contemplates that ‘‘purpose of the flight must be
student instruction’’); see also Legal Interpretation
to Doug McQueen, p. 3 (Apr. 16, 2013) (explaining
that ‘‘a flight conducted for compensation or hire
. . . where a purpose of the flight is sightseeing’’
is a ‘‘commercial air tour’’); and Legal Interpretation
to Michael Mason (Oct. 3, 2012) (quoting 2007 Final
Rule for proposition that ‘‘sightseeing is not always
a purpose of the barnstorming or vintage aircraft
flight [but] the FAA considers the overall character
of the flight to be sightseeing, even if a primary
purpose may be the experience of flight in an
historic aircraft’’) (internal brackets and citation
omitted).
33 Legal Interpretation to Michael Mason (Oct. 3,
2012) (explaining that FAA may consider several
factors when determining whether a flight is
conducted for flight training).
34 See Legal Interpretation to William Grannis
(Aug. 3, 2017) (explaining that because ‘‘persons
being carried for compensation or hire are not
interested in flight training . . . [i]t is therefore
unlikely that the purpose of these flights would be
student instruction’’).
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introductory flight with an authorized
instructor where basic flying skills are
introduced. This type of introductory
flight, conducted for educational
purposes, would be considered flight
training.
The FAA also notes that, aside from
permitting an authorized flight
instructor to conduct certain checking
events and training related to
maintaining or improving skills for
certificated pilots, the requirements in
§§ 61.193 and 61.413 remain
unchanged. For example, the list of
endorsements an authorized instructor
may issue remains unchanged under
both affected sections. In this regard, the
proposed amendments do not change
the requirement that an instructor must
be authorized in accordance with the
definitions provided in § 61.1(b) to
conduct flight training.
Authorized flight instructors that
conduct training and checking events
under this proposed amendment may
begin documenting and recording their
flight time to prepare if this proposal
becomes final. The FAA notes that
many instructors have historically
logged this time, despite the fact that the
regulatory language did not explicitly
enable it. If the proposals related to
flight instructors are adopted in a final
rule, the FAA will permit instructors to
credit their prior flight time consistent
with this amendment retroactively. As a
result, the FAA encourages authorized
instructors to begin documenting and
recording this time, if not already part
of their standard practice, to receive
credit if this proposal is adopted.
While the FAA did not evaluate
similar changes to § 61.133(a)(2)(i)(E)
and (ii)(D) for airship and balloon flight
training, the Administrator seeks public
comment on the merits of making the
same change for commercial pilots with
lighter-than-air category ratings who
provide flight training in the final rule,
if adopted.
IV. Aircraft Holding Certain Special
Airworthiness Certificates
A. Background: Emergency Cease and
Desist Order, Litigation, and FAA Notice
The restrictions on operating aircraft
that hold special airworthiness
certificates carrying people for
compensation or hire recently came
under review as a result of an
emergency cease and desist order issued
to Warbird Adventures, Inc. by the FAA
in 2020.35 In that case, the operator
maintained a publicly available website
that advertised opportunities to fly in a
limited category aircraft at upcoming
35 Emergency Cease and Desist Order Issued by
the Federal Aviation Administration (July 28, 2020).
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airshows and allowed members of the
public to book flights in exchange for
compensation. The operator brought a
petition for review of the emergency
order before the court.36 The operator
argued it was conducting flight training
for compensation in its limited category
aircraft, which it claimed is not a
prohibited activity under § 91.315.37 In
response, the FAA argued that, under
the plain language of § 91.315, flight
training for compensation constitutes
operating a limited category aircraft
carrying a person for compensation or
hire and, therefore, is a violation of the
regulation.38
On April 2, 2021, the Court dismissed
the petition for review of the cease and
desist order.39 Following the Court’s
dismissal, several aviation industry
groups sought clarification from the
FAA on how the decision affected flight
training in experimental aircraft, since
the prohibitory language of § 91.315 for
limited category aircraft is the same as
that in § 91.319 for experimental
aircraft. In particular, industry
advocates sought clarification on
whether the owner of an experimental
aircraft who receives and pays for flight
training in that aircraft is operating the
aircraft carrying a person for
compensation or hire. Similarly,
industry advocates asked whether the
flight instructor also was operating the
aircraft in violation of the prohibition in
§ 91.319. Industry noted that FAA
guidance at that time allowed an
experimental aircraft to be used in such
a way without running afoul of the
requirement to obtain a LODA to
conduct flight training.40
36 Warbird Adventures, Inc. v. Fed. Aviation
Admin., Petition for Review from an Emergency
Cease and Desist Order Issued by the Federal
Aviation Administration on July 28, 2020, Doc. No.
1854466 (D.C. Cir. 2020).
37 The FAA has not conceded that the flights
being operated were for the purpose of legitimate
flight training.
38 Section 91.315 states, ‘‘No person may operate
a limited category civil aircraft carrying persons or
property for compensation or hire.’’
39 The Court stated: ‘‘A flight student is a
‘‘person.’’ Id. § 91.315; see also id. § 1.1. When a
student is learning to fly in an airplane, the student
is ‘‘carr[ied].’’ Id. § 91.315. And when the student
is paying for the instruction, the student is being
carried ‘‘for compensation.’’ Id.’’ Warbird
Adventures, Inc. v. Fed. Aviation Admin., 843 F.
App’x 331 (D.C. Cir. 2021).
40 The guidance (FAA Order 8900.1, Vol. 3, Chpt.
11, sec. 1, para. 3–292) stated that flight instructors
may receive compensation for providing flight
training in an experimental aircraft but may not
receive compensation for the use of the aircraft in
which they provide that flight training unless they
obtain a LODA issued under § 91.319(h). Likewise,
the guidance stated that owners of experimental
aircraft may receive and provide compensation for
flight training in their aircraft without a LODA, but
owners may not receive compensation for the use
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In response, the FAA published a
Notification of Policy in the Federal
Register laying out its position that,
when compensation is provided for
flight training, it is contrary to the
prohibition on operating an aircraft
carrying a person for compensation or
hire even when no compensation is
provided for the use of the aircraft.41
The FAA announced that it would
rescind the agency guidance that
conflicted with the plain meaning of the
regulation and noted it would consider
a future rulemaking to remove obstacles
to flight training for owners of aircraft
with certain special airworthiness
certificates while maintaining
prohibitions on broadly offering these
aircraft for flight training to the public.
This NPRM proposes those changes.
In addressing the flight training
concerns, the FAA has also found
conflicts between the general
prohibitions in §§ 91.315, 91.319, and
91.325 (applicable to limited category,
experimental and primary category
aircraft respectively) and operating
limitations placed on these aircraft
during the aircraft certification process,
legal interpretations, and guidance
related to carriage of persons or property
aboard these aircraft during operations
involving compensation or hire. Terms
within these regulations are either
broadly defined (e.g., operate, person) or
have been broadly interpreted over time
(e.g., compensation), resulting in
obstacles to certain flight training that
the FAA did not intend.
For example, since the FAA considers
a flight instructor to be operating an
aircraft carrying a person for
compensation or hire (even when the
compensation is paid only for the flight
training), then any pilot who receives
compensation for piloting a limited
category, experimental, or primary
category aircraft would be in violation
of the rule when operating an aircraft for
compensation with another person is on
board.42 The FAA did not intend to
prohibit a pilot’s receipt of
compensation for operations which may
incidentally carry persons in aircraft
of their aircraft for flight training except in
accordance with a LODA issued under § 91.319(h).
41 Notification of Policy for Flight Training in
Certain Aircraft, 86 FR 36493 (Jul. 12, 2021).
42 The FAA notes that, while it may seem
inappropriate to apply the word ‘‘operate’’ to
required flightcrew in this scenario, other part 91
regulations that use the word ‘‘operate’’ are clearly
intended to apply to both the owner of an aircraft
and the required flightcrew. For example, it would
create an absurd result to suggest that § 91.111(a),
which states ‘‘no person may operate an aircraft so
close to another aircraft as to create a collision
hazard,’’ should not be applied to the flightcrew. It
would result in confusion if the regulated
community cannot rely on a consistent application
of the term ‘‘operate’’ throughout part 91.
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with certain special airworthiness
certificates. In fact, as discussed later in
this section, the FAA finds that some
operations of these aircraft necessarily
involve carrying people when
compensation is provided to the
operator or flightcrew.
The following discussion provides
further explanation of the obstacles
created by the current regulatory
language. With respect to an aircraft, the
word ‘‘operate’’ is broadly defined in
§ 1.1 as ‘‘use, cause to use or authorize
to use aircraft, for the purpose (except
as provided in § 91.13 of this chapter) of
air navigation including the piloting of
aircraft, with or without the right of
legal control (as owner, lessee, or
otherwise).’’ While the term ‘‘operate’’
may refer to the person piloting an
aircraft, it also extends to aircraft
owners who use an aircraft without
piloting it, to owners who authorize
someone else to use the aircraft, and to
the persons that the owner authorizes to
use the aircraft. Under the regulatory
definition, an aircraft may be operated
by more than one person for purposes
of part 91 regulations.43
Likewise, the phrase ‘‘operate
carrying persons or property for
compensation or hire’’ has been viewed
to mean that the receipt of
compensation is in exchange for the
carriage of persons or property rather
than that there is receipt of
compensation for operating while
carrying persons or property.
Importantly, ‘‘carriage’’ does not
necessarily mean transportation from
place to place nor does it speak to the
reason a person is being carried. Any
person on board an aircraft with another
is considered to be ‘‘carried.’’ 44
Therefore, the regulations could be
interpreted to mean that no person may
receive compensation for an operation
which carries persons or property,
regardless of the nature of the operation
or whether compensation is provided
for some service other than the carriage
of persons.
Furthermore, the FAA has
consistently construed ‘‘compensation’’
broadly.45 Given this broad definition,
43 For example, § 91.7(a) prohibits any person
from operating a civil aircraft unless it is in an
airworthy condition. A violation of this regulation
would likely involve the pilot in command who is
responsible for determining whether that aircraft is
in condition for safe flight under § 91.7(b), but it
may also involve the owner of the aircraft if the
owner is shown to have authorized the use of the
aircraft in an unsafe condition.
44 There are a number of operations permitted
under part 91 operating rules that involve the
carriage of persons that are not point-to-point
transportation.
45 See Legal Interpretation to Joseph Kirwan (May
27, 2005). Compensation ‘‘does not require a profit,
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there are a number of scenarios where
operations may be precluded that the
FAA did not intend to foreclose. For
instance, flights involving an aircraft
manufacturer carrying prospective
customers in an aircraft with an
experimental special airworthiness
certificate utilizing the experimental
market survey purpose or a flight
instructor providing customer crew
training under this purpose could be in
violation if the pilot or instructor,
respectively, is being compensated. 46
With this proposed rule, the FAA
seeks to narrow and more clearly define
the types of operations that are
precluded in aircraft holding certain
special airworthiness certificates.
Therefore, the FAA is proposing
changes to clarify how these aircraft
may be operated.
Should the modifications to the part
91 regulations proposed by this rule
become final, the FAA will rescind
certain legal interpretations related to
the carriage of persons or property for
compensation or hire in limited
category, experimental, and primary
category aircraft (i.e., Legal
Interpretation to Bob Shaw (Feb. 4,
2008), Legal Interpretation to Joy Ratini
(Apr. 30, 2014), Legal Interpretation to
Gregory Morris (Oct. 7, 2014), and Legal
Interpretation to E.J. Sinclair (Jul. 22,
2015)). The purpose of those affected
legal interpretations was to explain the
circumstances under which persons or
property could be carried for
compensation or hire under §§ 91.315,
91.319, and 91.325. However, the
modifications proposed by this rule
would implement a new regulatory
structure which would replace the
explanations provided by the legal
interpretations.
B. Part 91 Regulations Governing the
Operation of Aircraft With Certain
Special Airworthiness Certificates
(§§ 91.315, 91.319, 91.325, and 91.327)
The FAA proposes to amend the part
91 regulations governing the operation
of limited category, experimental, and
primary category aircraft to reflect two
modifications. First, the FAA proposes
to modify §§ 91.315, 91.319(a)(2), and
a profit motive, or the actual payment of funds.’’
Rather, compensation is the receipt of anything of
value. See also Legal Interpretation to John W.
Harrington (Oct. 23, 1997); Blakey v. Murray, NTSB
Order No. EA–5061 (Oct. 28, 2003). The FAA has
previously found that reimbursement of expenses
(fuel, oil, transportation, lodging, meals, etc.),
accumulation of flight time, and goodwill in the
form of expected future economic benefit could be
considered compensation.
46 See § 21.191(f), which describes the market
survey purpose as, ‘‘Use of aircraft for purposes of
conducting market surveys, sales demonstrations,
and customer crew training only as provided in
§ 21.195.’’
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91.325(a) (applicable to limited
category, experimental, and primary
category aircraft, respectively) to change
the existing language from a general
prohibition on carrying persons or
property for compensation or hire to
more specifically identify the
commercial operations that may not be
conducted in these aircraft if persons or
property are carried on board. These
operations would include air carrier or
commercial operations 47 as well as
other commercial operations in which
persons or property are carried.
Specifically, except as provided in
proposed § 91.326 (discussed more fully
later in the preamble), the proposed
amendments would prohibit conducting
operations which: (1) require an air
carrier or commercial operator
certificate issued under part 119; (2) are
listed in § 119.1(e); (3) require
management specifications for a
fractional ownership program issued in
accordance with subpart K of part 91; or
(4) are conducted under parts 129, 133,
or 137. The proposed modifications are
intended to narrow the prohibition on
the carriage of persons or property for
compensation or hire and to clarify the
FAA’s intent, which is to prohibit the
operation of aircraft holding certain
special airworthiness certificates as air
carriers, commercial operators, or
otherwise carrying persons or property
for hire in a manner that would require
authorization from the Administrator,
such as an air carrier or a commercial
air tour. These aircraft are purpose-built
for specific operations and do not meet
the same rigorous design, build, and
maintenance standards as aircraft that
are eligible for use in passenger and
property carrying operations for hire.
Therefore, aircraft holding certain
special airworthiness certificates require
additional restrictions on operations for
compensation or hire.
Second, in proposed § 91.326(a), the
FAA proposes to codify the 2023 NDAA
provision to allow certain flight
training, checking, and testing in
experimental aircraft without a LODA
and apply this allowance to limited and
primary category aircraft and establish a
consistent LODA framework for limited
47 Section 1.1 defines ‘‘Air carrier’’ as a person
who undertakes directly by lease, or other
arrangement, to engage in air transportation.
Section 1.1 defines ‘‘Commercial operator’’ as a
person who, for compensation or hire, engages in
the carriage by aircraft in air commerce of persons
or property, other than as an air carrier or foreign
air carrier or under the authority of part 375 of this
title. Where it is doubtful that an operation is for
‘‘compensation or hire’’, the test applied is whether
the carriage by air is merely incidental to the
person’s other business or is, in itself, a major
enterprise for profit.
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category and experimental aircraft in
§ 91.326(b).
Section 91.326(a) would establish the
conditions under which a person may
operate these aircraft to accomplish
training, checking, and testing without
the need to obtain a LODA from the
FAA. For those operations that cannot
meet the conditions for operating
without a LODA, § 91.326(b) would
codify a consistent framework for
requesting a LODA to conduct flight
training, checking, and testing in
limited category and experimental
aircraft similar to the allowance
currently reflected in § 91.319(h) for
experimental aircraft. The FAA also
proposes corresponding amendments to
the general prohibitions in §§ 91.315,
91.319(a)(2), and 91.325(a) to reflect the
exception in newly proposed § 91.326.
Section 91.326 is discussed more fully
later in this preamble.
1. Prohibited Commercial Operations
The FAA proposes to identify part
119 and other regulatory parts
pertaining to specific commercial
operations to clearly delineate the
operations involving the carriage of
persons and property for compensation
and hire that are prohibited in aircraft
holding certain special airworthiness
certificates. This proposal balances the
additional safety benefits afforded by
§ 91.326 for flight training, checking,
and testing with the public expectation
and safety mitigations necessary for
operations involving aircraft holding
certain special airworthiness
certificates. Where there is receipt of
compensation for transportation, the
public expects, and the FAA demands,
a higher level of safety.48
Importantly, transportation does not
necessarily mean ‘‘from place to place,’’
as evidenced by numerous
interpretations and guidance referencing
‘‘common carriage,’’ whereby the FAA
has qualified two of the four tenets of
common carriage as ‘‘(2) to transport
persons or property (3) from place to
place.’’ 49 The FAA notes that, from a
regulatory standpoint, transportation
can simply mean conveyance for a
purpose, such as a non-stop commercial
air tour that takes off and lands at the
same airport or carriage of an aerial
photographer. Each of these examples
represents an operation where a person
has paid to be carried in an aircraft and
which is precluded under the text of the
current rule and would continue to be
48 See
Advisory Circular No. 61–142, Sharing
Aircraft Operating Expenses in Accordance with 14
CFR 61.113(c), (2020).
49 See Advisory Circular No. 61–142, Sharing
Aircraft Operating Expenses in Accordance with 14
CFR 61.113(c), (2020).
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41203
precluded under the proposed rule.
Operations where people are carried in
an aircraft, but are not paying for that
conveyance, are discussed in greater
detail later in this section.
Part 119 contains basic requirements
that apply to each person that operates
or intends to operate a civil aircraft as
an air carrier or commercial operator, or
both, in air commerce. This part
specifies the types of operations that the
FAA has determined require greater
oversight, maintenance, training, and
operational requirements to ensure
public safety when carrying persons or
property for compensation or hire.
Depending on the type of operation and
aircraft used, an air carrier or
commercial operator conducts these
operations under the operating rules in
either part 121 or part 135.
Part 119 likewise excepts certain
commercial operations from
certification under that part. Carriage of
persons or property for compensation or
hire during these excepted operations
will continue to be prohibited in aircraft
holding certain special airworthiness
certificates under the proposed
modifications to the rules. Section
119.1(e) enumerates various types of
commercial operations that may be
conducted without an air carrier or
commercial operator certificate. For
example, § 119.1(e)(2) refers to nonstop
commercial air tours, § 119.1(e)(4) lists
various forms of aerial work operations,
and § 119.1(e)(6) refers to intentional
parachute drop operations. These types
of commercial operations are conducted
under the general operating rules in part
91. In addition to these commercial
operations that may be conducted under
part 91, subpart K of part 91 allows for
carriage of persons or property in
fractional ownership programs without
part 119 certification. Other parts, such
as parts 129, 133, and 137, specify
regulations related to other highlyspecific commercial operations that
require additional oversight by the FAA
but do not require part 119 certification.
Each of these parts, as they relate to
carriage of persons or property for
compensation or hire, contain operating
rules intended to ensure the safety of
those being carried, as well as the nonparticipating public on the ground. The
restrictions on using aircraft with
special airworthiness certificates to
conduct these operations are based on a
safety continuum,50 which assigns
50 Safety Continuum is described as the level of
safety established by regulation, guidance and
oversight that changes based on risk and societal
expectations of safety. The safety continuum
applies an appropriate level of safety from small
unmanned aircraft systems to large transport
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Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
aircraft privileges based on the
corresponding level of design, build,
maintenance, and operational
requirements. Aircraft that are built
specifically for the purpose of carrying
persons or property for compensation or
hire are required to meet higher design
and build standards, such as those
required by 14 CFR parts 23, 25, 27, and
29 and appear at the highest levels of
the safety continuum. These aircraft
may be used for compensation or hire,
and they are generally not limited to
specific areas of operation or special
operating rules. Aircraft used for unique
commercial operations, such as part 133
rotorcraft external load operations and
part 137 agricultural aircraft operations
are purpose-built and have operating
limitations assigned to perform those
tasks safely. By contrast, aircraft holding
limited category, experimental, and
primary category airworthiness
certificates were not built or certificated
for the aforementioned purposes, nor
were they contemplated for use in those
regulatory frameworks. As such, these
aircraft fall lower on the safety
continuum than standard category
aircraft. Specifically, limited aircraft fall
lower on the continuum as they were
built to a standard but retain special
airworthiness certification since they
were designed for military uses.
Experimental aircraft are on the
opposite end of the continuum from
standard category aircraft. Experimental
aircraft have not necessarily been found
to meet airworthiness standards and are
excepted from many of the regulatory
maintenance and inspection
requirements of standard category
aircraft.51 For these reasons,
experimental aircraft are assigned the
most restrictive operating limitations.
Finally, primary category aircraft were
built for personal and recreational use.
As such, aircraft holding special
airworthiness certificates continue to
have associated regulations which limit
certain activities.
The intent of this proposal is to
update regulatory language to align the
FAA’s intent with the public’s
expectation for operations in aircraft
with certain special airworthiness
certificates, while ensuring no adverse
effect on safety. To continue to ensure
public safety and more clearly identify
those operations prohibited in aircraft
that hold certain special airworthiness
certificates, the FAA proposes to list in
category aircraft. The differing levels of safety
balance the needs of the flying public, applicants
and operators while facilitating both the
advancement of safety and the encouragement of
technological innovation. https://www.faa.gov/
about/office_org/headquarters_offices/avs/offices/
air/transformation/csp/concepts.
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§§ 91.315, 91.319, and 91.325, the
specific operations (i.e., operations that
require a part 119 air carrier or
commercial operator certificate or are
identified in § 119.1(e), operations that
require management specifications
under subpart K of part 91, operations
under part 129, part 133, and part 137)
that are prohibited in aircraft that hold
certain special airworthiness
certificates. This more specific language
would replace the broad language in the
current part 91 regulations that, as
previously discussed, forecloses
operations that the FAA did not intend
to prohibit.
The FAA finds that listing out the
specific operations that are prohibited
rather than relying on the broad
language currently reflected in
§§ 91.315, 91.319, and 91.325 would
better advise the regulated community
on how to comply. Notably, part 119 did
not exist when the FAA introduced
these special airworthiness categories
into its regulations. However, today part
119 is a widely used regulatory part
supported by legal interpretations, FAA
advisory circulars, and case law. The
regulations and associated guidance will
more clearly inform the owners and
operators of aircraft with special
airworthiness certificates that
operations requiring part 119
certification as well as those commercial
operations excepted from part 119
certification are not permitted in their
aircraft when persons or property are
carried on board for compensation. For
this reason, the FAA does not believe
that further discussion of the operations
requiring or excepted from part 119
certification is necessary in this NPRM.
Permitting the listed operations in
aircraft with certain special
airworthiness certificates is not in the
interest of public safety. These
operations were not intended for aircraft
holding certain special airworthiness
certificates in the original regulations
when they were developed, and they
would continue to be excluded from
these types of operations under the
proposed rules. The FAA finds that
there are sufficient aircraft that are
appropriately certificated (e.g., standard
and restricted category) to conduct the
types of commercial operations
previously described. The FAA
understands the interest by owners and
operators of aircraft with special
airworthiness certificates to broaden
their opportunities to receive
compensation for the use of their
aircraft; however, there is simply no
compelling reason to lower the existing
standard and expand the operating
footprint for aircraft that hold these
special airworthiness certificates.
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For these reasons, the FAA proposes
to revise the regulatory language of
§§ 91.315, 91.319(a)(2), and 91.325(a) to
clarify that, except for flight training,
checking, and testing as specified in
§ 91.326, persons may not operate these
aircraft carrying persons or property for
compensation or hire in operations that
require an air carrier or commercial
operator certificate issued under part
119; are listed in § 119.1(e); require
management specifications for a
fractional ownership program issued in
accordance with subpart K of part 91; or
are conducted under parts 129, 133, or
137.
2. Limited Category Airworthiness
Certificates (§ 91.315)
The limited category airworthiness
certification was developed shortly after
World War II. This certification enabled
the large number of available military
surplus aircraft to continue to be useful
after the war, but only for limited
purposes.52 To be granted a limited
category airworthiness certificate, the
aircraft’s military records could not
disclose any characteristics which
would render it unsafe when operated
as a civil aircraft in accordance with the
limitations and conditions prescribed by
the Administrator.53 Additional
operating limitations were required for
limited category aircraft to account for
the difference in certification
requirements between limited and
standard category aircraft. These
limitations included the prohibition on
carrying passengers and cargo for hire.
Eventually, the limited category
regulatory language became even more
restrictive to prohibit the carriage of
persons, not just passengers, for
compensation or hire.54
The history of limited category
airworthiness certificates illustrates the
52 Pilot Certificates, 14 CFR, 1946 Supp. 2132.
Specifically, the Civil Air Regulations (CAR) part 09
explained that the limited category airworthiness
classification was developed ‘‘for the purpose of
making available to the public certain military
surplus aircraft which were originally designed for
the military services of the United States for combat
and other specialized purposes and which
experience in military service has shown to be safe
for operation so long as the operation is confined
to flights in which neither passengers nor cargo are
carried for hire.’’
53 Pilot Certificates, 14 CFR 09.10(c), 1946 Supp.
2130.
54 While earlier versions of § 91.315 only
prohibited the carriage of ‘‘passengers’’ for
compensation or hire, the regulation was
subsequently amended to prohibit the carriage of
any ‘‘persons’’ for compensation or hire. Compare
Pilot Certificates, 14 CFR 09.10(c), 1946 Supp. 2130,
note (confining use of limited category aircraft to
flights ‘‘in which neither passengers nor cargo are
carried for hire’’) with 54 FR 34284, 34309 (Aug. 18,
1989) (prohibiting ‘‘carrying persons or property for
compensation or hire’’).
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Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
FAA’s original intent of who may be
carried in these aircraft. The FAA finds
that this history, in conjunction with
current industry practice and ensuring
consistency with other special
airworthiness certificated aircraft,
supports this proposal to modify the
language in § 91.315 to better articulate
the types of operations permitted in
these aircraft. Overall, this proposed
rule would increase the operational
privileges afforded to limited category
aircraft by enabling, with certain
limitations, flight training, checking,
and testing, as well as modify the
generally prohibitive language to be
more specific with regard to operations
that cannot be conducted for
compensation or hire with persons or
property on board. Therefore, the FAA
is proposing to amend § 91.315 to clarify
that, except as provided in § 91.326
(discussed later in this section), persons
may not operate these aircraft carrying
persons or property for compensation or
hire in operations which require an air
carrier or commercial operator
certificate issued under part 119; are
listed in § 119.1(e); require management
specifications for a fractional ownership
program issued in accordance with
subpart K of part 91; or are conducted
under parts 129, 133, or 137.
3. Experimental Airworthiness
Certificates (§ 91.319)
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a. Experimental Aircraft—General
Experimental aircraft do not meet the
same design, build, and maintenance
requirements as aircraft that hold
standard airworthiness certificates.
Experimental aircraft fall lower on the
safety continuum than limited and
primary category aircraft, as they are not
necessarily built to any standard. For
this reason, experimental aircraft are
assigned additional operating
limitations in § 91.319, to include types
of operations (§ 91.319(a)(1)) 55 that may
be conducted and areas of operation
(§ 91.319(c)) in which operations may
take place.56
The FAA proposes to modify the
broad language in § 91.319(a)(2)
55 Section 91.319(a)(1) specifies that no person
may operate an aircraft that has an experimental
certificate for other than the purpose for which the
certificate was issued.
56 Section 91.319(c) specifies that unless
otherwise authorized by the Administrator in
special operating limitations, no person may
operate an aircraft that has an experimental
certificate over a densely populated area or in a
congested airway. The Administrator may issue
special operating limitations for particular aircraft
to permit takeoffs and landings to be conducted
over a densely populated area or in a congested
airway, in accordance with terms and conditions
specified in the authorization in the interest of
safety in air commerce.
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regarding the operation of these aircraft
carrying persons or property for
compensation or hire to further clarify
its intent. As previously discussed, the
plain language in the current regulatory
text of § 91.319(a)(2) results in an
outcome that the FAA finds overly
restrictive. The current language results
in the prohibition of operations that the
experimental purposes listed in § 21.191
were specifically designed to enable.57
For example, the experimental purpose
of research and development (R&D) in
§ 21.191(a) was designed to
accommodate testing new aircraft
design concepts, new aircraft
equipment, new aircraft installations,
new aircraft operating techniques, or
new uses for aircraft. Often, aircraft
manufacturers and equipment or
component manufacturers work in
tandem during development and testing
to ensure safe system integration. This
testing may require experts from both
manufacturers to participate in the test
flights. However, the plain language of
§ 91.319(a)(2) would prohibit the
operator from carrying persons if the
aircraft or system is being developed for
compensation 58 because both the
manufacturer and the pilot could be
construed to be operating while carrying
persons or property for compensation or
hire. The exclusion of persons
performing an essential function that is
directly related to the experimental
purpose unnecessarily places a burden
on the operator to obtain an exemption
to complete this work and was not
intended to fall under the broad
language of the regulation.
There are other experimental
purposes where compensation may be a
result of the operation. For instance, the
experimental crew training purpose
(§ 21.191(c)) is silent as to whether
pilots (instructor or trainee) are
compensated during training. Likewise,
the experimental market survey purpose
(§ 21.191(f)), developed specifically to
demonstrate the aircraft to persons who
are in a position to make a purchase
decision in hopes of selling an aircraft
or component (expected future
economic benefit), is also silent as to
whether pilots are compensated during
such an operation.
The FAA finds there would be no
adverse effect on safety from the
proposed modified language because
experimental aircraft are assigned
additional operating limitations that
57 See § 21.191 Experimental Certificates for a list
of experimental purposes.
58 Compensation can come in many forms. For
example, an aircraft manufacturer might be
compensated by way of a Department of Defense
contract to build aircraft for the military or to test
certain equipment.
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mitigate risk. Experimental aircraft are
limited by § 91.319(a)(1) in the types of
operations they may perform. Section
91.319(a)(1) specifies that persons are
prohibited from operating an
experimental aircraft for other than the
purpose for which the certificate was
issued.59 This means, for example, that
an experimental aircraft certificated for
the purpose of R&D can only be
operated to perform those R&D tests
identified at the time of certification.
R&D certificates have a maximum
expiration date of one year. This affords
the FAA an opportunity to reevaluate
the validity of the proposed test.
Likewise, an experimental aircraft
certificated for the purpose of crew
training can only be operated to train
the applicant’s flight crews. There is no
experimental purpose which would
support the carriage of persons or
property as a major enterprise for
profit.60
Furthermore, experimental aircraft are
restricted by § 91.319(c) from overflight
of densely populated areas unless
specifically authorized by the
Administrator. This prohibition
mitigates risk to non-participating
public on the ground. In addition, under
§ 91.319(i), the Administrator may
impose additional operating limitations
on experimental aircraft based on
aircraft characteristics and associated
risks. These additional operating
limitations further mitigate risks
associated with various hazards that
may be introduced in experimental
aircraft. For these reasons, the FAA sees
no adverse effect on safety in the
proposed modification of § 91.319(a)(2)
to more accurately reflect the prohibited
operations contemplated for
experimental aircraft.
b. Experimental Light-Sport Aircraft
(§ 91.319)
Section 91.319(e) contains specific
limitations on the use of certain
experimental aircraft certificated under
§ 21.191(i)(1).61 The FAA proposes to
modify § 91.319(e)(2) to remove the date
restriction on flight training in these
aircraft and direct readers to the flight
training, checking, and testing in
proposed § 91.326. Likewise, the FAA
proposes to modify paragraph (f),
59 See § 21.191 Experimental Certificates for a
complete listing of all experimental purposes.
60 The § 1.1 Commercial Operator definition
explains that ‘‘[w]here it is doubtful that an
operation is for ‘compensation or hire,’ the test
applied is whether the carriage by air is merely
incidental to the person’s other business or is, in
itself, a major enterprise for profit.’’
61 Section 21.191(i)(1) covers light-sport aircraft
that have not been issued a U.S. or foreign
airworthiness certificate and do not meet the
criteria for ‘‘ultralight vehicles’’ provided in § 103.1.
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regarding the leasing of aircraft issued
an experimental certificate under
§ 21.191(i).
Before 2004, the FAA granted
exemptions to permit two-seat
ultralight-like aircraft, which did not
meet the part 103 requirements of this
chapter, to be used for compensation or
hire for the purpose of flight training.62
On July 27, 2004, the FAA issued a final
rule defining light-sport aircraft to
include simple, small, lightweight, lowperformance aircraft. Additionally, in
the 2004 final rule the FAA created a
new special airworthiness certificate in
the light-sport category for special lightsport aircraft (SLSA) in § 21.190 and
added light-sport aircraft to the existing
experimental special airworthiness
certificate for experimental light-sport
aircraft (ELSA) in § 21.191(i).63
The 2004 final rule permitted
instructors to conduct flight training in
these ELSA aircraft for compensation or
hire until January 31, 2010, which
diminished the need for the part 103
training exemptions that allowed the
operation of two-seat ultralight-like
aircraft that did not conform to part 103.
As stated in the 2004 final rule, a
significant purpose of the rule was to
certificate those two-seat ultralight-like
aircraft previously operated under part
103 training exemptions and those twoseat and single-seat unregistered
ultralight-like aircraft operating outside
of the regulations.
Specifically, SLSA regulations
include aircraft manufactured according
to an industry consensus standard
rather than a type certificate. ELSA
regulations include provisions for: (1) a
temporary allowance for migration of
two-seat ultralight-like aircraft that did
not conform to 14 CFR part 103 and
were previously operated under part
103 training exemptions, (2) kit-built
versions of SLSA aircraft, and (3)
aircraft previously issued a special
airworthiness certificate in the lightsport category under § 21.190.
When publishing the 2004 final rule,
the FAA anticipated that the newly
manufactured SLSA would replace the
former two-seat ultralight-like aircraft
that did not conform to 14 CFR part 103
(newly certificated as ELSA) such that
flight training in ELSA would no longer
be necessary. The FAA, knowing that
62 By regulation, an ultralight vehicle must be
used or intended to be used for manned operation
in the air by a single occupant and may be used or
intended to be used for recreation or sport purposes
only. 14 CFR 103.1(a), (b). Because two-place
aircraft do not meet this requirement, they cannot
be operated as ultralight vehicles under part 103.
63 69 FR 44881 (Jul. 27, 2004). Under
§ 21.191(i)(1), no experimental certificates may be
issued for these aircraft after January 31, 2008.
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the manufacture of the new SLSA
aircraft would take time, created
provisions in existing § 91.319 to allow
for an extension of the time period to
permit the use of properly registered
aircraft with ELSA airworthiness
certificates to be used for flight training
by the same owner until January 31,
2010. After January 31, 2010, ELSA
aircraft were no longer permitted to be
used for flight training for compensation
or hire.
The FAA predicted that 60 months
would be an adequate amount of time
for the new SLSA to enter service to
replace the ELSA and meet flighttraining demands. The FAA also
anticipated that 60 months would
provide the owners of the transitioning
ELSA with additional time to purchase
SLSA to provide flight training under
the new rule, thereby delaying
replacement costs. In addition, the FAA
believed the action would further
expand the growth of the industry as a
whole. However, the new SLSA has not
materialized in the way that was
projected, especially for two-seat aircraft
used for light-sport and ultralight
training. Industry production of all
aircraft slowed during the projected
period, resulting in lower acquisition
costs of standard category aircraft that
could be operated as light-sport aircraft.
This caused the projected production of
SLSA to no longer be considered
financially viable, in many cases.
Experimental light-sport aircraft are
good training aircraft for light-sport and
ultralight vehicles because they may be
low mass/high drag aircraft that contain
a second seat that may be occupied by
an authorized flight instructor. The use
of ELSA as a training option for lightsport aircraft and ultralights provides an
avenue for structured flight training
from an FAA certificated flight
instructor. The FAA does not wish to
impede individuals who want to take
advantage of flight training that is
relevant to the type of aircraft they
operate. Additionally, the FAA
recognizes the importance of availability
of training aircraft for new light-sport
pilots and existing pilots who are
transitioning from a conventional
aircraft to a low mass/high drag aircraft.
While two-seat, light-sport, low mass/
high drag trainers with SLSA
airworthiness certificates can be found
on the market for use in flight training,
they do not exist in numbers that
provide for widespread availability.
Given the aforementioned
considerations and the delayed timeline
for availability of SLSA aircraft, the
FAA undertook a new rulemaking in
2014. On October 24, 2014, the FAA
published a NPRM titled Removal of the
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Date Restriction for Flight Training in
Experimental Light Sport Aircraft.64 To
ensure these aircraft are used solely for
the purpose of flight training, and to
better control and monitor the use of
ELSA for flight training, the FAA
proposed to require a LODA for persons
who intended to conduct flight training
for compensation or hire using ELSA.
The FAA proposed this change to allow
for increased availability of flight
training in aircraft with similar
characteristics to light-sport aircraft and
ultralights. As mentioned previously,
the 2004 final rule permitted training in
ELSA for compensation or hire for the
purpose of flight training until January
31, 2010. The NPRM proposed to
remove the date restriction in
§ 91.319(e)(2) and add language to
permit training in certain ELSA for
compensation or hire through existing
deviation authority provided in
§ 91.319(h) of this part.
For the reasons provided in the
concurrently issued Withdrawal of the
Removal of the Date Restriction for
Flight Training in Experimental Light
Sport Aircraft, the FAA is withdrawing
the NPRM titled Removal of the Date
Restriction for Flight Training in
Experimental Light Sport Aircraft, and
instead is developing this rule that
resolves the discrepancy more broadly
for all experimental aircraft and better
serves the public interest.
This proposed rule will address the
parameters of flight training in
experimental light-sport aircraft more
comprehensively than the 2014 NPRM
would have. This rule also proposes to
create a consistent flight training
framework for limited category and
experimental aircraft. Therefore, flight
training in ELSA is more appropriately
incorporated into this rulemaking.
The FAA is incorporating changes to
§ 91.319(e) and (f) to increase the
availability of light-sport aircraft for
training, and aid individuals who wish
to train in the type of aircraft they
operate. This rulemaking proposes to
change §§ 91.319(e)(2) and 91.319(f) to
direct stakeholders to proposed
§ 91.326, which describes exceptions for
flight training, checking, and testing.
The FAA recognizes that training in an
ELSA is beneficial for pilots to gain
familiarity with the performance and
handling qualities of other light-sport
aircraft and ultralights.
In addition, proposed § 91.319(f)(2)
would allow a person receiving flight
training to lease certain ELSA for the
purpose of accomplishing solo flight
and practical test in accordance with a
training program included in the
64 83
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deviation authority authorized in
accordance with proposed § 91.326(b).
Currently, § 91.319(f) prohibits the
leasing of certain ELSA, except to tow
a glider or unpowered ultralight vehicle.
If the proposed rule becomes final,
certain ELSA aircraft will be eligible to
operate for the purpose of flight training
in accordance with proposed § 91.326.
Removing the leasing restriction under
certain circumstances is necessary to
meet the part 61 pilot certification
requirements of this chapter. Because of
the unique characteristics of these
aircraft, the FAA has determined that
training in accordance with a
§ 91.326(b) LODA, to include solo flight
and practical tests required for pilot
certification, enhances safety. Solo flight
and practical tests may require leasing
of the aircraft.
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c. Miscellaneous Amendments
The FAA also proposes a few
miscellaneous amendments to § 91.319.
First, the FAA proposes to modify
§ 91.319(d)(3) to use ‘‘air traffic control’’
(ATC) in place of ‘‘control tower.’’ This
language is consistent with the other
regulatory sections that reference ‘‘air
traffic control’’ instead of ‘‘control
tower.’’ 65 Although the current
requirement for notification is limited to
only the control tower, if present,
expanding the requirement to notify all
ATC facilities with which the pilot
interacts during the course of a flight, if
any, increases safety by informing
controllers of the experimental nature of
the aircraft. This information can help
ATC to understand there may be
limitations associated with the aircraft.
It will remain the responsibility of the
operator to comply with those
limitations, however notification to all
ATC facilities will help controllers
maintain better awareness of the aircraft
to which they are providing service. If
no ATC services are utilized, there is no
additional requirement for notification.
The FAA also proposes to remove the
current deviation authority in
§ 91.319(h). The proposed removal of
paragraph (h) would provide additional
clarity to current LODA holders and
potential LODA applicants by
maintaining one LODA framework
under proposed § 91.326(b). Current and
potential LODA holders would be
directed to proposed § 91.326(b) with
the introductory language in § 91.319(a).
Additionally, proposed § 91.326(c)
would inform current§ 91.319(h) LODA
holders on the status of their LODAs if
this proposal is adopted as a final rule.
4. Primary Category Airworthiness
Certificates (§ 91.325)
The primary category was created in
1992 to stimulate the production of a
new class of simpler personal use and
recreational aircraft.66 To achieve this
intent, the primary category required a
simplified certification process though
still requiring aircraft to be built to a
design standard. At that time, the FAA
indicated that flight training could be
conducted in these aircraft.67 However,
as previously discussed, the broad
language prohibiting operations carrying
persons or property for compensation or
hire precludes a flight instructor from
receiving compensation while carrying a
person who is receiving flight training.
For consistency with the limited
category and experimental aircraft
operating limitations, the FAA proposes
to modify the language in § 91.325(a)
and (b) and create new paragraph (c).
First, the FAA proposes to modify the
language in § 91.325(a) to clarify that
persons may not operate these aircraft
carrying persons or property for
compensation or hire in operations that
require an air carrier or commercial
operator certificate issued under part
119; are listed in § 119.1(e); require
management specifications for a
fractional ownership program issued in
accordance with subpart K of part 91; or
are conducted under parts 129, 133, or
137. Second, to align the primary
category regulatory language with the
original intent at the time of its
inception, the FAA proposes to modify
§ 91.325(b) and add new (c) to enable
primary category aircraft to be used for
flight training, checking, and testing
without the need to obtain deviation
authority.
Consistent with the limitation in
current § 91.325(b), primary category
aircraft are divided into two groups,
with different privileges afforded to
each, due to differences in maintenance
requirements. The first group consists of
primary category aircraft that are
maintained by the pilot-owner under an
approved special inspection and
maintenance program. The second
group consists of primary category
aircraft that are maintained by part 65
certificated mechanics or authorized
repair stations.68
Primary category aircraft that are
maintained by FAA certificated
mechanics or authorized repair stations
fall higher on the safety continuum than
those that are pilot-owner maintained.
To determine the precise position of
primary category aircraft on the safety
66 57
65 For
example, see §§ 65.45, 91.123, 105.13, and
170.13.
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FR 41360 (Sept. 9, 1992).
FR 41360 (Sept. 9, 1992).
68 14 CFR part 145.
67 57
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continuum, and thereby determine the
corresponding privileges, the FAA
compares the regulatory privileges and
the design, build, and maintenance
requirements to those of light-sport
aircraft (LSA).
LSA do not meet 14 CFR
airworthiness standards. Instead, these
aircraft must be designed, built, and
maintained in accordance with industry
consensus standards. In accordance
with § 91.327(b), LSAs must be
maintained by FAA certificated
mechanics, authorized repairmen, or
authorized repair stations. Under
§ 91.327(a)(2), operators of LSA are
authorized to conduct flight training
without a requirement to hold a
LODA.69 The FAA proposes to grant
similar regulatory privileges to primary
category aircraft with similar
certification and maintenance
requirements. To that end, the FAA
proposes granting certain primary
category aircraft privileges similar to
those afforded to LSAs.
For these reasons, the FAA proposes
to add § 91.325(c) to permit primary
category aircraft maintained by FAA
certificated mechanics or authorized
repair stations to be operated for
compensation or hire for the purposes of
conducting flight training, checking,
and testing without deviation authority
or an exemption.
Under proposed § 91.325(c), primary
category aircraft which are maintained
by an FAA certificated mechanic or
repair station will be enabled to be
utilized for compensated flight training,
checking, and testing without
restriction, even when those services are
broadly offered to the public. In the
proposed modification to § 91.325(b),
operators of primary category aircraft
which are maintained by a pilot-owner
under an approved program who wish
to receive flight training, checking, or
testing are directed to § 91.326(a), which
would specify the circumstances under
which persons may conduct those
operations. That pilot-owner is
prohibited from receiving
compensation, except as provided in
proposed § 91.326(a). This prohibition
precludes operation under a LODA.
However, these pilot-owners are not
precluded from exercising the privileges
of proposed § 91.326(a). For these
reasons, primary category aircraft would
not be eligible to receive a LODA.
The FAA proposes that previously
issued exemptions from § 91.325 for the
purposes of flight training, checking, or
69 Notably, as a miscellaneous amendment, the
FAA is also proposing to clarify in § 91.327(a)(2)
that checking and testing are also permitted.
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testing will not be renewed or extended
if the proposed rule becomes final.
5. Light-Sport Category Special
Airworthiness Certificates (§ 91.327)
The FAA proposes modifying
§ 91.327(a)(2) to update the
nomenclature for consistency with the
other amendments proposed in this
rulemaking. Currently, § 91.327(a)(2)
authorizes flight training for
compensation or hire in a light-sport
category aircraft. The FAA proposes to
add that a person may conduct checking
and testing, in addition to the explicit
permission for flight training.70 These
activities have been implicit with the
language authorizing ‘‘flight training,’’
as flight instructors are authorized to
conduct certain checks, and testing is a
demonstration of skills learned during
training. These activities do not pose
any additional safety risk beyond that
associated with flight training. Further,
the FAA finds value in training and
testing in the aircraft that will be
regularly operated. The FAA
acknowledges that individuals may
already utilize § 91.327(a)(2) to conduct
checking and testing for compensation
or hire. Therefore, this modification
merely codifies existing implicit
privileges. The FAA does not anticipate
any substantive or practical change from
the proposed addition of checking and
testing in § 91.327(a)(2).
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D. Flight Training, Checking, and
Testing (§ 91.326(a))
As discussed, currently, §§ 91.315,
91.319, and 91.325 prohibit operating
limited category, experimental, and
primary category aircraft carrying
persons or property for compensation or
hire. Consistent with the outcome of the
Warbird litigation, these regulations
generally prohibit flight training,
checking, and testing when
compensation is provided.
In July 2021, the FAA established a
streamlined process that allowed
owners and flight instructors to apply
for a LODA through an expedited
process and accomplish certain flight
training in experimental aircraft.71
Given the language in the regulations,
aircraft owners seeking to receive flight
training in their own personal-use
70 See § 61.1 definition: ‘‘Flight training means
that training, other than ground training, received
from an authorized instructor in flight in an
aircraft.’’ Flight checking and testing are not flight
training but rather are proficiency evaluations that
are in most instances administered by persons other
than authorized instructors; therefore, the FAA
proposes to add these to explicitly permit these
activities.
71 See Notification of Policy for Flight Training in
Certain Aircraft. This policy has been superseded
by the 2023 NDAA.
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experimental aircraft, and flight
instructors providing that training for
compensation, applied for a LODA
through the aforementioned streamlined
process.72
However, as noted earlier, section
5604 of the 2023 NDAA contains a
provision that removes the LODA
requirement for flight training, testing,
and checking in experimental aircraft
under certain conditions. Flight
training, checking, and testing that is
broadly offered to the public, or that
does not conform to the stipulations of
the 2023 NDAA will continue to require
a LODA.
Therefore, the FAA proposes an
exception in § 91.326 to codify the
legislation for experimental aircraft and
extend what is already permissible for
experimental aircraft by legislation, to
other aircraft that hold certain special
airworthiness certificates. Proposed
§ 91.326 would also more clearly outline
who may receive and provide flight
training, checking, and testing without
deviation authority and to specify when
deviation authority is required for these
operations.
Specifically, the FAA proposes
adding § 91.326(a) to provide an
exception to the general limitations of
operating an aircraft under §§ 91.315,
91.319(a)(2), and 91.325(a) for
compensation or hire. Section 91.326(a)
would codify the legislation to allow
authorized instructors, aircraft owners,
lessors, or lessees to accomplish certain
flight training, checking, and testing in
experimental aircraft without obtaining
a LODA. The FAA also proposes to
include limited category and primary
category aircraft in the proposed rule, in
addition to experimental aircraft,
because current regulations prohibit the
same training, checking, and testing for
compensation in limited and primary
category aircraft, and the safety
justification for enabling these activities
applies equally. The proposed provision
would maintain the safety benefits of
using standard category aircraft to
accomplish most flight training,
checking, and testing while
acknowledging the safety benefits of
permitting pilots to perform these
activities in the aircraft they own or
regularly operate.
The following preamble sections
discuss the conditions in the legislation
as set forth in proposed § 91.326(a)(1)
through (3).
72 86
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1. Prohibition on Authorized Instructor
Providing Both Training and Aircraft
(§ 91.326(a)(1))
To accomplish flight training, testing,
and checking in an experimental aircraft
without a LODA, section 5604(1) of the
2023 NDAA prohibits an authorized
instructor from providing both the
training and the aircraft when there is
compensation exchanged for flight
training, checking, or testing. This
provision would be codified in
§ 91.326(a)(1) and extended to flight
training, testing, and checking in
limited and primary category aircraft, in
addition to the experimental aircraft
addressed in the legislation. As such,
any flight training, checking, or testing
given by an authorized instructor in the
authorized instructor’s own aircraft
must either be given without any
compensation or must be given in
accordance with a LODA. The FAA
notes that compensation can be nonmonetary because compensation is the
receipt of anything of value.73 For
example, the FAA previously found that
reimbursement of expenses such as fuel,
oil, transportation, lodging, and meals,
accumulation of flight time, and
goodwill in the form of expected future
economic benefit could be considered
compensation.74
2. Prohibition on Broadly Offering the
Aircraft as Available for Flight Training,
Checking, or Testing (§ 91.326(a)(2))
To accomplish flight training, testing,
and checking in an experimental aircraft
without a LODA, section 5604(2) of the
2023 NDAA prohibits any person from
broadly offering the aircraft as available
for the activity. Proposed § 91.326(a)(2)
would codify this provision and extend
it to limited category aircraft and
primary category aircraft that are pilotowner maintained.
Under proposed § 91.326(a)(2), the
persons listed in § 91.326(a) who wish
to receive or provide training in one of
these aircraft may do so without
obtaining deviation authority, as long as
they do not broadly offer or advertise
services in those aircraft to the public.
To highlight this distinction, the FAA
notes that when an owner seeks to
receive training in their own aircraft,
there is no need for the owner to
advertise or broadly offer any services to
receive that flight training. An aircraft
owner would not need to advertise their
aircraft as available for flight training.
73 Legal Interpretation to Joseph Kirwan (May 27,
2005) (Compensation ‘‘does not require a profit, a
profit motive, or the actual payment of funds’’).
74 Legal Interpretation to John W. Harrington (Oct.
23, 1997); Blakey v. Murray, NTSB Order No. EA–
5061 (Oct. 28, 2003).
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Rather, the owner would simply hire a
flight instructor of their choosing.
This prohibition on offering the
aircraft to the public forecloses flights
devoid of instructional or educational
value and conducted solely for
entertainment or leisure under the guise
of flight training. The FAA underscores
the importance of pilots understanding
and being familiar with the particular
systems, procedures, operating
characteristics, and limitations of the
aircraft they will regularly operate. Data
has shown that this increased
understanding and familiarity results in
fewer accidents over time.75
Importantly, advertising or broadly
offering an aircraft for flight training can
take many forms. In general, an entity or
individual advertises its services when
it communicates to the public, or a
segment of the public, that flight
training services are indiscriminately
available to any person with whom
contact is made. Currently, advertisers
can promote material in more than just
traditional print sources such as
magazines or newspapers. Advancing
technology allows individuals to reach
consumers through electronic
communications and internet postings.
Moreover, even if an individual limits
efforts to solicit flight training services
to a class or segment of the general
public, it may still be considered
‘‘broadly offering’’ its services. For
example, if a person posts
advertisements only on select social
media websites, or within particular
groups on a social media website or
other internet platform, it may still be
deemed to ‘‘broadly offer’’ its services if
the advertisements express a
willingness to provide flight training to
all users within a class or segment of
those platforms. The FAA also considers
establishing a reputation of a
willingness to perform a service broadly
as contrary to the prohibition in the
legislation and the proposed rule.76 The
FAA emphasizes that any leasing
scenario remains subject to the
prohibition on offering and advertising
75 NTSB Safety Recommendation, A–12–28
through –39 (Jul. 12, 2012), available online:
https://www.ntsb.gov/safety/safety-recs/recletters/
A-12-028-039.pdf.
76 AC 61–142, Sharing Aircraft Operating
Expenses in Accordance with 14 CFR 61.113(c),
(2020), states,). ‘‘Physically holding out, without
advertising, where the pilot gains a reputation of
serving all, is sufficient to constitute an offer to
carry all customers. There are many means by
which physically holding out can take place, e.g.,
personal solicitation and course of conduct. A
pilot’s course of conduct can be sufficient to find
that there has been a holding out of service to the
public because the course of conduct can indicate
a willingness to serve all who apply for service. The
actions or conduct used to develop the reputation
would be considered to be holding out.’’
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the aircraft for use. In any case, no
person may broadly offer the aircraft or
profit from the use of the aircraft and
any receipt of compensation is limited
to the expenses discussed in the next
section.
In support of this prohibition on
advertising, the FAA maintains that
when aviation operations are offered
broadly to the public for compensation,
the public expects, and the FAA
demands, a higher level of safety. This
expectation is evidenced by the
requirements that charter operators
comply with part 135, scheduled
airlines comply with part 121, and flight
schools utilize standard category aircraft
for flight training unless they possess a
LODA. Limited category, experimental,
and primary category aircraft do not
meet the same certification
requirements as standard category
aircraft. Therefore, additional
restrictions are necessary to maintain
the public’s expectation of safety.
theirWhile the FAA places great value
on the need for pilots to understand and
be familiar with the particular systems,
procedures, operating characteristics
and limitations of the aircraft they will
operate, the FAA must also ensure
public safety for services broadly
offered. Paragraph (a)(2) seeks to
balance these interests by imposing
restrictions for flight training only
outside the scope of personal use.
Beyond this, flight training offered to
the public is broadly available in
standard category aircraft or, if deemed
necessary, in a limited category or
experimental aircraft in accordance with
a LODA under proposed § 91.326(b),
discussed later in this preamble.
3. Compensation for Use of the Aircraft
(§ 91.326(a)(3))
To accomplish flight training, testing,
and checking in an experimental aircraft
without a LODA, section 5604(3) of the
2023 NDAA limits the type of
compensation that may be received for
the use of the aircraft. Proposed
§ 91.326(b) would codify this provision
and extend it to limited category,
experimental, or primary category
aircraft. Under the proposed rule (and
consistent with the legislative provision
for experimental aircraft), no person
would be permitted to receive
compensation for use of the aircraft for
a specific flight during which flight
training, checking, or testing was
accomplished, other than expenses for
owning, operating, and maintaining the
aircraft. Compensation for the use of the
aircraft that yields a profit for the
operator is prohibited under the
legislation and the proposed rule. The
FAA makes this distinction to foreclose
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the use of aircraft holding certain
special airworthiness certificates for
profit without the safety mitigations
provided by a LODA.
The FAA recognizes that operating an
aircraft naturally incurs expenses, such
as ongoing maintenance of the aircraft,
fuel used during a flight, and other
expenses associated with aircraft
ownership. The FAA notes that the
legislation ties the compensation to the
costs associated with the specific flight.
When money is exchanged for
transportation, the public expects, and
the FAA demands, a higher level of
safety for the flying public.77
Accordingly, operations for
compensation involving aircraft holding
special airworthiness certificates require
additional regulations to ensure public
safety. The use of standard category
aircraft remains broadly available for
those members of the public seeking to
receive flight training.
Consistent with these principles, a
person may operate for the purpose of
flight training in a limited category,
experimental, or primary category
aircraft without a LODA only when no
compensation is exchanged for the use
of the aircraft, other than expenses for
owning, operating, and maintaining the
aircraft.78 Operations involving
compensation for the use of the aircraft
that yields a profit will continue to
require a LODA.
E. LODA Framework (§ 91.326(b) and
(c))
While the FAA maintains that, in
general, limited category, experimental,
and primary category aircraft should not
be broadly offered for flight training,
checking, and testing, the FAA finds
that there is certain specialized training
that may be effectively and safely
accomplished in these aircraft under
certain conditions. Currently, persons
seeking to offer this type of flight
training for compensation or hire in
limited and primary category aircraft are
required to obtain a grant of
exemption.79 By contrast, persons
seeking to offer this type of flight
training in experimental aircraft may
apply for a LODA under § 91.319(h).
In § 91.326(b), the FAA proposes that
any person who wants to conduct flight
77 See legal interpretation for General Aviation
Manufacturers Association, addressed to Mr. Bunce,
dated Nov. 19, 2008.
78 See proposed § 91.326(a)(1) which specifies
that the authorized instructor cannot provide both
the training and the aircraft without a LODA.
79 See Federal Register Docket FAA–2013–0506
and FAA–2017–0942 for examples of grants of
exemption from § 91.315 for the purpose of flight
training in limited category aircraft issued to
Delaware Aviation Museum Foundation and
Stallion 51 Corporation, respectively.
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training, checking, or testing in limited
category and experimental aircraft 80
outside the restrictions and limitations
of proposed § 91.326(a) may apply for
deviation authority. Flight training,
checking, or testing operations that
would require a LODA include, but are
not limited to, receiving compensation
for flight training while also receiving
compensation for the use of the aircraft
and/or advertising or broadly offering
the use of an aircraft for flight training,
checking, or testing. For example, under
the proposed framework, a person who
owns an aircraft holding an
experimental or limited category special
airworthiness certificate, such as a
North American B–25 or Curtiss P–40,
would be required to hold a LODA to
offer transition or proficiency training to
the public.
The FAA first introduced deviation
authority in a 2004 final rule 81 to allow
for training that was, at that time, only
available through exemption. Pursuant
to § 91.319(a)(2), the 2004 final rule
prohibited carrying persons or property
in experimental aircraft for
compensation or hire. As flight training
is considered to be carrying persons for
compensation or hire, the deviation
authority offered in the 2004 final rule
allowed for issuance of a LODA in lieu
of an exemption for flight training in
experimental aircraft.
NTSB Safety Recommendation A–12–
035 advises the FAA to develop and
publish an advisory circular, or similar
guidance, for the issuance of a Letter of
Deviation Authority to conduct flight
instruction in an experimental aircraft,
to include sample documentation and
sample training materials.82 This
recommendation was in response to the
NTSB’s finding that providing pilots of
experimental amateur-built aircraft with
better access to training would enhance
flight safety. In response to NTSB Safety
Recommendation A–12–035, the FAA is
proposing LODA framework to provide
the FAA with an opportunity to
evaluate the operation and impose any
additional pilot qualifications and
maintenance requirements necessary for
safety when offering services to the
80 The FAA notes that certain primary category
aircraft would be excluded from § 91.326(c) because
proposed § 91.325(c) would make a LODA
unnecessary, as that rule would explicitly enable
flight training, checking, and testing without the
need for deviation authority.
81 Certification of Aircraft and Airmen for the
Operation of Light-Sport Aircraft, 69 FR 44771 (Jul.
27, 2004). In the final rule, the FAA amended
§ 91.319 by adding § 91.319(h) to allow deviation
authority from the provisions of § 91.319(a) for the
purpose of conducting flight training.
82 NTSB Safety Recommendation, A–12–28
through –39 (Jul. 12, 2012), available online:
https://www.ntsb.gov/safety/safety-recs/recletters/
A-12-028-039.pdf.
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public. Although § 91.319(h) authorizes
the FAA to issue deviation authority for
the purpose of flight training in
experimental aircraft, the FAA also
recognizes that, in certain
circumstances, there is value in flight
training in limited category aircraft. For
that reason, the FAA is proposing to
remove the LODA provision in
§ 91.319(h) and incorporate, expand,
and clarify the LODA framework in
proposed § 91.326(b) to apply to both
limited category and experimental
aircraft. The FAA has drafted an
advisory circular describing the LODA
application process and identifying the
factors that the FAA will consider in
determining whether a LODA should be
issued. The advisory circular is
available in the docket for this
rulemaking for public comment
concurrently with publication of this
NPRM. In a 2012 safety
recommendation report referencing
recommendations A–12–28 through
–39, the NTSB concluded that
experimental amateur-built aircraft
accidents involving loss of aircraft
control could be reduced if more pilots
received transition training.83 Since
promulgation of the 2004 final rule,
FAA and industry research indicates
that the training conducted under
§ 91.319(h) deviation authority
continues to reduce accidents in
experimental aircraft when conducted
in accordance with the conditions and
limitations of that deviation authority.
Therefore, expanding this deviation
authority to permit some flight training,
checking, and testing in limited category
aircraft is also likely to increase safety
and reduce accidents in those aircraft
because it would provide a greater
incentive to operators of limited
category aircraft to seek out and
complete such training.
The FAA anticipates that using a
single rule to cover deviation authority
for limited category and experimental
aircraft will promote a streamlined
process and relieve the burden on the
public to apply for an exemption for
limited category aircraft. Additionally,
incorporating the LODA framework
from § 91.319 into proposed § 91.326(b)
would make the application process
consistent for limited category and
experimental aircraft. The proposed
§ 91.326(b) framework would apply to
owners, operators, and training
providers who broadly offer, or receive
compensation for, the use of certain
83 NTSB Safety Recommendation, A–12–28
through –39 (Jul. 12, 2012), available online:
https://www.ntsb.gov/safety/safety-recs/recletters/
A-12-028-039.pdf.
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aircraft for specialized flight training,
checking, and testing.
Flight training, checking, or testing in
limited category aircraft are currently
only available by grant of exemption
from the regulations. The FAA finds this
burdensome and labor intensive not
only for the agency but also the persons
offering this specialized training. Since
the 2004 final rule, § 91.319 has
provided this training through deviation
authority, while maintaining an
equivalent level of safety. As a result,
the FAA concludes that implementing
the LODA framework on a broader scale
will similarly support public safety,
reduce administrative costs and
burdens, and increase operator
efficiency.
In further support of codifying a
consolidated LODA framework in
§ 91.326(b), the FAA emphasizes the
safe and successful use of LODAs under
§ 91.319. Under § 91.319(h), the FAA
has historically granted LODAs for
specialized training in experimental
aircraft that could not otherwise be
obtained in aircraft holding standard
airworthiness certificates, e.g., modelspecific training and jet upset recovery
training. These LODAs have been issued
to operators who demonstrate that their
flight instructors, trainees, and aircraft
meet specific additional requirements
above those generally required to
operate experimental aircraft. As
currently used under § 91.319, LODAs
increase public safety because they
support minimum pilot qualifications,
structured training curricula, and
additional aircraft maintenance
inspection requirements. Issuance of a
LODA enables the FAA to provide
oversight of training and maintenance of
the aircraft and place certain restrictions
on those who participate. The FAA
finds it necessary to place these
restrictions within the LODA to ensure
safety to the public paying for training
in these aircraft who may not be familiar
with aircraft holding special
airworthiness certificates. Evaluation of
the training program ensures a
structured and complete training
syllabus. The operator and participant
must comply with certain conditions
and limitations issued with a LODA.
Each operator must use aircraft-specific
flight and ground training curricula. The
operator must keep a record of the
training given for a period of three
years. Persons providing training,
checking, and testing must be
authorized under part 61 or part 183, as
applicable, for the specific operation
and must be qualified in the aircraft to
be used. These parameters and oversight
requirements ensure the safety of the
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1. Granting, Amending, and Cancelling
a LODA (§ 91.326(b)(1) and (2))
The FAA proposes to add
§ 91.326(b)(1) and (2) to prescribe the
manner in which the FAA may issue,
cancel, and amend LODAs. Particularly,
§ 91.326(b)(1) clarifies that operators
would be granted relief from §§ 91.315
or 91.319(a) through a LODA. In offering
this deviation authority in the form of
a letter, the FAA intends to model the
proposed deviation authority after the
current deviation authority provided in
§ 91.319(h) that would be superseded by
proposed § 91.326(b) if adopted.
In addition, the FAA proposes to add
§ 91.326(b)(2) to enable the FAA to
cancel or amend a LODA if it
determines that the deviation holder has
failed to comply with the conditions
and limitations or at any time if the
Administrator determines that the
deviation is no longer necessary or in
the interest of safety. For example, the
FAA would be able to cancel a LODA
for non-compliance with the terms and
conditions of the LODA. Likewise, a
LODA could be cancelled when a
significant number of identical aircraft
holding standard airworthiness
certificates become available. Once an
aircraft is certificated in the standard
category and significant numbers are
available, the need for the LODA may be
unnecessary.
Under proposed § 91.326(b)(2), a
LODA could also be amended for safety
concerns. For example, the FAA may,
when necessary, revise the conditions
and limitations or require corrective
action to adequately mitigate safety
concerns and risk factors as they
become known. In conclusion, proposed
§ 91.326(b)(2) affords the FAA flexibility
to modify or cancel the LODA, as
needed, based on changing
circumstances.
2. Requirements for a LODA
(§ 91.326(b)(3))
In § 91.326(b)(3), the FAA proposes to
codify a timeline for operators to submit
LODA applications, the form and
manner requirements for submission,
and the information that the applicant
should provide. As proposed, an
applicant must submit the request for a
LODA in a form and manner acceptable
to the Administrator. As set forth in the
draft LODA AC, Application and
Issuance Process for a Letter of
Deviation Authority Issued in
Accordance with Part 91, § 91.326, the
form and manner of an application
submission may include email, fax,
regular mail, or in-person delivery.
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Consistent with the current application
process under § 91.319(h), applicants
may apply for a LODA by contacting the
Flight Standards District Office (FSDO)
nearest their primary place of business.
FSDO personnel can provide the
applicant with specific instructions on
how to present the LODA request to that
FSDO and provide the applicant with
reference material and supporting
information.84 A draft of the advisory
circular has been published for
comment concurrently with this NPRM
and is available in the rulemaking
docket.
The proposed regulation would also
require that the application package be
submitted at least 60 days before the
date of intended operations. The 60-day
requirement is proposed to allow the
Administrator adequate time to review
stakeholder applications and supporting
documents. The current § 91.319(h)
LODA process has demonstrated that
this is a reasonable time allowance. The
FAA has determined a need for a 60-day
review period to ensure the
effectiveness of the LODA and the
proper conditions specified within each
LODA. The FAA notes that not all
LODA training syllabi or justifications
will be identical. Therefore, the 60-day
review period is intended to provide
sufficient time to assess each unique
application on a case-by-case basis.85
Proposed § 91.326(b)(3)(i) through (ix)
enumerate the items an applicant would
be required to include in their request
for deviation authority. The FAA
proposes to require this information
from the applicant to evaluate the
application to determine whether
granting the request for a LODA would
be in the interest of safety. Information
required by this proposed section
includes, for example, in
§ 91.326(b)(3)(ii), the name and contact
information of the individual with
ultimate responsibility for operations
authorized under the LODA. Likewise,
applicants must include a detailed
training program demonstrating that the
proposed activities would meet
intended training objectives. The
84 FAA Order 8900.1, Vol. 3, Chpt. 11, Sec. 1, Use
of Aircraft Issued Experimental Certificates in
Flight Training for Compensation or Hire, provides
information about the issuance of a LODA for
conducting flight training under § 91.319(h).
Additionally, the FAA is producing a new advisory
circular that would provide information, guidance,
and recommendations on the application and
issuance process for obtaining a LODA to operate
a limited category, primary category, or
experimental aircraft for compensation or hire
while providing flight training, checking, and
testing.
85 For those operators who currently hold an
exemption or a LODA, section IV(E)(6) of this
NPRM explains how operators would transition to
a LODA issued under the proposed rule.
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training program description may
include a training overview, a syllabus,
minimum instructor qualifications,
prerequisites for persons receiving
training, a description of teaching aids,
special equipment, simulators, and
flight training devices, as applicable,
and a method for recordkeeping.86 The
FAA proposes to request this training
program information from applicants to
ensure that, if granted, the requested
LODA would solely be used for
appropriate, limited training purposes,
which would in turn support safe
operation of the aircraft.
Additionally, the FAA proposes
§ 91.326(b)(3)(viii), which specifies
additional information required to be
submitted by LODA applicants when
formation and aerobatic training, or
training leading to the issuance of an
endorsement is requested. The
information required to be submitted for
this purpose would describe a process
by which a LODA holder will identify
whether a trainee has a specific need for
that training. The FAA is proposing to
require LODA applicants to provide
additional reasoning for conducting
formation or aerobatic training, or
training leading to the issuance of an
endorsement because those types of
training, generally, can be conducted in
standard category aircraft. Because the
FAA encourages training to be
conducted in the aircraft which a
trainee would most often operate, the
additional explanation would enable the
agency to determine whether granting
the applicant’s request for a LODA is
necessary in the interest of safety.
Persons with a specific need include, for
example, aircraft builders, purchasers,
owners, test pilots, and qualified
additional pilots under AC 90–116. The
aircraft used for training must have
similar handling qualities and flight
characteristics to the aircraft being built
or flown by the trainee to be eligible.
These persons will have regular access
to substantially similar aircraft and
would benefit from the additional
training, as training can expand pilot
skills that are transferrable to the aircraft
they will regularly fly. Persons without
a specific need can receive this training
in an aircraft holding a standard
airworthiness certificate.
3. Limitations in the LODA
(§ 91.326(b)(4))
Currently, under § 91.319(i), the
Administrator may prescribe additional
limitations that the Administrator finds
86 Additional information describing the items
applicants are encouraged to submit for a complete
LODA application is provided in the LODA
advisory circular, which has been placed in the
docket for this rulemaking.
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necessary for aircraft holding
experimental airworthiness certificates.
The conditions and limitations the FAA
places in LODAs under the discretion
provided in § 91.319(i) allow the FAA to
authorize appropriate training activity
not otherwise permitted by regulation
while ensuring the safety of the NAS
and persons and property on the
ground. Historically, the FAA has
included a list of general conditions and
limitations related to aircraft inspection
and maintenance requirements, airman
qualifications, operating limitations,
and training requirements in all LODAs
authorizing flight training. For example,
current LODAs contain a limitation that
requires the operator to keep a record of
the training given for a period of three
years. This condition ensures that the
FAA may conduct appropriate safety
oversight of operations conducted under
the LODA. Likewise, given the unique
risks posed by aircraft with ejection
seats, LODAs have contained a
requirement that trainees must complete
an acceptable course of ejection seat
training before training in an aircraft
with an ejection seat. The FAA also
includes conditions and limitations for
trainees and flight instructors with
regard to minimum qualifications such
as certificate, ratings, and endorsements
even when the trainee or flight
instructor is not acting as PIC of the
flight. LODA holders must comply with
the conditions and limitations imposed
under § 91.319 while conducting
activity under the LODA unless the
FAA provides relief from the conditions
and limitations in the LODA.
The FAA proposes to add a provision
similar to § 91.319(i) in proposed
§ 91.326(b)(4) to allow the
Administrator to continue to prescribe
additional conditions and limitations in
LODAs for experimental aircraft and
extend that allowance to LODAs issued
for training, testing, and checking in
limited category aircraft when necessary
for safety. The FAA would continue to
impose these safety conditions and
limitations on future training, checking,
and testing conducted under LODAs
issued under proposed § 91.326(b). The
FAA reiterates that, when training,
checking, and testing can be
successfully accomplished in a standard
category aircraft, a LODA to conduct
such training in aircraft with special
airworthiness certificates is not
appropriate. Where training, checking,
and testing is allowed in experimental
and limited category aircraft, the FAA
must have a means to ensure that safety
is maintained given the nature of the
aircraft used. The full list of conditions
and limitations is further described in
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the LODA Advisory Circular (AC), Table
4, ‘‘Additional Limitations,’’ which has
been placed in the docket for this
rulemaking. The FAA is proposing
slight modifications to the standard
conditions and limitations imposed
under § 91.319(i) and specifically
requests comment on all of the
conditions and limitations set forth in
Table 4 of the AC.
4. Persons Permitted on Board During
Operations Under a LODA
(§ 91.326(b)(5))
The FAA proposes to add
§ 91.326(b)(5) to limit the persons
permitted to be on board an aircraft
during operations under a LODA. The
airworthiness certification standards for
aircraft that hold special airworthiness
certificates do not rise to the level of
demonstrated safety and reliability of
those holding standard airworthiness
certificates. Besides the instructor,
designated examiner and the person
receiving the training, checking, or
testing, only persons deemed essential
to the safe operation of the aircraft
would be permitted to be carried on
board the aircraft. Notably, a pilot who
holds a temporary letter of authorization
(LOA) to act as PIC in an experimental
aircraft who also holds a flight
instructor certificate is generally not
authorized to conduct flight training
under a LODA. Temporary LOAs are
issued to a pilot to act as PIC in unique,
highly specific circumstances, such as
in the case of a first flight of a new or
first-of-a-kind aircraft. Temporary LOAs
are not issued to flight instructors for
the purpose of flight training under a
LODA.
In addition to authorized instructors,
designated examiners, and those
receiving the flight training or being
checked or tested, the FAA proposes to
permit persons essential for the safe
operation of the aircraft to be on board
during operations under a LODA. The
FAA notes that, to be conducted
effectively, flight training, checking, and
testing operations do not require
persons besides authorized flight
instructors, designated examiners, those
receiving flight training or being
checked or tested, and other persons
essential for the safe operation of the
aircraft to be on board. The addition of
persons not directly related to flight
training, testing, checking, or operation
of the aircraft may create unnecessary
distraction.
However, some aircraft holding
special airworthiness certificates may
have unique characteristics or design
features that necessitate additional
persons for safety. For example,
operators of certain vintage, multi-
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engine aircraft, like the North American
B–25 or Boeing B–17, choose to utilize
persons to perform certain functions
related to aircraft safety. These
functions may include observing
engines to monitor for smoke/
malfunction, observing engine
instruments to monitor for anomalies, or
operation of mechanical systems that
may not be in easy reach of the
flightcrew. Importantly, the
determination of whether a person is
essential for safety would be determined
based on several factors. The FAA
would consider whether these persons
are trained and designated by the
operator for these functions and are not
members of the general public. The FAA
would be unlikely to consider persons
unaffiliated with the operator and
designated to perform essential
functions ‘‘on the spot’’ to be genuinely
performing a duty essential to safety.
This precludes an operator from
assigning ‘‘essential functions’’ to
persons who do not normally
participate in the operation of the
aircraft. For example, a non-pilot friend
in the back seat given a nominal task or
observing training could be construed as
a ride for hire which is not
contemplated by the proposed
regulation. The FAA will also consider
whether the operator routinely fills a
particular position to determine if it is
essential. For example, if an operator
routinely utilizes a crew complement of
two pilots, but one day decides to put
a third person on board to ‘‘monitor
engines’’, the Administrator would
likely not consider that additional
person to be essential. However, if an
operator routinely utilizes a trained
crew chief who is present because there
is emergency mechanical equipment
beyond the reach of the flightcrew, like
an emergency gear extension crank, the
Administrator may consider that person
to be essential for safety. Likewise,
additional person(s) would not be
allowed to be present solely to receive
transportation or for recreational
purposes.
The specification of the persons
permitted to be carried on board the
aircraft in the proposed § 91.326(b)(5) is
meant to provide clarity to those
applying for a LODA under § 91.326. In
this regard, the list of recognized
persons is exclusive. Outside of the
personnel delineated in the proposed
§ 91.326(b)(5), the FAA does not
contemplate the additional carriage of
persons on board the aircraft even with
the issuance of a LODA. Such activity,
therefore, would remain prohibited
under this proposed rule.
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5. Types of Training (§ 91.326(b)(6))
The FAA proposes to limit the types
of training, testing, and checking that
may be authorized under the proposed
deviation authority. Currently, LODAs
are issued for certain specialized types
of experimental aircraft training.
Aircraft holding special airworthiness
certificates are not designed, built, or
maintained to the same standard as
those holding standard airworthiness
certificates. Therefore, the FAA
proposes to limit the availability of the
use of experimental and limited
category aircraft in flight training
offered to the public by limiting the
types of training available.
The types of training currently
available under a LODA are limited in
nature and generally contemplate only
specialized training that cannot be
accomplished in aircraft holding
standard airworthiness certificates. For
example, private pilot certification
training and testing is not available for
LODA training, as this can be
accomplished in aircraft holding
standard airworthiness certificates.
Conversely, jet upset recovery training
is available for LODA training because
there are no standard category jet
aircraft with limitations that allow for
aerobatic flight.
Except in specific circumstances,
LODAs should not be issued to permit
flight training toward the issuance of a
pilot certificate, rating, or operating
privilege that can be obtained through
training and testing in an aircraft with
a standard category airworthiness
certificate. For example, syllabi
developed solely for aerobatic training
or flight training that leads to the
issuance of an endorsement (e.g.,
tailwheel or pressurized aircraft, or a
complex or high performance airplane)
would not be considered appropriate for
issuance of a LODA. In addition, no
demonstration or discovery flights
would be authorized. Demonstration
flights, discovery flights, sales
demonstrations, introductory flights,
experiential flights, and other flights not
related to the flight training syllabus are
not authorized under a LODA.
On the contrary, a LODA may be
requested to facilitate specialized
training necessary to gain skills and
abilities to safely operate specific
aircraft. In addition, a LODA may be
used to receive training that cannot
otherwise be conducted in aircraft
holding a standard airworthiness
certificate. For example, an applicant
may utilize a LODA to participate in
model-specific transition training.
Similarly, an applicant may request a
LODA to conduct training and testing
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that leads to the issuance of a specific
experimental aircraft authorization,
limited category type rating, rotorcraft
gyroplane training at all levels, a sport
pilot certificate, or sport pilot operating
privilege.
The FAA includes a description of
each type of training contemplated
under this section in the draft LODA AC
placed in the docket to this rulemaking.
The FAA welcomes public comment on
the types of training authorized under a
LODA and the accompanying safety
rationale in response to publication of
the draft LODA AC.
The FAA notes that LODAs are
intended to bolster specialized training
in aircraft holding certain special
airworthiness certificates that cannot
otherwise be accomplished in aircraft
holding standard airworthiness
certificates. In support of this intent, as
noted, LODAs will not be issued
exclusively to permit aerobatic or
formation training or to permit training
for the sole purpose of issuance of an
endorsement. However, there are certain
circumstances which may warrant
aerobatic training, formation training, or
issuance of an endorsement as part of a
broader training program. This type of
training will only be available to
trainees who have a specific need to
receive such training. The AC published
concurrently with this NPRM provides
greater detail on when a person may be
considered to have a ‘‘specific need’’ to
receive this type of training, and the
other corresponding requirements for
airmen certification and flight
characteristics.
6. Status of Current LODAs (§ 91.326(c))
The FAA proposes to add § 91.326(c)
to provide clarity to those who hold a
LODA issued under § 91.319(h) at the
time of publication of the final rule if
the proposal is adopted. In
§ 91.326(c)(1) and (2), the FAA proposes
that any person who holds a LODA
which is still active as of the date of the
final rule (should this proposal be
adopted) would be permitted to
continue to operate under that LODA
subject to its terms and conditions for
24 months after the effective date of the
final rule. This proposed language
would ensure that LODA holders
continue to comply with the conditions
and limitations under which their
LODA was issued between the
publication of a final rule and the
termination of their LODAs granted
under § 91.319(h). The FAA proposes to
permit § 91.319(h) LODA holders to
continue operating under those LODAs
for 24 months after the effective date of
a final rule because it would ensure
those LODA holders have adequate time
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41213
to apply for a new LODA under the
§ 91.326(b) framework. In § 91.326(c)(3),
the FAA proposes to add that any
existing LODAs issued under
§ 91.319(h) may be cancelled or
amended at any time, as is currently
provided for under § 91.319(h).
Permitting those existing LODAs to be
cancelled or amended at any time
would enable the FAA to ensure the
continuing safety of operations
permitted under the existing LODAs.
Finally, in § 91.326(c)(4), the FAA
proposes to terminate all preexisting
LODAs issued under § 91.319(h) 24
months after the effective date of a final
rule. Current exemption holders would
instead apply for a LODA under
proposed § 91.326(b). Some operators
have been granted exemptions in
limited category aircraft for the purpose
of offering flight training to the public.
Except for exemptions issued for Living
History Flight Experiences (LHFE),
exemptions from § 91.315 issued for the
purpose of flight training in limited
category aircraft will not be renewed or
extended. LHFE exemptions are granted
for the purpose of providing flight
experiences in certain historicallysignificant aircraft. These LHFE
exemptions will be unaffected by this
proposed rulemaking.
In anticipation of the initial volume of
applications, the FAA encourages
applicants to submit their LODA
applications at least 180 days prior to
the 24-month expiration date. Although
present LODA holders are not
guaranteed deviation authority under
this new provision, this 180 days would
help current LODA holders ensure that
there is no gap in LODA coverage
between their existing LODA
terminating and their new LODA under
§ 91.326(b), should it be issued. In
addition, the FAA notes that currently,
LODAs are no longer required for
owners and operators of experimental
aircraft who comply with section 5604
of the 2023 NDAA (proposed to be
codified in § 91.326(a)).
V. Regulatory Notices and Analyses
Federal agencies consider impacts of
regulatory actions under a variety of
executive orders and other
requirements. First, Executive Order
12866 and Executive Order 13563, as
amended by Executive Order 14094
(‘‘Modernizing Regulatory Review’’),
direct that each Federal agency shall
propose or adopt a regulation only upon
a reasoned determination that the
benefits of the intended regulation
justify the costs. Second, the Regulatory
Flexibility Act of 1980 (Pub. L. 96–354)
requires agencies to analyze the
economic impact of regulatory changes
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Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
on small entities. Third, the Trade
Agreements Act (Pub. L. 96–39)
prohibits agencies from setting
standards that create unnecessary
obstacles to the foreign commerce of the
United States. Fourth, the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4) requires agencies to prepare a
written assessment of the costs, benefits
and other effects of proposed or final
rules that include a Federal mandate
that may result in the expenditure by
State, local, and tribal governments, in
the aggregate, or by the private sector, of
$100 million or more (adjusted annually
for inflation) in any one year. The
current threshold after adjustment for
inflation is $165 million, using the most
current (2021) Implicit Price Deflator for
the Gross Domestic Product.
In conducting these analyses, the FAA
has determined that this rule: (1) will
result in benefits that justify costs; (2) is
not a ‘‘significant regulatory action’’ as
defined in section 3(f) of Executive
Order 12866; (3) is not ‘‘significant’’ as
defined in DOT’s Regulatory Policy and
Procedures; (4) will not have a
significant economic impact on a
substantial number of small entities; (5)
will not create unnecessary obstacles to
the foreign commerce of the United
States; and (6) will not impose an
unfunded mandate on State, local, or
tribal governments, or on the private
sector.
A. Regulatory Evaluation
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1. Summary
The FAA analyzed the costs and
benefits for the provisions related to
PAO and the provisions related to
training, testing and checking in certain
aircraft with special airworthiness
certificates separately. The provisions
related to PAO impose no new costs and
the FAA expects the proposal will
reduce the costs for pilots conducting
PAO to maintain their civil certificates
and ratings.87 The provisions related to
training, testing and checking impose
approximately $100,000 in total onetime costs (undiscounted) over a period
of two years. Roughly half of these costs
stem from the requirement for the
current approximately 180 LODA
holders who broadly offer certain
aircraft with special airworthiness
certificates for training to reapply
within two years of the effective date of
87 The FAA does not maintain counts of pilots
who fly PAO for federal, state and local
governments and there is insufficient data for the
FAA to estimate the number of pilots affected by
the PAO proposal. See ‘‘How to Become a
Government Pilot’’ in Flying Magazine by James
Wynbrandt, Dec.13, 2017. Available at: https://
www.flyingmag.com/how-to-become-governmentpilot/. Last accessed Jul. 22, 2022.
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a final rule, if this proposed rule is
adopted. The other half of the costs
include the time costs to the FAA which
must process these applications over the
first two years. However, the FAA
expects the cost savings from the
streamlined regulatory framework, and
the safety benefits from greater access to
specialized training in aircraft with
certain special airworthiness
certificates, to exceed the initial costs.
Overall, the FAA concluded that this
proposal would maintain and promote
safety with minimal impact on cost.
FAA ratings, and recent flight
experience requirements.91
Additionally, the CAL FIRE 8300
manual contains specific references and
obligations for compliance with FAA
regulatory requirements applicable to
civil operations.92
Allowing pilots to credit their PAO
flight time would enable PAO pilots to
meet FAA flight experience and recency
requirements in the course of their
duties, thereby avoiding costs required
to accrue flight time and recent
experience in civil aircraft operations.
2. Logging Flight Time in Public Aircraft These avoided costs could include
avoided travel time, flight time, fuel
Operations
costs, and costs for use of a civil aircraft.
The FAA requires pilots to log flight
Additionally, the FAA finds that
time used to meet training, aeronautical recording PAO flight time will not
experience and recent flight experience
impose additional costs because PAO
requirements for civil pilot certificates
pilots already record their flight time to
88
and ratings. Currently, logging of flight meet the safety and insurance
time in aircraft used for PAO is limited
requirements of their employers. For
to official law enforcement flights. The
this reason, the FAA proposes to allow
FAA proposes to extend logging pilot
pilots to retroactively credit PAO flight
flight time in PAO not only to forestry
time. The FAA concludes that the
and fire protection services, as directed
proposal to allow pilots to record and
by section 517 of the FAA
credit PAO flight time will not
Reauthorization Act of 2018, but also to adversely affect safety, impose any
any PAO including operations involving additional costs, or pose novel policy or
national defense, intelligence missions,
legal issues.
search and rescue, aeronautical research
3. Flight Training, Testing, or Checking
and biological or geological resource
for Compensation in Certain Aircraft
management. The FAA expects the rule
With Special Airworthiness Certificates
to lower the cost for pilots conducting
PAO to maintain their civil certificates
Consistent with the 2023 NDAA, the
and ratings. Although pilots conduct
proposal allows owners or operators of
PAO outside of FAA civil certification
experimental aircraft to receive training,
and certain safety oversight regulations, testing, and checking in their aircraft
each government entity may maintain
without a LODA, in certain
its own certification system and
circumstances. The proposed rule
requirements for pilots. For many
would extend the provision to training,
government entities, this includes
testing, and checking in limited category
adopting the same standards as those
and primary category aircraft.
codified in 14 CFR to ensure safety and
Additionally, the proposal moves the
comply with liability insurance
current LODA process for experimental
89
requirements. For example, the
aircraft in § 91.319(h) to proposed
California Department of Forestry and
§ 91.326(b) and extends the LODA
Fire Protection (CAL FIRE), a state
process to include limited category and
agency that is the largest firefighting air
experimental light sport aircraft. The
90
force in the world with over 50
goal is to promote safety by making it
aircraft, requires its fixed-wing and
simpler for pilots to receive elective or
helicopter pilots to maintain FAA
specialized training relevant to aircraft
commercial pilot certificates, various
they regularly fly, while also ensuring
effective training and maintenance
88 14 CFR 61.51(a) does not require pilots to log
standards in certain aircraft with special
all flight time. Pilots are only required to record
airworthiness certificates broadly
aeronautical experience used to obtain civil
certificates and ratings and meet recent flight
offered for training, checking or testing,
experience requirements.
for compensation.
89 Wynbrandt, James W. ‘‘How to Become an
Overall, the FAA expects the training
Airborne Law Enforcement Pilot’’ in Flying, Dec.
proposal to increase safety, clarify and
18, 2017. Accessed Feb. 8, 2022, https://
www.flyingmag.com/how-to-become-an-airbornesimplify regulatory requirements,
law-enforcement-pilot/#:∼:text=Most%20state
reduce compliance costs for operators,
%20and%20municipal%20ALE,aren’t%20hard
administrative costs for the FAA and
%20to%20find.
90 Joiner, Stephen. ‘‘The Pilots Who Fight
California’s Wildfires’’ Smithsonian, August 2019.
Accessed Feb. 15, 2022, https://
www.smithsonianmag.com/air-space-magazine/
wildfire-wars-180972602/.
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91 CAL Fire Petition for Exemption 14 CFR
61.51(j), Nov. 23, 2020.
92 CAL Fire Petition for Exemption 14 CFR
61.51(j), Nov. 23, 2020.
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time and travel costs for pilots seeking
elective or specialized training, testing,
or checking. The FAA evaluated costs
and benefits against the baseline
established by the ‘‘Notification of
Policy for Flight Training in Certain
Aircraft,’’ published in the Federal
Register July 12, 2021,93 as well as the
recently passed 2023 NDAA, and
concluded the cost impacts are modest
and the proposal poses no novel legal or
policy issues.
4. Cost Savings
The FAA expects the proposal to
generate cost-savings for owners or
operators of certain aircraft with special
airworthiness certificates who seek
specialized training, testing, or checking
in aircraft they own or regularly operate.
Under current rules, owners or
operators of limited and primary
category aircraft must petition the FAA
for an exemption.94 The recently passed
2023 NDAA eliminated the LODA
requirement for owners and operators of
experimental aircraft receiving training
in their own aircraft. The proposal in
§ 91.326(a) would codify the legislation
with regard to LODAs for experimental
aircraft and eliminate the LODA
requirement for owners and operators
who receive training, testing, or
checking in their aircraft and pay
compensation for instruction. The
elimination of the exemption
requirements would result in time
savings for owners and operators who
would no longer need to apply for an
exemption. Likewise, the proposal
would reduce the administrative costs at
the FAA associated with evaluating and
tracking exemption petitions.
5. Costs and Cost Savings for Operations
Broadly Offered or Advertised
Under the proposed § 91.326(b), if an
operator of experimental or limited
category aircraft broadly offers or
advertises flight training, checking, and
testing in these aircraft, the operator
must obtain prior approval from the
FAA in the form of a LODA. To obtain
a LODA, the operator must submit an
application to the FAA that includes an
aircraft-specific training program at least
60 days in advance of training
lotter on DSK11XQN23PROD with PROPOSALS2
93 86
FR 36493 (Jul. 12, 2021), ‘‘Notification of
Policy for Flight Training in Certain Aircraft.’’ The
FAA published this policy statement to establish
simplified procedures for owners and operators of
certain aircraft with special airworthiness
certificates to obtain prior approval from the FAA
for training in their own aircraft. The policy
clarification also reaffirmed the need for certain
operators to obtain prior approval from the FAA in
the form of a LODA or exemption.
94 Under 14 CFR 11.5, a petition for exemption is
a request from an individual or entity requesting
relief from a current regulation.
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operations. Under the proposed change
to § 91.325, operators of certain primary
category aircraft will not require a
LODA and will no longer need to
petition for an exemption to conduct
training, testing, or checking.
Importantly, the proposed LODA
requirements under § 91.326(b) are
similar to the current LODA
requirements under § 91.319(h) for
operators of certain experimental
aircraft who broadly offer their aircraft
for training, testing, or checking. The
FAA also proposes to terminate current
training LODAs within two years of the
effective date of a final rule. However,
to ensure that all operations in which an
aircraft with a special airworthiness
certificate is ‘‘held out’’ for training,
testing, or checking comply with the
proposed requirements, holders of
current exemptions and LODAs
permitting these training operations will
need to apply for a LODA under the
proposed § 91.326(b). The FAA
proposes that these exemption and
LODA holders reapply within two years
of the effective date of the final rule.
The FAA finds that the cost impacts
of the LODA requirement for training
operations in experimental and limited
category aircraft ‘‘held out’’ broadly for
training will be small relative to the
current regulatory baseline. The costs
and cost savings will vary across groups
affected by the regulation. Therefore, the
FAA evaluated the cost impacts
separately for each of the identifiable
interest groups expected to realize costs
or savings.
Experimental aircraft operators who
currently hold LODAs under § 91.319(h)
to offer their aircraft broadly for training
will incur the cost of reapplying for
their LODA within two years of the
effective date of a final rule. The FAA
estimates the reapplication requirement
would generate approximately $100,000
in total undiscounted costs within the
first two years following the effective
date of a final rule. This estimate
includes the time costs to the
approximately 180 current LODA
holders 95 who reapply and the FAA
which must process these
applications.96 97 98
95 Estimate of current LODA holders under
§ 91.319(h) obtained from FAA Aviation Safety
(AVS) line of business. AVS currently tracks active
LODAs in FAA’s Web-based Operations Safety
System (WebOPSS).
96 The FAA estimated 4 hours per application for
the LODA holder to reapply. The undiscounted
applicant cost was calculated as burden hours times
average labor rate including benefits. The FAA used
an average wage including benefits of $63.25, which
is the average wage of flight instructors ($43.14)
divided by the percent of total employer costs of
employee compensation represented by wages
(68.2%) to account for benefits (31.8%). Flight
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41215
Under current guidance,99 LODA
applicants already submit most of the
proposed requirements related to
training plans, instructor qualifications,
maintenance, airworthiness, and recordkeeping in order to successfully obtain
and maintain a LODA. For the most
part, the cost of reapplying will consist
of the time to gather the relevant
information and submit the new
application. Current LODA holders who
reapply successfully will gain the
benefit of broadly offering their aircraft
for flight testing and checking. Current
LODAs only allow operators to broadly
offer or advertise their aircraft for flight
training and do not permit checking or
testing.
Similarly, the FAA expects minimal
costs for operators of limited category
aircraft with exemptions to apply for a
LODA prior to expiration of their
exemptions. Currently, there are fewer
than five active training exemptions for
limited category aircraft. Moreover,
these exemptions normally only have a
duration of two years and the FAA
expects most exemption holders to
already meet most of the LODA
requirements outlined in the
accompanying LODA Advisory Circular.
The cost will consist of the time to
gather the required information and
submit a new LODA application.
For future LODA applicants who seek
to broadly offer their experimental or
limited category aircraft for training,
testing, or checking, the proposal is
expected to lower compliance costs.
Although the proposed LODA
requirements are similar to current
requirements for operators who broadly
offer aircraft holding certain special
airworthiness certificates for training,
instructor wages are the Bureau of Labor Statistics
wage estimate for commercial pilots employed at
technical and trade schools. Accessed Apr. 12,
2022, https://www.bls.gov/oes/current/
oes532012.htm.
97 The undiscounted FAA cost was calculated as
burden hours times average labor rate including
benefits. The FAA used an average wage including
benefits of $79.30, which is the wage of FG–13 Step
5 FAA aviation safety inspectors ($58.20) in the
Washington-Baltimore-Arlington Metro Area in
2022 plus benefits (36.25% of wages).
97FAA Order 8900.1, Flight Standards
Management Information System, Vol. 3, Chpt. 11,
Sec. 1. Use of Aircraft Issued Experimental
Certificates in Flight Training for Compensation or
Hire.
98 The undiscounted FAA cost was calculated as
burden hours times average labor rate including
benefits. The FAA used an average wage including
benefits of $79.30, which is the wage of FG–13 Step
5 FAA aviation safety inspectors ($58.20) in the
Washington-Baltimore-Arlington Metro Area in
2022 plus benefits (36.25% of wages).
99 FAA Order 8900.1, Flight Standards
Management Information System, Vol. 3, Chpt. 11,
Sec. 1. Use of Aircraft Issued Experimental
Certificates in Flight Training for Compensation or
Hire.
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the simplified regulatory structure and
guidance in the accompanying advisory
circular is expected to make it easier for
potential applicants to understand
requirements and submit a successful
application.
Overall, the FAA does not expect the
proposal to significantly increase
administrative costs at the FAA. The
FAA will incur costs within the first
two years of a final rule’s effective date
to process LODA applications from the
small subset of current holders of
LODAs or exemptions required to
reapply under the proposal. However, in
the long run the streamlined regulatory
structure and guidance is expected to
reduce the amount of time the FAA
must spend obtaining additional
information from applicants and
evaluating applications.
Finally, the clarification and
simplification of the LODA process for
operators of aircraft with certain special
airworthiness certificates who advertise
or broadly offer their aircraft for
training-might ultimately lower travel
costs for pilots seeking the types of
supplemental and specialized training
envisioned under the proposed
§ 91.326(b). If more operators
successfully apply for LODAs to broadly
offer specialized training, pilots
interested in receiving this optional
specialized training might not have to
travel as far to receive it. For example,
the FAA recognizes that training in an
Experimental Light-Sport Aircraft
(ELSA) is beneficial for pilots to gain
familiarity with the performance and
handling qualities of other light-sport
aircraft and ultralights. Currently, there
are some two-seat aircraft that perform
and handle similarly to an ultralight,
certificated as Special Light-Sport
Aircraft (SLSA) available to conduct
training, but not available in sufficient
numbers for widespread availability.
Under the proposal, the availability of
ELSA for training through LODAs might
enable pilots of other light-sport aircraft
and ultralights to receive optional
training without traveling as far,
consequently, reducing fuel costs
incurred from travel, as well as the time
cost of travel.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA)
of 1980 (Pub. L. 96–354), as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub.
L. 104–121) and the Small Business Jobs
Act of 2010 (Pub. L. 111–240), requires
Federal agencies to consider the effects
of the regulatory action on small
business and other small entities and to
minimize any significant economic
impact. The term ‘‘small entities’’
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comprises small businesses and not-forprofit organizations that are
independently owned and operated and
are not dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
Agencies must perform a review to
determine whether a rule will have a
significant economic impact on a
substantial number of small entities. If
the agency determines that it will, the
agency must prepare a regulatory
flexibility analysis as described in the
RFA. However, if an agency determines
that a rule is not expected to have a
significant economic impact on a
substantial number of small entities,
section 605(b) of the RFA provides that
the head of the agency may so certify
and a regulatory flexibility analysis is
not required. The certification must
include a statement providing the
factual basis for this determination with
a reasoned explanation.
While the proposed rule would likely
impact a substantial number of small
entities, it would have a minimal
economic impact. The PAO proposal
does not impose any new requirements
or costs on small entities. It fulfills the
mandate in section 517 of the FAA
Reauthorization Act of 2018 that directs
the FAA to allow pilots of aircraft under
the control of forestry and fire
protection agencies engaged in PAO to
credit their flight time towards FAA
civil regulatory requirements. It enables
pilots to log aeronautical experience and
recent flight experience accumulated
during PAO and to credit this
experience toward FAA civil certificates
and ratings.
The proposal also simplifies the
regulations for operators of certain
aircraft with special airworthiness
certificates to obtain a LODA allowing
them to broadly offer their aircraft for
elective or specialized flight training,
testing, and checking. Relative to
current requirements to obtain a LODA
or exemption for these training
operations, the proposal clarifies
requirements and creates uniform
standards. The proposal also expands
the types of aircraft eligible for flight
training, testing, and checking under a
LODA. The only new cost imposed by
the proposal affects the holders of
approximately 180 active training
LODAs who will be required to reapply
within two years of the effective date of
a final rule. The FAA proposes to
require these operators to reapply to
ensure compliance with the proposed
standardized LODA process. The FAA
estimates that each current LODA
holder would spend approximately four
hours to resubmit a LODA application at
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an average cost of approximately $250
per LODA.100
The draft LODA advisory circular,
published concurrently with this
proposed rule, provides guidance,
sample documentation, and training
materials to fulfill Recommendation A–
12–035 of the National Transportation
Safety Board (NTSB). The FAA expects
the LODA advisory circular to clarify
the application process, thereby making
it easier for potential applicants to
understand requirements and submit a
successful application.
If an agency determines that a
rulemaking will not result in a
significant economic impact on a
substantial number of small entities, the
head of the agency may so certify under
section 605(b) of the RFA. Therefore, the
FAA proposes to certify that the rule
will not have a significant economic
impact on a substantial number of small
entities. The FAA welcomes comments
on the basis of this certification.
C. International Trade Impact
Assessment
The Trade Agreements Act of 1979
(Pub. L. 96–39), as amended by the
Uruguay Round Agreements Act (Pub.
L. 103–465), prohibits Federal agencies
from establishing standards or engaging
in related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
Pursuant to these Acts, the
establishment of standards is not
considered an unnecessary obstacle to
the foreign commerce of the United
States, so long as the standard has a
legitimate domestic objective such as
the protection of safety and does not
operate in a manner that excludes
imports, that meet this objective. The
statute also requires consideration of
international standards and, where
appropriate, that they be the basis for
U.S. standards.
The FAA has assessed the potential
effect of this proposed rule and
determined that the proposal responds
to a domestic safety objective. The FAA
has determined that this proposed rule
is not considered an unnecessary
obstacle to trade.
100 Cost per resubmitted LODA calculated as four
hours times the average labor rate, including
benefits. The FAA used an average wage including
benefits of $63.25, which is the average wage of
flight instructors ($43.14) divided by the percent of
total employer costs of employee compensation
represented by wages (68.2%) to account for
benefits (31.8%). Flight instructor wages are the
Bureau of Labor Statistics wage estimate for
commercial pilots employed at technical and trade
schools. Accessed Apr. 12, 2022, https://
www.bls.gov/oes/current/oes532012.htm.
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D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4)
requires each Federal agency to prepare
a written statement assessing the effects
of any Federal mandate in a proposed or
final agency rule that may result in an
expenditure of $100 million or more (in
1995 dollars) in any one year by State,
local, and tribal governments, in the
aggregate, or by the private sector; such
a mandate is deemed to be a ‘‘significant
regulatory action.’’ The FAA currently
uses an inflation-adjusted value of $165
million in lieu of $100 million. This
proposed rule does not contain such a
mandate; therefore, the requirements of
Title II of the Act do not apply.
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E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(44 U.S.C. 3507(d)) requires that the
FAA consider the impact of paperwork
and other information collection
burdens imposed on the public.
According to the 1995 amendments to
the Paperwork Reduction Act (5 CFR
1320.8(b)(2)(vi)), an agency may not
collect or sponsor the collection of
information, nor may it impose an
information collection requirement
unless it displays a currently valid
Office of Management and Budget
(OMB) control number.
As part of this rulemaking action, the
FAA is also requesting OMB approval
for a new one-time information
collection request. As required by the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the FAA has submitted
these proposed information collection
revisions to OMB for its review.
Summary: The proposed rule creates
§ 91.326(b) which establishes unified
requirements for operators who broadly
offer certain aircraft with special
airworthiness certificates for flight
training, testing, or checking to obtain
prior approval from the FAA in the form
of a LODA. Through the LODA process
the FAA provides oversight of operators
who advertise or broadly offer certain
aircraft with special airworthiness
certificates for elective and specialized
flight training, testing, and checking.
The advisory circular published
concurrently with this proposed rule
provides guidance, sample
documentation, and training materials
to fulfill Recommendation A–12–035 of
the National Transportation Safety
Board (NTSB). The FAA expects that the
proposed § 91.326(b) and advisory
circular will ensure consistency and
clarify the application process, thereby
making it easier for potential applicants
to understand requirements and submit
a successful application.
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Under the current § 91.319(h),
operators of certain experimental
aircraft already have the opportunity to
apply for LODAs permitting them to
advertise or broadly offer their aircraft
for flight training, testing, or checking in
exchange for compensation that
includes use of the aircraft. The
proposed § 91.326(b) extends the
opportunity to apply for a LODA to
operators of aircraft not currently
eligible for LODAs under § 91.319(h).
Previously ineligible aircraft that would
be eligible for operations under a LODA
in the proposed § 91.326(b) include
experimental light-sport aircraft (ELSA)
and limited category aircraft. Under
current rules, operators of primary
category and limited category aircraft
are required to petition the FAA for an
exemption 101 to broadly offer their
aircraft for flight training, testing or
checking. Under proposed changes to
§ 91.325 operators of primary category
aircraft will be permitted to conduct
training operations without obtaining a
LODA or exemption.
In addition to extending LODA
eligibility to operators of additional
limited category aircraft, the proposed
rule will also terminate all active
§ 91.319(h) LODAs for training
operations for compensation in
experimental aircraft within two years
of the effective date of the final rule.
Exemptions issued for flight training in
limited and primary category aircraft
will not be renewed. Exemptions issued
for Living History Flight Experiences are
not affected by the proposed rule. The
FAA expects operators of experimental
or limited category aircraft with active
LODAs or exemptions,102 respectively,
who broadly offer their aircraft for
training to apply for a LODA under the
proposed § 91.326(b) within this time
period. The FAA currently issues
LODAs without expiration dates for
eligible operators who broadly offer
their aircraft for training. The FAA is
proposing to terminate current LODAs
in order to ensure that all operators are
in compliance with the proposed
requirements.
101 Under 14 CFR 11.5, a petition for exemption
is a request from an individual or entity requesting
relief from a current regulation. The FAA expects
that the new guidance associated with the LODA
process will reduce burden hours relative to
petitioning for exemptions.
102 Exemptions are typically only valid for two
years. Therefore, the FAA does not expect current
exemption holders to be materially affected by the
requirement to apply for a LODA within 2 years.
The FAA expects that the information and time
requirements to apply for a LODA under § 91.326(c)
for current exemption holders will be similar to the
time and information requirements to renew an
exemption, but substantially less than the time
requirements to petition for a new exemption.
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41217
The burden analysis in this proposed
rule only applies to holders of active
LODAs who must reapply within two
years of the effective date of a final rule.
On February 14, 2022, the FAA
published a separate notice to revise
OMB Control Number 2120–0005 for
information collection related to LODAs
for flight training, testing, and checking
in certain experimental aircraft.103
Use: The FAA will use the
information provided by LODA
applicants to promote safety for
specialized flight training, testing, or
checking offered to the public in
experimental and limited category
aircraft. The LODA framework enables
the FAA to provide oversight to ensure
effective training and maintenance of
the aircraft.
Respondents: The FAA estimates that
within the first two years of the effective
date of a final rule, approximately 180
current LODA holders will reapply for
LODAs.104
Frequency: One time per applicant.
The proposed LODAs do not have an
expiration period.
Annual Burden Estimate: For current
LODA holders who reapply within the
first two years of the effective date of a
final rule, the FAA estimates a one-time
burden of four hours per applicant. The
FAA expects the applicant to keep the
required information as a condition of
the current LODA, so the burden of
reapplying will consist of the time to
gather the required information and
resubmit. Current LODA holders are
already required to meet the
recordkeeping and other proposed
requirements. Therefore, the proposal
creates no new annual burden for
current LODA holders who reapply. The
proposed LODAs do not have an
expiration date, so there will be no
renewal costs. The FAA assumes the
burden hours per application for the
FAA to process applications from
current LODA holders who reapply will
be four hours.
Table 1 presents the annual burden
hours and undiscounted costs for the
approximately 180 current LODA
holders required to reapply within the
first two years of the effective date of a
final rule. Table 2 presents the burden
estimate and costs for the Federal
Government to process these LODA
applications. The total undiscounted
cost of burden hours for applicants and
the FAA combined is estimated to be
103 See 87 FR 8335 (Feb. 14, 2022) ‘‘Clearance of
Renewed Approval of Information Collection:
General Operating and Flight Rules FAR 91 and
FAR 107.’’
104 The FAA Web-based Operations Safety System
(WebOPSS) contains 180 LODAs for experimental
aircraft under § 91.319(h).
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$102,642 over two years. Total
discounted (at 7 percent) cost of burden
hours is estimated to be $91,743 over
two years. Total annualized costs at a 7
percent discount rate are $47,423.
TABLE 1—TOTAL BURDEN HOURS AND COSTS FOR CURRENT LODA HOLDERS WHO MUST REAPPLY
Number of LODA
applications
from current
LODA holders 1
Year
Hours per
application
current
LODA holders
Total
burden hours
Total cost for
applicants
undiscounted 2
1 ...........................................................................................................
2 ...........................................................................................................
60
120
4
4
240
480
$15,181
30,362
Total ..............................................................................................
Mean .............................................................................................
............................
............................
............................
............................
720
360
45,543
22,772
LODA = Letter of Deviation Authority.
1 The FAA assumes that approximately one third of current LODA holders will reapply the first year after the effective date of a final rule and
the remaining LODA holders will reapply in the second year.
2 Undiscounted applicant cost calculated as burden hours times average labor rate including benefits. The FAA used an average wage including benefits of $63.25, which is the average wage of flight instructors ($43.14) divided by the percent of total employer costs of employee compensation represented by wages (68.2%) to account for benefits (31.8%). Flight instructor wages are the Bureau of Labor Statistics wage estimate for commercial pilots employed at technical and trade schools. Accessed April 12, 2022, https://www.bls.gov/oes/current/oes532012.htm.
TABLE 2—TOTAL BURDEN HOURS AND COST TO FEDERAL GOVERNMENT TO PROCESS APPLICATIONS FROM CURRENT
LODA HOLDERS WHO MUST REAPPLY
Number of LODA
applications
from current
LODA holders 1
Year
Hours per
application
FAA
Total
burden hours
FAA
FAA cost
undiscounted 2
1 ...........................................................................................................
2 ...........................................................................................................
60
120
4
4
240
480
$19,033
38,066
Total ..............................................................................................
Mean .............................................................................................
180
90
............................
............................
720
360
57,098
28,549
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LODA = Letter of Deviation Authority.
1 The FAA assumes that approximately one third of current LODA holders will reapply the first year after the effective date of the final rule and
the remaining LODA holders will reapply in the second year.
2 Undiscounted government cost calculated as burden hours times average labor rate including benefits. The FAA used an average wage including benefits of $79.30, which is the wage of FG–13 Step 5 FAA aviation safety inspectors ($58.20) in the Washington-Baltimore-Arlington
Metro Area in 2022 plus benefits (36.25% of wages).
The agency is soliciting comments
to—
(1) Evaluate whether the proposed
information requirement is necessary for
the proper performance of the functions
of the agency, including whether the
information will have practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden hours
and cost;
(3) Enhance the quality, utility and
clarity of the information to be
collected; and
(4) Minimize the burden of collecting
information on those who are to
respond, including by using appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology.
Individuals and organizations may
send comments on the information
collection requirement to the address
listed in the ADDRESSES section at the
beginning of this preamble by August
22, 2023. Comments also should be
submitted to the Office of Management
and Budget, Office of Information and
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Regulatory Affairs, Attention: Desk
Officer for FAA, New Executive Office
Building, Room 10202, 725 17th Street
NW, Washington, DC 20053.
F. International Compatibility
In keeping with U.S. obligations
under the Convention on International
Civil Aviation, it is FAA policy to
conform to International Civil Aviation
Organization (ICAO) Standards and
Recommended Practices to the
maximum extent practicable. The FAA
has reviewed the corresponding ICAO
Standards and Recommended Practices
and has identified a difference with
these proposed regulations. The FAA
notes that, under proposed § 61.51(f)(4),
pilots designated by a government entity
as an SIC may log SIC time during
authorized PAO with certain
limitations. The FAA determined that
this provision is inconsistent with the
ICAO standard for logging. Accordingly,
all pilots who log flight time under this
provision and apply for an ATP
certificate would have a limitation on
the certificate indicating that the pilot
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Fmt 4701
Sfmt 4702
does not meet the PIC aeronautical
experience requirements of ICAO. This
limitation may be removed when the
pilot presents satisfactory evidence that
he or she has met the ICAO standards.
G. Environmental Analysis
FAA Order 1050.1F identifies FAA
actions that are categorically excluded
from preparation of an environmental
assessment or environmental impact
statement under the National
Environmental Policy Act in the
absence of extraordinary circumstances.
The FAA has determined this proposed
rule qualifies for the categorical
exclusion identified in paragraph 5–6.6f
and involves no extraordinary
circumstances.
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this
rulemaking under the principles and
criteria of Executive Order 13132,
Federalism. The agency has determined
that this action would not have a
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substantial direct effect on the States, or
the relationship between the Federal
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, and, therefore,
would not have federalism implications.
closing date for comments. The FAA
will consider comments filed after the
comment period has closed if it is
possible to do so without incurring
expense or delay. The FAA may change
this proposal in light of the comments
it receives.
B. Executive Order 13211, Regulations
That Significantly Affect Energy Supply,
Distribution, or Use
B. Confidential Business Information
Confidential Business Information
(CBI) is commercial or financial
information that is both customarily and
actually treated as private by its owner.
Under the Freedom of Information Act
(FOIA), 5 U.S.C. 552, CBI is exempt
from public disclosure. If your
comments responsive to this NPRM
contain commercial or financial
information that is customarily treated
as private, that you actually treat as
private, and that is relevant or
responsive to this NPRM, it is important
that you clearly designate the submitted
comments as CBI. Please mark each
page of your submission containing CBI
as ‘‘PROPIN.’’ The FAA will treat such
marked submissions as confidential
under the FOIA, and they will not be
placed in the public docket of this
NPRM. Submissions containing CBI
should be sent to the person identified
in the FOR FURTHER INFORMATION
CONTACT section of this document. Any
commentary the FAA receives which is
not specifically designated as CBI will
be placed in the public docket for this
rulemaking.
The FAA analyzed this rulemaking
under Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use. The agency has
determined that it would not be a
‘‘significant energy action’’ under the
executive order and would not be likely
to have a significant adverse effect on
the supply, distribution, or use of
energy.
C. Executive Order 13609, International
Cooperation
Executive Order 13609, Promoting
International Regulatory Cooperation,
promotes international regulatory
cooperation to meet shared challenges
involving health, safety, labor, security,
environmental, and other issues and to
reduce, eliminate, or prevent
unnecessary differences in regulatory
requirements. The FAA has analyzed
this action under the policies and
agency responsibilities of Executive
Order 13609, and has determined that
this action would have no effect on
international regulatory cooperation.
VII. Additional Information
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A. Comments Invited
The FAA invites interested persons to
participate in this rulemaking by
submitting written comments, data, or
views. The Agency also invites
comments relating to the economic,
environmental, energy, or federalism
impacts that might result from adopting
the proposals in this document. The
most helpful comments reference a
specific portion of the proposal, explain
the reason for any recommended
change, and include supporting data. To
ensure the docket does not contain
duplicate comments, commenters
should submit only one time if
comments are filed electronically or
commenters should send only one copy
of written comments if comments are
filed in writing.
The FAA will file in the docket all
comments it receives, as well as a report
summarizing each substantive public
contact with FAA personnel concerning
this proposed rulemaking. Before acting
on this proposal, the FAA will consider
all comments it receives on or before the
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C. Electronic Access and Filing
A copy of this notice of proposed
rulemaking, all comments received, any
final rule, and all background material
may be viewed online at
www.regulations.gov using the docket
number listed above. A copy of this
rulemaking will be placed in the docket.
Electronic retrieval help and guidelines
are available on the website. It is
available 24 hours each day, 365 days
each year. An electronic copy of this
document may also be downloaded
from the Office of the Federal Register’s
website at www.federalregister.gov and
the Government Publishing Office’s
website at www.govinfo.gov. A copy
may also be found at the FAA’s
Regulations and Policies website at
www.faa.gov/regulations_policies.
Copies may also be obtained by
sending a request to the Federal
Aviation Administration, Office of
Rulemaking, ARM–1, 800 Independence
Avenue SW, Washington, DC 20591, or
by calling (202) 267–9677. Commenters
must identify the docket or notice
number of this rulemaking.
All documents the FAA considered in
developing this proposed rule,
including economic analyses and
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41219
technical reports, may be accessed in
the electronic docket for this
rulemaking.
List of Subjects
14 CFR Part 61
Aircraft, Airmen, Alcohol abuse,
Aviation safety, Drug abuse, Flight
instruction, Recreation and recreation
areas, Reporting and recordkeeping
requirements, Security measures,
Teachers.
14 CFR Part 91
Agriculture, Air carriers, Air taxis, Air
traffic control, Aircraft, Airmen,
Airports, Aviation Safety, Charter
flights, Freight, Reporting and
recordkeeping requirements, Security
measures, Transportation.
The Proposed Amendment
For the reasons discussed in the
preamble, the Federal Aviation
Administration proposes to amend
chapter I of title 14, Code of Federal
Regulations as follows:
PART 61—CERTIFICATION: PILOTS,
FLIGHT INSTRUCTORS, AND GROUND
INSTRUCTORS
1. The authority citation for part 61 is
revised to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 40113,
44701–44703, 44707, 44709–44711, 44729,
44903, 45102–45103, and 45301–45302, and
sec. 2307, Pub. L. 114–190, 130 Stat. 615 (49
U.S.C. 44703 note); and sec. 318, Pub. L.
115–254, 132 Stat. 3186 (49 U.S.C. 44703
note).
2. Amend § 61.51 by revising
paragraphs (f) and (j)(4) to read as
follows:
■
§ 61.51
Pilot logbooks.
*
*
*
*
*
(f) Logging second-in-command flight
time. A person may log second-incommand time only for that flight time
during which that person:
(1) Is qualified in accordance with the
second-in-command requirements of
§ 61.55, and occupies a crewmember
station in an aircraft that requires more
than one pilot by the aircraft’s type
certificate;
(2) Holds the appropriate category,
class, and instrument rating (if an
instrument rating is required for the
flight) for the aircraft being flown, and
more than one pilot is required under
the type certification of the aircraft or
the regulations under which the flight is
being conducted;
(3) Serves as second-in-command in
operations conducted in accordance
with § 135.99(c) of this chapter when a
second pilot is not required under the
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type certification of the aircraft or the
regulations under which the flight is
being conducted, provided the
requirements in § 61.159(c) are satisfied;
or
(4) Is designated by a government
entity as second in command when
operating in accordance with paragraph
(j)(4) of this section provided the aircraft
used is a large aircraft or turbo-jet
powered airplane; or holds or originally
held a type certificate that requires a
second pilot provided that:
(i) Second-in-command time logged
under paragraph (f)(4) of this section
may not be used to meet the
aeronautical experience requirements
for the private or commercial pilot
certificates or an instrument rating; and
(ii) An applicant for an airline
transport pilot certificate who logs
second in command time under
paragraph (f)(4) of this section is issued
an airline transport pilot certificate with
the limitation, ‘‘Holder does not meet
the pilot in command aeronautical
experience requirements of ICAO,’’ as
prescribed under Article 39 of the
Convention on International Civil
Aviation if the applicant does not meet
the ICAO requirements contained in
Annex 1 ‘‘Personnel Licensing’’ to the
Convention on International Civil
Aviation. An applicant is entitled to an
airline transport pilot certificate without
the ICAO limitation specified under this
paragraph when the applicant presents
satisfactory evidence of having met the
ICAO requirements and otherwise meets
the aeronautical experience
requirements of § 61.159.
*
*
*
*
*
(j) * * *
(4) An aircraft used to conduct a
public aircraft operation under 49
U.S.C. 40102(a)(41) and 40125.
*
*
*
*
*
■ 3. Amend § 61.57 by adding paragraph
(e)(5) to read as follows:
§ 61.57 Recent flight experience: Pilot in
command.
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*
*
*
*
*
(e) * * *
(5) Paragraphs (a) and (b) of this
section do not apply to a person
receiving flight training from an
authorized instructor, provided:
(i) The flight training is limited to the
purpose of meeting the requirements of
paragraphs (a) and (b) of this section;
(ii) Notwithstanding the provisions of
paragraphs (a) and (b), the person
receiving flight training meets all other
requirements to act as pilot in command
of the aircraft; and
(iii) The authorized instructor and the
person receiving flight training are the
sole occupants of the aircraft.
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■
4. Amend § 61.159 by revising
paragraph (e) to read as follows:
§ 61.413 What are the privileges of my
flight instructor certificate with a sport pilot
rating?
§ 61.159 Aeronautical experience: Airplane
category rating.
(a) If you hold a flight instructor
certificate with a sport pilot rating, you
are authorized, within the limits of your
certificate and rating, to conduct ground
training, flight training, certain checking
events, and to issue endorsements. The
kind of training and the endorsements
that may be issued are those required
for, or related to:
*
*
*
*
*
(6) A flight review or operating
privilege for a sport pilot, or training to
maintain or improve the skills of a sport
pilot;
*
*
*
*
*
(c) The privileges authorized in this
section do not permit a person who
holds a flight instructor certificate to
conduct operations that would
otherwise require an air carrier or
operating certificate or specific
authorization from the Administrator.
*
*
*
*
*
(e) An applicant who credits time
under paragraphs (b), (c), and (d) of this
section and § 61.51(f)(4) is issued an
airline transport pilot certificate with
the limitation, ‘‘Holder does not meet
the pilot in command aeronautical
experience requirements of ICAO,’’ as
prescribed under Article 39 of the
Convention on International Civil
Aviation.
*
*
*
*
*
■ 5. Amend § 61.161 by revising
paragraph (d) to read as follows:
§ 61.161 Aeronautical experience:
Rotorcraft category and helicopter class
rating.
*
*
*
*
*
(d) An applicant who credits time
under paragraph (c) of this section and
§ 61.51(f)(4) is issued an airline
transport pilot certificate with the
limitation, ‘‘Holder does not meet the
pilot in command aeronautical
experience requirements of ICAO,’’ as
prescribed under Article 39 of the
Convention on International Civil
Aviation.
*
*
*
*
*
■ 6. Amend § 61.193 by:
■ a. Revising paragraphs (a)
introductory text and (a)(7); and
■ b. Adding paragraph (c).
The revisions and addition read as
follows:
§ 61.193
Flight Instructor Privileges.
(a) A person who holds a flight
instructor certificate is authorized
within the limitations of that person’s
flight instructor certificate and ratings to
conduct ground training, flight training,
certain checking events, and to issue
endorsements related to:
*
*
*
*
*
(7) A flight review, operating
privilege, or recency of experience
requirement of this part, or training to
maintain or improve the skills of a
certificated pilot;
*
*
*
*
*
(c) The privileges authorized in this
section do not permit a person who
holds a flight instructor certificate to
conduct operations that would
otherwise require an air carrier or
operating certificate or specific
authorization from the Administrator.
■ 7. Amend § 61.413 by:
■ a. Revising paragraphs (a)
introductory text and (a)(6); and
■ b. Adding paragraph (c).
The revisions and addition read as
follows:
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PART 91—GENERAL OPERATING AND
FLIGHT RULES
8. The authority citation for part 91 is
revised to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g), 40101,
40103, 40105, 40113, 40120, 44101, 44111,
44701, 44704, 44709, 44711, 44712, 44715,
44716, 44717, 44722, 46306, 46315, 46316,
46504, 46506–46507, 47122, 47508, 47528–
47531, 47534; Sec. 5604 of Pub. L. 117–263.
■
9. Revise § 91.315 to read as follows:
§ 91.315 Limited category civil aircraft:
Operating limitations.
Except as provided in § 91.326 of this
part, no person may operate a limited
category civil aircraft carrying persons
or property for compensation or hire in
operations that:
(a) Require an air carrier or
commercial operator certificate issued
under part 119 of this chapter;
(b) Are listed in § 119.1(e) of this
chapter;
(c) Require management
specifications for a fractional ownership
program issued in accordance with
Subpart K of part 91 of this chapter; or
(d) Are conducted under parts 129,
133, or 137 of this chapter.
■ 10. Amend § 91.319 by:
■ a. Revising paragraphs (a)
introductory text, (a)(2), (d)(3), (e)(2)
and (f); and
■ b. Removing and reserving paragraph
(h).
The revisions read as follows:
§ 91.319 Aircraft having experimental
certificates: Operating limitations.
(a) Except as provided in § 91.326 of
this part, no person may operate an
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aircraft that has an experimental
certificate—
(1) * * *
(2) Carrying persons or property for
compensation or hire in operations that:
(i) Require an air carrier or
commercial operator certificate issued
under part 119 of this chapter;
(ii) Are listed in § 119.1(e) of this
chapter;
(iii) Require management
specifications for a fractional ownership
program issued in accordance with
subpart K of part 91 of this chapter; or
(iv) Are conducted under parts 129,
133, or 137 of this chapter.
*
*
*
*
*
(d) * * *
(3) Notify air traffic control of the
experimental nature of the aircraft when
utilizing air traffic services.
(e) * * *
(2) Conduct operations authorized
under § 91.326 of this part.
(f) No person may lease an aircraft
that is issued an experimental certificate
under § 21.191(i) of this chapter,
except—
(1) In accordance with paragraph
(e)(1) of this section; or
(2) To conduct a solo flight in
accordance with a training program
included as part of the deviation
authority specified under § 91.326(b) of
this part.
*
*
*
*
*
(h) [Reserved]
*
*
*
*
*
■ 11. Revise § 91.325 to read as follows:
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§ 91.325 Primary category aircraft:
Operating limitations.
(a) Unless provided for in this section,
no person may operate a primary
category aircraft carrying a person or
property for compensation or hire in
operations that:
(1) Require an air carrier or
commercial operator certificate issued
under part 119 of this chapter;
(2) Are listed in § 119.1(e) of this
chapter;
(3) Require management
specifications for a fractional ownership
program issued in accordance with
subpart K of part 91 of this chapter; or
(4) Are conducted under parts 129,
133, or 137 of this chapter.
(b) Except as provided in § 91.326(a),
no person may operate a primary
category aircraft that is maintained by
the pilot-owner under an approved
special inspection and maintenance
program except—
(1) The pilot-owner; or
(2) A designee of the pilot-owner,
provided that the pilot-owner does not
receive compensation for the use of the
aircraft.
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(c) A primary category aircraft that is
maintained by an appropriately rated
mechanic or an authorized certificated
repair station in accordance with the
applicable provisions of part 43 of this
chapter may be used to conduct flight
training, checking, and testing for
compensation or hire.
■ 12. Add § 91.326 to subpart D to read
as follows:
§ 91.326 Exception to Operating Certain
Aircraft for Compensation or Hire.
(a) For purposes of §§ 91.315, 91.319,
and 91.325 of this part, an authorized
instructor, registered owner, lessor, or
lessee may operate an aircraft for the
purpose of flight training, checking, or
testing, and in the case of an
experimental aircraft, for a purpose
other than that for which the certificate
was issued, provided—
(1) The authorized 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 the 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.
Compensation for the use of the aircraft
for profit is prohibited.
(b) Except as provided in paragraphs
(a) and (c) of this section, no person may
conduct flight training, checking, or
testing in a limited category or
experimental aircraft without deviation
authority issued under this paragraph.
(1) No person may operate under this
section without a letter of deviation
authority issued by the Administrator.
(2) The FAA may cancel or amend a
letter of deviation authority if it
determines that the deviation holder has
failed to comply with the conditions
and limitations or at any time if the
Administrator determines that the
deviation is no longer necessary or in
the interest of safety.
(3) An applicant must submit a
request for deviation authority in a form
and manner acceptable to the
Administrator at least 60 days before the
date of intended operations. A request
for deviation authority must contain a
complete description of the proposed
operation which establishes a level of
safety equivalent to that provided under
the regulations for the deviation
requested, including:
(i) A letter identifying the name and
address of the applicant;
(ii) The name and contact information
of the individual with ultimate
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41221
responsibility for operations authorized
under the deviation authority;
(iii) Specific aircraft make(s),
model(s), registration number(s), and
serial numbers to be used;
(iv) Copies of each aircraft’s
airworthiness certificate, including the
FAA-issued operating limitations, if
applicable;
(v) Ejection seat information, if
applicable;
(vi) An exemption issued under part
11, if applicable;
(vii) A detailed training program that
demonstrates the proposed activities
will meet the intended training
objectives;
(viii) A description of the applicant’s
process to determine whether a trainee
has a specific need for formation or
aerobatic training, or training leading to
the issuance of an endorsement, if those
types of training are being requested;
and
(ix) Any other information that the
Administrator deems necessary to
evaluate the application.
(4) The Administrator may prescribe
additional limitations in a letter of
deviation authority that the
Administrator considers necessary for
safety. The holder of a letter of deviation
authority must comply with any
limitations and conditions mandated in
the deviation authority.
(5) No person other than the
authorized flight instructor, designated
examiner, person receiving flight
training or being checked or tested, or
persons essential for the safe operation
of the aircraft may be on board during
operations conducted under the
deviation authority.
(6) The Administrator may limit the
types of training, testing, and checking
authorized under this deviation
authority. Training, testing, and
checking under this deviation authority
must be conducted consistent with the
training program submitted for FAA
review.
(c) For deviation authority issued
under § 91.319 of this part prior to
[EFFECTIVE DATE OF FINAL RULE],
the following requirements apply—
(1) The deviation holder may
continue to operate under the letter of
deviation authority until [DATE 24
MONTHS AFTER EFFECTIVE DATE OF
FINAL RULE];
(2) The deviation holder must
continue to comply with the conditions
and limitations in the letter of deviation
authority when conducting an operation
under the letter of deviation authority in
accordance with § 91.326(c)(1);
(3) The letter of deviation authority
may be cancelled or amended at any
time; and
E:\FR\FM\23JNP2.SGM
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41222
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 / Proposed Rules
(4) The letter of deviation authority
terminates on [DATE 24 MONTHS
AFTER THE EFFECTIVE DATE OF THE
FINAL RULE].
■ 13. Amend § 91.327 by revising
paragraph (a)(2) to read as follows:
§ 91.327 Aircraft having a special
airworthiness certificate in the light-sport
category: Operating limitations.
(a) * * *
(2) To conduct flight training,
checking, and testing.
*
*
*
*
*
Issued under authority provided by 49
U.S.C. 106(f), 44701–44703, sec. 517 of
Public Law 115–254, and Sec. 5604 of Public
Law 117–263 in Washington, DC.
Wesley L. Mooty,
Acting Deputy Executive Director, Flight
Standards Service.
[FR Doc. 2023–12600 Filed 6–22–23; 8:45 am]
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]]>Agencies
[Federal Register Volume 88, Number 120 (Friday, June 23, 2023)]
[Proposed Rules]
[Pages 41194-41222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12600]
[[Page 41193]]
Vol. 88
Friday,
No. 120
June 23, 2023
Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 61 and 91
Public Aircraft Logging of Flight Time, Training in Certain Aircraft
Holding Special Airworthiness Certificates, and Flight Instructor
Privileges; Proposed Rule
Federal Register / Vol. 88, No. 120 / Friday, June 23, 2023 /
Proposed Rules
[[Page 41194]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61 and 91
[Docket No. FAA-1351; Notice No. 23-09]
RIN 2120-AL61
Public Aircraft Logging of Flight Time, Training in Certain
Aircraft Holding Special Airworthiness Certificates, and Flight
Instructor Privileges
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: As directed by the FAA Reauthorization Act of 2018, the FAA
proposes to allow pilots conducting public aircraft operations (PAO) to
credit their flight time towards FAA civil regulatory requirements.
Additionally, consistent with the James M. Inhofe National Defense
Authorization Act for 2023 (2023 NDAA), the FAA proposes to amend the
operating rules for experimental aircraft to permit certain flight
training, testing, and checking in these aircraft without a letter of
deviation authority (LODA). The FAA proposes to extend the same relief
to certain flight training, testing, and checking in limited category,
primary category, and experimental light sport aircraft. The FAA also
proposes miscellaneous amendments related to recent flight experience,
flight instructor privileges, flight training in certain aircraft
holding special airworthiness certificates, and the related
prohibitions on conducting these activities for compensation or hire.
These proposed changes will clarify existing regulatory requirements,
align the regulations with current industry practice, and ensure
compliance with the FAA Reauthorization Act of 2018 and the 2023 NDAA.
DATES: Send comments on or before August 22, 2023.
ADDRESSES: Send comments identified by docket number FAA-2023-1351
using any of the following methods:
Federal eRulemaking Portal: Go to www.regulations.gov and
follow the online instructions for sending your comments
electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at (202) 493-2251.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
Docket: Background documents or comments received may be read at
www.regulations.gov at any time. Follow the online instructions for
accessing the docket or go to the Docket Operations in Room W12-140 of
the West Building Ground Floor at 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Jabari Raphael, General Aviation and
Commercial Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591; (202)
267-1088; email [email protected].
SUPPLEMENTARY INFORMATION:
List of Abbreviations and Acronyms Frequently Used in This Document
ATC Air Traffic Control
ELSA Experimental Light-Sport Aircraft
ICAO International Civil Aviation Organization
IFR Instrument Flight Rules
LODA Letter of Deviation Authority
NAS National Airspace System
NPRM Notice of Proposed Rulemaking
NTSB National Transportation Safety Board
PAO Public Aircraft Operation
PIC Pilot-in-command
SIC Second-in-command
SLSA Special Light-Sport Aircraft
VFR Visual Flight Rules
Table of Contents
I. Executive Summary
II. Authority for the Rulemaking
III. Logging Flight Time, Recent Flight Experience, and Flight
Instructor Privileges
A. Logging Flight Time in Public Aircraft Operations (Sec.
61.51)
B. Recent Flight Experience (Sec. 61.57)
C. Flight Instructor Privileges (Sec. Sec. 61.193 and 61.413)
IV. Aircraft Holding Certain Special Airworthiness Certificates
A. Background: Emergency Cease and Desist Order, Litigation, and
FAA Notice
B. Part 91 Regulations Governing the Operation of Aircraft With
Certain Airworthiness Certificates (Sec. Sec. 91.315, 91.319,
91.325, and 91.327)
C. Flight Training, Checking, and Testing (Sec. 91.326(a))
D. LODA Framework (Sec. 91.326(b) and (c))
V. Regulatory Notices and Analyses
A. Regulatory Evaluation
B. Regulatory Flexibility Determination
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
C. Executive Order 13609, International Cooperation
VII. Additional Information
A. Comments Invited
B. Confidential Business Information
C. Electronic Access and Filing
I. Executive Summary
As directed by section 517 of the FAA Reauthorization Act of 2018
(Pub. L. 115-254), the FAA proposes to allow pilots conducting public
aircraft operations (PAO) under Title 49 of the United States Code
(U.S.C.) 40102(a)(41) and 40125 to credit their flight time towards FAA
civil regulatory requirements. While section 517 requires the FAA to
issue regulations to allow the logging of flight time in aircraft used
in PAO under direct operational control of forestry and fire protection
agencies, the FAA proposes to more broadly consider all PAO for flight
time. Moreover, the FAA proposes to expand the regulatory framework to
allow pilots serving in PAO as second in command to log flight time,
under certain circumstances. Enabling pilots to log SIC time while
operating a PAO encourages the use of a second pilot where one may not
be required and increases overall safety in the NAS.
The FAA also proposes to clarify recent flight experience
requirements and the authorized flight training activities under part
61. The FAA proposes to add Sec. 61.57(e)(5) to codify an exception
that, in certain circumstances, would enable a person receiving flight
training to act as PIC, even if that person does not meet the recent
flight experience requirements for carrying passengers under Sec.
61.57(a) or (b). Additionally, the FAA proposes to add ``maintaining or
improving skills for certificated pilots'' to the list of flight
instructor privileges found in Sec. Sec. 61.193(a)(7) and 61.413(a)(6)
to clarify that flight instructors are authorized to conduct certain
specialized and elective training.
The proposed rule would also amend part 91 operating rules to
clarify
[[Page 41195]]
prohibited operations and create limited exceptions to the general
prohibition on carriage of persons for compensation or hire for flight
training, testing, and checking in aircraft holding certain special
airworthiness certificates. Currently, part 91 regulations broadly
prohibit a person from operating certain aircraft with special
airworthiness certificates (i.e., limited category, experimental, or
primary category aircraft) \1\ carrying persons and property for
compensation or hire. These part 91 regulations use broad terms that
the FAA has defined either in regulation (i.e., operate, person) or
through interpretation and guidance (i.e., compensation). The broad
language in these regulations was the subject of recent litigation \2\
that identified a discrepancy between the plain language of the
regulation and the FAA's longstanding application of the regulation to
certain flight training activity. Therefore, the FAA initiated this
rulemaking to remove the requirement for owners (and certain persons
affiliated with owners) to obtain a LODA to accomplish flight training
in their aircraft and to clarify the general prohibition on operating
aircraft with certain special airworthiness certificates while carrying
persons or property for compensation or hire.
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\1\ Section 21.175(b) identifies special airworthiness
certificates as primary, restricted, limited, light-sport, and
provisional airworthiness certificates, special flight permits, and
experimental certificates.
\2\ Warbird Adventures, Inc. v. Fed. Aviation Admin., Petition
for Review from an Emergency Cease and Desist Order Issued by the
Federal Aviation Administration on July 28, 2020, Doc. No. 1854466
(D.C. Cir. 2020).
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During the development of this NPRM, President Joseph R. Biden, Jr.
signed into law the James M. Inhofe National Defense Authorization Act
for 2023 (2023 NDAA), which included a self-implementing provision that
amended the operating rules to permit certain flight training, testing,
and checking in experimental aircraft without a letter of deviation
authority (LODA). The FAA proposes to extend the same relief to certain
flight training, testing, and checking in limited category, primary
category, and experimental light sport aircraft. The FAA anticipates
that the proposed changes will provide greater access to specialized
training in aircraft with special airworthiness certificates.
The FAA analyzed the costs and benefits for the provisions related
to PAO and the provisions related to training, testing, and checking in
certain aircraft with special airworthiness certificates separately.
The provisions related to PAO impose no new costs and the FAA expects
the proposal will reduce the costs for pilots conducting PAO to
maintain their civil certificates and ratings.\3\ The provisions
related to training, testing and checking impose approximately $100,000
in total one-time costs (undiscounted) over a period of two years.
These costs stem from the requirement for current LODA holders who
broadly offer certain aircraft with special airworthiness certificates
for training to reapply within two years of the effective date.
However, the FAA expects the cost savings from the elimination of LODA
requirements for pilots receiving training in their own aircraft, the
streamlined regulatory framework, and the safety benefits from greater
access to specialized training in aircraft with special airworthiness
certificates to exceed the initial costs. Overall, the FAA concluded
that this proposal would enhance safety with minimal impact on cost.
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\3\ The FAA does not maintain counts of pilots who fly PAO for
federal, state, and local governments and there is insufficient data
for the FAA to estimate the number of pilots affected by this
proposal. See ``How to Become a Government Pilot'' in Flying
Magazine by James Wynbrandt, Dec. 13, 2017. Available at: https://www.flyingmag.com/how-to-become-government-pilot/ Last accessed Jul.
22, 2022.
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II. Authority for the Rulemaking
The FAA's authority to issue rules on aviation safety is specified
in Title 49 of the United States Code. Subtitle I, Section 106
prescribes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes the scope of the FAA's authority in more
detail.
The FAA is proposing this rulemaking under the authority described
in Subtitle VII, Part A, Subpart iii, section 44701, General
Requirements; section 44702, Issuance of Certificates; and section
44703, Airman Certificates. Under these sections, the FAA prescribes
regulations and minimum standards for practices, methods, and
procedures the Administrator finds necessary for safety in air
commerce. The FAA is also authorized to issue certificates, including
airman certificates, and medical certificates, to qualified
individuals. This rulemaking proposal is within the scope of that
authority.
Furthermore, section 517 of Public Law 115-254, Public Aircraft
Eligible for Logging Flight Times, directs the Administrator to revise
14 CFR 61.51(j)(4) to include aircraft under direct operational control
of forestry and fire protection agencies as public aircraft eligible
for logging flight times. The FAA also proposes to codify section 5604
of the 2023 NDAA, which directs that under certain conditions, flight
training, testing, and checking in experimental aircraft does not
require a LODA from the FAA.
III. Logging Flight Time, Recent Flight Experience, and Flight
Instructor Privileges
In 14 CFR part 61, the FAA proposes to modify Sec. Sec. 61.51,
61.57, 61.193, and 61.413. First, the FAA proposes to modify Sec.
61.51 to expand PAO under which a pilot may credit flight time towards
FAA civil regulatory requirements. Second, the FAA proposes to modify
Sec. 61.57(e) to include an exception to the recent flight experience
requirements for flight instructors and certificated pilots while
conducting flight training for the purpose of meeting recent flight
experience requirements. Third, the FAA proposes to modify Sec. Sec.
61.193 and 61.413 to clarify the privileges an authorized flight
instructor may exercise within the limits of their certificate.
A. Logging Flight Time in Public Aircraft Operations (Sec. 61.51)
1. Aircraft Requirements for Logging Flight Time
As specified in 14 CFR part 61, pilots must document and record
certain aeronautical experience.\4\ Section 61.51 provides the
requirements for logging aeronautical experience for airman
certificates, ratings, privileges, and flight experience. In
particular, Sec. 61.51(j) specifies the aircraft requirements for
logging flight time. Section 61.51(j) states that, for time to be
logged, it must be acquired in an aircraft that is identified as an
aircraft under Sec. 61.5(b) \5\ and is (1) an aircraft of U.S.
registry with either a standard or special airworthiness certificate,
(2) an aircraft of foreign registry with an airworthiness certificate
that is approved by the aviation authority of a foreign country that is
a Member State to the Convention on International Civil Aviation
Organization (ICAO), (3) a military aircraft under the direct
operational control of the U.S. Armed Forces, or (4) an aircraft
engaged in a public aircraft operation (PAO) while engaged on an
official law enforcement
[[Page 41196]]
flight for a Federal, State, county, or municipal law enforcement
agency.
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\4\ Section 61.51(a) specifies that certain training time and
aeronautical experience must be documented and recorded in a ``form
and manner acceptable to the Administrator.'' Often, this is
accomplished through maintaining a logbook.
\5\ Section 61.5(b) lists the aircraft ratings that are placed
on pilot certificates issued under part 61. The ratings include
category ratings (e.g., airplane, rotorcraft) and class ratings
(e.g., multiengine land, helicopter).
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The FAA added Sec. 61.51(j) in 2009, after Congress passed Public
Law 106-424.\6\ Section 14 of Public Law 106-424 specified that an
aircraft must hold an airworthiness certificate, with some exceptions,
for a pilot to log flight time to meet the certificate, rating, or
recent flight experience requirements under part 61.\7\ Before
promulgation of Sec. 61.51(j), the FAA did not expressly prescribe in
regulation aircraft or airworthiness requirements for when a pilot may
log flight time.\8\ In earlier versions of the regulation, the type of
aircraft that could be flown to log flight time was not specified.
Rather, FAA guidance to inspectors stated that, ``[u]nless the vehicle
is [type certificated] as an aircraft in a category listed in Sec.
61.5(b)(1) or as an experimental aircraft, or otherwise holds an
Airworthiness Certificate, flight time acquired in such a vehicle may
not be used to meet requirements of part 61 for a certificate or rating
or to meet the recency-of-experience requirements.'' \9\
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\6\ Public Law 106-424, section 14, Crediting of Law Enforcement
Flight Time (Nov. 1, 2000). In determining whether an individual
meets the aeronautical experience requirements imposed under section
44703 of Title 49, United States Code, for an airman certificate or
rating, the Secretary of Transportation shall take into account any
time spent by that individual operating a public aircraft as defined
in section 40102 of Title 49, United States Code, if that aircraft
is--(1) identifiable by category and class; and (2) used in law
enforcement activities.
\7\ Pilot, Flight Instructor, and Pilot School Certification, 74
FR 42499 (Aug. 21, 2009).
\8\ Pilot, Flight Instructor, and Pilot School Certification, 74
FR 42499, 42515 (Aug. 21, 2009).
\9\ FAA Order 8900.1, Volume 5, Chapter 2, Section 5, Paragraph
5-316B.
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Given the specific mandate from Congress, in Sec. 61.51(j), the
FAA codified its existing guidance, added a provision for logging time
in military aircraft, and as directed by the legislation, included
Sec. 61.51(j)(4) to permit individuals to log flight time in aircraft
used in PAO for official law enforcement activities.
The current language of Sec. 61.51(j)(4) applies only to law
enforcement pilots and does not permit other pilots who conduct PAO to
credit flight time toward FAA requirements if the aircraft does not
also meet another provision under Sec. 61.51(j). Section 517 of the
FAA Reauthorization Act of 2018, Public Law 115-254 (section 517)
directs the FAA to expand PAO logging opportunities by permitting
pilots to log flight time in aircraft under the direct operational
control of forestry and fire protection agencies when conducted as PAO.
Notwithstanding the limited scope of section 517, the FAA is proposing
to amend Sec. 61.51(j)(4) to allow logging of flight time for pilots
engaged in any PAO in accordance with 49 U.S.C. 40102(a)(41) and
40125(a)(2). This proposal would expand Sec. 61.51(j)(4) not only to
law enforcement and forestry and fire protection services as directed
by Congress, but to any PAO including, but not limited to, those
involving national defense, intelligence missions, search and rescue,
aeronautical research, and biological or geological resource
management.
This proposal would also broaden the scope of aircraft requirements
in Sec. 61.51(j) for logging flight time. The FAA recognizes that the
2009 rule change, which codified these requirements in response to
section 14, prohibited individuals conducting PAO, with the exception
of law enforcement personnel, from logging flight time unless the
aircraft could meet another provision under Sec. 61.51(j). The FAA now
proposes to eliminate this distinction between law enforcement
personnel and all other individuals engaged in PAO by allowing logging
of flight time for PAO conducted in aircraft other than those listed in
Sec. 61.51(j)(1) through (3).
The FAA finds that amending the regulatory language to include all
aircraft engaged in PAO would not adversely affect safety. PAO already
occur within the national airspace system (NAS), and the FAA is now
proposing to allow pilots to credit these operations towards certain
civil regulatory requirements under part 61 like total flight time and
recent flight experience.
Flight experience gained during PAO is relevant to a pilot's
qualifications and currency under FAA regulations. Whether a pilot is
engaged in civil or public aircraft operations, the pilot must follow
flight rules in part 91. The pilots engaged in PAO interact with air
traffic control (ATC) and aircraft in the NAS the same as those engaged
in civil aircraft operations. In addition, pilots conducting PAO abide
by the same rules governing airspace classifications, right-of-way,
aircraft speed, and airspace restrictions. Pilots conducting PAO also
must act consistently with FAA weather minima, minimum altitude
requirements, instrument approach procedures, and other operating rules
applicable to certain persons and aircraft. Pilots conducting PAO also
employ many of the same aeronautical skills and accomplish the same
flight time as their counterparts performing civil operations,
including takeoffs and landings, visual and instrument procedures, risk
management, and enroute operations.
The FAA understands that pilots engaged in PAO may have been
memorializing their flight time in accordance with the requirements of
the government entities under which they operate, even though the FAA
does not currently recognize this time under Sec. 61.51 to satisfy
civil regulatory requirements. Those pilots who have not documented
this time may begin recording their PAO flight time in accordance with
this proposed rule in the event that this proposed rule becomes final.
In this regard, the proposed modification would permit PAO pilots to
credit their recorded flight time towards satisfying FAA requirements
retroactively. Any prior PAO aeronautical experience logged by a pilot
must meet the requirements in Sec. 61.51.
Although a pilot's total time may be used to meet certain flight
time requirements for certificates, ratings, or recent flight
experience, like that required for Sec. 61.57, the FAA notes that
flight time in PAO may not satisfy all part 61 requirements, such as a
flight review, a pilot-in-command (PIC) proficiency check, or practical
test. However, the recorded time may not be creditable toward any pilot
qualification or requirement if the rule does not become final.
Finally, the FAA notes that, a pilot logging flight time is
responsible for knowing whether they are engaging in operations that
are PAO or civil operations.
2. Second-in-Command Flight Time in Aircraft Engaged in Public Aircraft
Operations
The current second-in-command (SIC) logging regulations do not
adequately address aircraft used in PAO that do not also hold
airworthiness certificates issued by the FAA. For example, the SIC
logging requirements in Sec. 61.51(f) permit a person to log time as
SIC based on the number of pilots required by the type certification of
the aircraft or the regulations under which the flight is conducted. In
addition, since 2018, part 135 SICs who are not required by the type
certification of the aircraft or the part 135 operating rules also may
log SIC flight time under Sec. 61.51(f)(3) as part of an approved SIC
professional development program (SIC PDP) consistent with the
requirements in Sec. 135.99(c).\10\ For aircraft exclusively used in
PAO that do not hold airworthiness certificates, there may be no type
certificate designating that two pilots are required. In addition, PAO
are not subject to FAA regulations on SIC
[[Page 41197]]
requirements (e.g., Sec. 91.531). As such, under Sec. 61.51(f), an
assigned second pilot in a PAO does not meet the requirements to log
SIC time.
---------------------------------------------------------------------------
\10\ 83 FR 30232 (Jun. 27, 2018).
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While section 517 is silent as to how pilot time may be logged,
whether as PIC or SIC, the FAA now proposes to clarify the pilot time
that may be logged to meet FAA requirements in response to questions
from the regulated community. Pilots conducting qualified PAO are not
required to meet FAA pilot certification requirements. Instead, the
government entity may develop its own pilot qualification requirements
for these operations. Therefore, the FAA proposes to explicitly allow
the logging of SIC time during PAO, with certain limitations, to
encourage safety and promote consistency with the regulated community.
To determine the appropriate scope of the proposal regarding SIC
logging during PAO, the FAA considered the requirements set forth in
Sec. 91.531 and 14 CFR part 135. For operations under part 91, Sec.
61.51(f) allows a pilot to log SIC time in those airplanes when
operating in accordance with Sec. 91.531(a). Section 91.531 specifies
requirements to operate with an SIC in certain airplanes, such as those
type certificated for more than one required pilot, large airplanes,
and commuter category airplanes. Likewise, for a part 135 pilot to log
SIC time under Sec. 61.51(f), a second pilot must either be required
by the aircraft type certificate, operating rule, or as prescribed in
Sec. 135.99.\11\ These operating rules under which a pilot may log SIC
time are established based on complexity of the operation. Examples of
aircraft that may require additional flightcrew members include large
aircraft or turbojet-powered airplanes, or complex operations such as
part 135 passenger carriage under instrument flight rules. Often, large
aircraft \12\ and turbojet-powered airplanes have a requirement for a
second pilot listed in the limitations section of the flight manual or
on the type certificate data sheet, if applicable. Section 91.9
requires that a person must operate a civil aircraft in accordance with
the aircraft flight manual.
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\11\ Section 135.99(a) provides that no certificate holder may
operate an aircraft with less than the minimum flight crew specified
in the aircraft operating limitations or the Aircraft Flight Manual
for that aircraft. Paragraph (b) states that no certificate holder
may operate an aircraft without a second in command if that aircraft
has a passenger seating configuration, excluding any pilot seat, of
ten seats or more. Paragraph (c) establishes the SIC PDP, which
permits a pilot employed by the certificate holder to log SIC flight
time under certain conditions for operations conducted under parts
91 and 135.
\12\ See 14 CFR 1.1 defining ``large aircraft'' as ``aircraft of
more than 12,500 pounds, maximum certificated takeoff weight.''
---------------------------------------------------------------------------
Since aircraft used in PAO might not hold an airworthiness
certificate, there may be no associated aircraft flight manual or type
certificate. Additionally, the FAA regulations governing crew
complement discussed earlier do not apply to PAO. Finally, because a
PAO is not a part 135 operation, the part 135 operating rules (i.e.,
Sec. 135.99(c)) that allow for logging SIC time are unavailable to PAO
pilots.
As previously discussed, certain aircraft used in civil operations
require a second pilot for safety due to design complexity or
operational requirement. Enabling pilots to log SIC time while
operating a PAO encourages the use of a second pilot where one may not
be required and increases overall safety in the NAS. In addition, the
presence of a second pilot onboard the aircraft provides additional
resources to reduce PIC workload during critical phases of flight,
monitor for emergency circumstances, survey weather conditions, and
ensure safe operations. Thus, the FAA seeks to encourage the presence
of a second pilot in aircraft that would otherwise require a second
pilot under civil operations.
Consistent with the foregoing discussion, the FAA proposes to
enable logging of SIC time to meet FAA requirements in large aircraft
and turbojet powered airplanes. Likewise, the FAA proposes that, if an
aircraft holds or held a type certificate that requires a second pilot,
PAO pilots may also log SIC time. This proposal is similar to the
regulatory framework under which pilots serving in civil operations may
log flight time \13\ and, therefore, would allow PAO pilots to credit
their flight time towards FAA requirements in a similar manner to
pilots conducting civil operations. The proposal would permit PAO
pilots to credit their recorded flight time towards satisfying FAA
requirements retroactively.
---------------------------------------------------------------------------
\13\ See 14 CFR 91.531, 135.99(a).
---------------------------------------------------------------------------
Additionally, although PAO are conducted outside of FAA aircraft
and airmen certification requirements and certain safety oversight
regulations, each government entity is responsible for its own pilot
qualifications. For many government entities, this includes adopting
the same standards as those codified in 14 CFR to ensure pilot and
public safety. Logging flight time in PAO also provides a record of the
pilot's experience. By allowing pilots to credit their time conducting
PAO, the proposed rule would enable the FAA to review the totality of
an individual pilot's flight experience to satisfy civil requirements.
Likewise, enabling this time to be credited toward civil requirements
will create efficiency for affected pilots by removing the need for
duplicative flight time to be accomplished. In turn, the FAA could more
effectively ensure and oversee safety in the NAS. Accordingly, the FAA
proposes to add Sec. 61.51(f)(4) to clarify that a person designated
as SIC by a government entity may log SIC time if the aircraft used was
a large aircraft as defined in Sec. 1.1, a turbo-jet powered airplane,
or if the aircraft holds or originally held a type certificate that
requires a second pilot.
The FAA reviewed the minimum aeronautical experience requirements
for certification and ratings and found that the proposed SIC logging
time should be limited to pilots seeking an airplane transport pilot
(ATP) certificate. The FAA continues to find that ATP hours are largely
related to building time and experience whereas flight time necessary
to meet minimum aeronautical experience requirements for private pilot,
commercial, and instrument rating is more directly related to building
specific skillsets. Moreover, the required training and aeronautical
experience pilots accumulate in order to obtain these certifications
and ratings are fundamental building blocks necessary for the
development of proper aeronautical decision-making and skills.
In this regard, the FAA does not believe that pilots utilizing
proposed Sec. 61.51(f)(4) for building time towards meeting the
aeronautical experience requirements for a private pilot certificate,
commercial certificate, and instrument rating would be in the interest
of safety. This distinction is supported by the fact that the
aeronautical experience requirements for the ATP certificate explicitly
enable crediting of SIC time, whereas the aeronautical experience
requirements for the private and commercial certificates and instrument
rating do not explicitly reference SIC flight time. Therefore, the FAA
proposes adding Sec. 61.51(f)(4)(i) to explicitly state that SIC time
logged under paragraph (f)(4) may not be used to meet the aeronautical
experience requirements for the private or commercial pilot
certificates or an instrument rating.
The FAA notes that ICAO standards do not recognize the crediting of
flight time when a pilot is not required by the aircraft certification
or the operating rules under which the flight is being conducted.
Accordingly, all pilots who log flight time under this provision and
apply for an ATP certificate would have
[[Page 41198]]
a limitation on the certificate indicating that the pilot does not meet
the PIC aeronautical experience requirements of ICAO. For this reason,
the FAA proposes to add Sec. 61.51(f)(4)(ii) to clearly delineate that
an applicant for an ATP certificate who logs SIC time under Sec.
61.51(f)(4) is issued an ATP certificate with the limitation, ``Holder
does not meet the pilot in command aeronautical experience requirements
of ICAO,'' as prescribed under Article 39 of the Convention on
International Civil Aviation if the applicant does not meet the ICAO
requirements contained in Annex 1 ``Personnel Licensing'' to the
Convention on International Civil Aviation. The FAA notes that an
applicant is entitled to an ATP certificate without the ICAO limitation
specified under this provision when the applicant presents satisfactory
evidence of having met the ICAO requirements and otherwise meets the
aeronautical experience requirements of Sec. 61.159.\14\
---------------------------------------------------------------------------
\14\ Section 61.159 specifies the aeronautical experience
requirement for obtaining an ATP certificate with an airplane
category and class rating.
---------------------------------------------------------------------------
Additionally, to streamline the proposed revisions to Sec.
61.51(f) with other pilots who apply for an ATP certificate with an
ICAO limitation, the FAA proposes to amend Sec. Sec. 61.159(e) \15\
and 61.161(d) \16\ to reference Sec. 61.51(f)(4). This proposed
revision to the aeronautical experience requirements of Sec. Sec.
61.159 and 61.161 would allow a pilot to credit SIC time logged under
PAO toward the total time for an ATP certificate.
---------------------------------------------------------------------------
\15\ Section 61.159(e) specifics the activities that
necessitates the limitation ``Holder does not meet the pilot in
command aeronautical experience requirements of ICAO'' on an ATP
certificate with an airplane category and class rating.
\16\ Section 61.161(d) specifics the activities that
necessitates the limitation ``Holder does not meet the pilot in
command aeronautical experience requirements of ICAO'' on an ATP
certificate with a rotorcraft category and helicopter class rating.
---------------------------------------------------------------------------
B. Recent Flight Experience (Sec. 61.57)
Section 61.57 contains recent flight experience requirements to
maintain privileges to act as PIC under certain scenarios, including
requirements to complete takeoffs and landings in order continue to act
as PIC of a flight that is carrying passengers.\17\ The FAA proposes to
add Sec. 61.57(e)(5) to codify an exception that, in certain
circumstances, would enable a person receiving flight training to act
as PIC, even if that person does not meet the recent flight experience
requirements for carrying passengers under Sec. 61.57(a) or (b).
Specifically, the FAA proposes that an otherwise qualified pilot could
act as PIC while receiving flight training given by an authorized
flight instructor only for the purpose of meeting recent flight
experience requirements, even if that person does not meet the
requirements of Sec. 61.57(a) or (b). This person must meet all other
requirements to act as PIC, except for the recent flight experience
requirements of Sec. 61.57(a) or (b), and the authorized instructor
and person receiving training must be the sole occupants of the
aircraft.
---------------------------------------------------------------------------
\17\ Section 61.57(a)(1) states that no person may act as PIC of
an aircraft carrying passengers or of an aircraft certificated for
more than one pilot flightcrew member unless that person has made at
least three takeoffs and three landings within the preceding 90
days. Moreover, Sec. 61.57(b)(1) specifies that no person may act
as PIC of an aircraft carrying passengers during the period
beginning one hour after sunset and ending one hour before sunrise,
unless within the preceding 90 days, that person has made at least
three takeoffs and three landings to a full stop during the period
beginning one hour after sunset and ending one hour before sunrise.
---------------------------------------------------------------------------
The FAA has published numerous legal interpretations indicating the
aforementioned operations are already permissible under existing
regulations, notwithstanding the prohibition on passenger-carrying
flights; however, upon reconsideration, the FAA has determined the
plain text of the regulations does not support the conclusions in these
interpretations. For example, in the FAA Legal Interpretation to Kris
Kortokrax, Mr. Kortokrax suggested that a flight instructor who has not
met the recent night takeoff and landing experience in Sec. 61.57(b)
should be able to accompany a pilot without being considered a
passenger.\18\ At that time, the FAA agreed and stated this training
may take place even though neither pilot has met the Sec. 61.57(b)
requirement. Similarly, in the FAA Legal Interpretation to Roger
Schaffner, Mr. Schaffner asked whether a flight instructor with an
expired medical could provide flight training to a certificated pilot,
even though the person receiving instruction did not comply with the
recent flight experience requirement of Sec. 61.57.\19\ The FAA
asserted that the person receiving the instruction could act as the PIC
if that person met all other requirements to act as PIC, other than the
recent flight experience requirements of Sec. 61.57(a) or (b).
---------------------------------------------------------------------------
\18\ The FAA addressed Mr. Kortokrax's concerns regarding night
takeoff and landing experience for a PIC. The scenario included a
pilot, who meets the rating and currency requirements except for
Sec. 61.57(b), seeking to have an authorized instructor in the
aircraft when the pilot attempts to meet the requirements of Sec.
61.57(b). Legal Interpretation to Kris Kortokrax (Aug. 22, 2006).
\19\ Legal Interpretation to Roger Schaffner (May 5, 2014).
---------------------------------------------------------------------------
The FAA legal interpretations were based on the unsupported
conclusion that a flight instructor and a person receiving flight
training are not considered passengers to one another. In the FAA Legal
Interpretation to Kris Kortokrax, the FAA stated that an authorized
instructor providing flight training in an aircraft is not considered a
passenger with respect to the person receiving training, even where the
person receiving the flight training is acting as PIC. This conclusion
was based on the premise that the instructor is not a passenger because
the instructor is present specifically to train the person receiving
flight training, and the person receiving flight training is similarly
not a passenger with respect to the instructor. Likewise, the FAA Legal
Interpretation to Roger Schaffner stated that a flight instructor with
an expired medical certificate may instruct a person who is a private
pilot with a current medical certificate and flight review, even if
that person is not current to carry passengers per Sec. 61.57(a)
because the instructor is not considered a passenger when the
instructor is present specifically to train the person receiving
instruction.\20\ Although the FAA makes the regulatory distinction in
Sec. 61.47(c) that during a practical test, the applicant and the (14
CFR part 183) examiner are not subject to the requirements or
limitations for the carriage of passengers, the rule does not assert
that the persons are not passengers to one another. Instead, it
specifies that those persons are not subject to the limitations related
to carriage of passengers. No such regulatory provision exists to make
the same assertion regarding flight instructors and persons receiving
flight training. Therefore, the aforementioned legal interpretations
had no regulatory basis to assert that flight instructors and flight
students were not considered passengers to one another. This proposed
rule seeks to remedy the disparity between the aforementioned legal
interpretations and current regulations by creating an exception to
Sec. 61.57(a) and (b) to enable the activities enumerated in the legal
interpretations. Importantly, the proposed rule will not change the
relationship between instructors and persons receiving flight training.
The proposed rule does not assert that these persons are not passengers
to one another. Instead, the proposal clarifies when these operations
can be accomplished. Specifically, the FAA is proposing to codify the
privileges described in the Kortokrax and Schaffner interpretations.
Under the proposed rule, and consistent with the aforementioned legal
interpretations,
[[Page 41199]]
the FAA contemplates a scenario whereby neither the flight instructor
nor the person receiving instruction has met the recent flight
experience requirements of Sec. 61.57(a) or (b). In this scenario, the
person receiving instruction, if otherwise qualified, \21\ would be
permitted to act as the PIC and would not be subject to the
requirements of Sec. 61.57(a) or (b) to act as PIC.
---------------------------------------------------------------------------
\20\ Legal Interpretation to Roger Schaffner (May 5, 2014).
\21\ A flight instructor may not be able to act as PIC for other
reasons including a lack of medical qualification. Under Sec. Sec.
61.3(c)(2)(viii) and 61.23(b)(5), a flight instructor does not need
to hold a medical certificate while exercising the privileges of
flight instructor certificate if the flight instructor is not acting
as a required flightcrew member. To act as PIC or as a required
flight crewmember, under Sec. 61.23(a)(3)(ii) and 61.23(c)(1)(vi),
when exercising the privileges of a flight instructor certificate, a
flight instructor must possess at least a third-class medical
certificate, or a U.S. driver's license if the flight is conducted
under the conditions and limitations set forth in Sec. 61.113(i).
---------------------------------------------------------------------------
To ensure safety, the FAA proposes to limit the types of operations
and persons who may be on board. The proposed exception is limited to
flight training to meet the recent flight experience requirement of
Sec. 61.57 (a) or (b), and no other persons may be on board the
aircraft. Additional aircraft occupants could cause distractions, would
not necessarily possess the knowledge and skills to operate the
aircraft, and would not be in a position to act in the event of a
problem; therefore, any additional persons would not enhance safety.
The FAA finds having a flight instructor on board promotes safety
because a flight instructor is trained to monitor for pilot errors and
can provide input on technique and best practices during critical
phases of flight. The FAA continues to find, regardless of whether the
flight instructor can act as PIC, the flight instructor's experience,
knowledge, and risk management skills are valuable to the person
receiving instruction and increase safety, both while in flight and for
the public. In support of this proposal, the FAA emphasizes its
longstanding recognition that flight training is a valuable activity
and having a flight instructor onboard effectuates the FAA's goal of
promoting safety especially in a scenario where a pilot is
reestablishing privileges. Likewise, safety is enhanced because two
pilots, one of whom is an authorized instructor, who are otherwise
qualified to operate the aircraft are onboard and are available to act
in the event of a problem. In accordance with Sec. 61.23(a)(3)(ii),
(b)(5), and (c)(1)(vi), a flight instructor who does not meet medical
or driver's license requirements, as applicable, cannot act as PIC. In
all cases, the person acting as PIC must meet all applicable medical or
driver's license requirements to act as PIC.\22\ The proposed rule does
not change these requirements to act as PIC.
---------------------------------------------------------------------------
\22\ Section 61.23(a)(3)(ii) requires that a person must hold at
least a third-class medical certificate when exercising the
privileges of a flight instructor and acting as PIC or as a required
flight crewmember. Section 61.23(b)(5) states that a person is not
required to hold a medical certificate when exercising the
privileges of a flight instructor certificate if the person is not
acting as PIC or serving as a required flight crewmember. Section
61.23(c)(1)(vi) requires a person hold either a medical certificate
issued under part 67 or a U.S. driver's license when exercising the
privileges of a flight instructor certificate and acting as PIC or
as a required flight crewmember if the flight is conducted under the
conditions and limitations set forth in Sec. 61.113(i).
---------------------------------------------------------------------------
The FAA notes that the proposed rule would not codify the position
in certain legal interpretations that were an outgrowth of the
Kortokrax and Schaffner interpretations. In FAA Legal Interpretation to
John Olshock,\23\ the FAA concluded that it would be permissible for a
properly rated and current instructor (except for Sec. 61.57(b)), and
a student pilot (who is not yet rated in the aircraft but receiving
training) to be on board an airplane together during night hours
because neither was considered to be a passenger to the other. The
proposed rule would not codify the conclusion made in Olshock that a
flight instructor need not comply with Sec. 61.57(a) or (b) when
conducting flight training with someone receiving training who is not
qualified to act as PIC or a person holding only a student pilot
certificate. There is no adequate safety justification to continue to
enable this activity.
---------------------------------------------------------------------------
\23\ Legal Interpretation to John Olshock (May 4, 2007).
---------------------------------------------------------------------------
In the proposed rule, the safety justification is supported by the
fact that there are two certificated and otherwise qualified pilots who
could each provide knowledge and skills appropriate to the operation of
the aircraft. Not only is there a qualified flight instructor on board
with the additional training and aeronautical skills necessary to
become an authorized instructor, but the second pilot has also
demonstrated PIC proficiency in the aircraft to an FAA examiner. Each
of these pilots has the necessary skillset to operate the aircraft.
Similar to the legal interpretations related to Sec. 61.57
exceptions for flight instructors, the FAA published interpretations
that speak to the student/instructor relationship for the purpose of
enabling certain operations for flight instructors who do not hold an
FAA medical certificate.\24\ The FAA amended Sec. 61.23 in April 1997
to clarify when a flight instructor must hold a medical certificate or
driver's license, as applicable. Because Sec. 61.23 was already
amended and the proposed addition to Sec. 61.57(e) provides a
regulatory exception to Sec. 61.57(a) and (b) for persons receiving
flight training in certain circumstances, the FAA proposes to rescind
the Legal Interpretation to Kris Kortokrax, Legal Interpretation to
John Olshock, Legal Interpretation to Roger Schaffner, and Legal
Interpretation to E.V. Fretwell 30 days after the publication of this
NPRM. These legal interpretations are not supported by current FAA
regulations and with the publication of the proposed final rule, would
no longer be necessary to support the operations they intended to
clarify.
---------------------------------------------------------------------------
\24\ See Legal Interpretation to E.V. Fretwell (Sept. 18, 1995).
---------------------------------------------------------------------------
C. Flight Instructor Privileges (Sec. Sec. 61.193 and 61.413)
Sections 61.193 and 61.413 set forth the privileges of flight
instructors and sport pilot instructors, respectively. Under Sec. Sec.
61.193(a)(1) through (9) and 61.413(a)(1) through (9), an authorized
flight instructor may train and provide endorsements required for
certificates, ratings, operating privileges, recency of experience
requirements, and tests. The areas listed do not specifically address
elective and specialized training activities that the FAA encourages
but which are not required to meet FAA regulations. These activities
include, but are not limited to, transition training to a new make and
model for which a pilot is already rated but has never flown or lacks
familiarity, and conventional instrumentation to technically advanced
aircraft training.
The FAA proposes clarifying amendments to Sec. Sec. 61.193 and
61.413 to conform the regulations with current FAA policy and industry
practice. First, the FAA proposes to modify the introductory text of
Sec. Sec. 61.193(a) and 61.413(a) to clarify that, within the limits
of their certificates, authorized flight instructors may conduct ground
and flight training, and certain checking events, in addition to
issuing endorsements. Second, the FAA proposes to add ``maintaining or
improving skills for certificated pilots'' to Sec. Sec. 61.193(a)(7)
and 61.413(a)(6) to clarify that flight instructors are authorized to
conduct certain specialized and elective training. Third, the FAA
proposes to add Sec. Sec. 61.193(c) and 61.413(c) to clarify that the
privileges afforded to authorized flight instructors under these
provisions do not permit operations that would require an air carrier
or operating
[[Page 41200]]
certificate or specific authorization from the Administrator.
Under the current text of Sec. Sec. 61.193 and 61.413, an
authorized flight instructor may conduct training related only to
endorsing a person for certificates, ratings, operating privileges,
recency of experience requirements, and tests. First, this proposal
amends the introductory text in paragraphs of Sec. Sec. 61.193(a) and
61.413(a) to clarify that an authorized flight instructor may provide
training and certain checking events even when the training is not
conducted in furtherance of issuing an endorsement required by FAA
regulation. The FAA notes that current Sec. Sec. 61.193(a) and
61.413(a), and their corresponding reliance on endorsements listed in
Sec. Sec. 61.193(a)(1) through (9) and 61.413(a)(1) through (9),
excludes an express reference to elective and specialized training
activities that are elsewhere encouraged.
For example, although the FAA encourages specialized elective pilot
training under Advisory Circular 90-109,\25\ current Sec. 61.193 does
not explicitly list these types of flight training activities in the
flight instructor privileges. Similarly, while the FAA flight
instructor handbooks promote specialized elective training, such as
transition training and upset recovery training, Sec. Sec. 61.193 and
61.413 do not list this type of activity as flight instructor
privileges. These examples illustrate that amending Sec. Sec. 61.193
and 61.413 is necessary to align the regulatory text with current
policy and industry practice and encourage flight training activities
in the interest of public safety.
---------------------------------------------------------------------------
\25\ Advisory Circular 90-109A, Transition to Unfamiliar
Aircraft (Jun. 29, 2015).
---------------------------------------------------------------------------
The proposed modification to Sec. Sec. 61.193(a) and 61.413(a)
also clarifies that flight instructor privileges include certain
checking events, when the instructor is appropriately authorized. This
may include instrument proficiency checks (IPC), night vision goggle
proficiency checks (NVG), sport pilot proficiency checks, and part 141
checks. To date, these functions have been an implicit privilege for
flight instructors. This proposed modification to Sec. Sec. 61.193(a)
and 61.413(a) makes these privileges explicit.
Next, the FAA proposes to modify Sec. Sec. 61.193(a)(7) and
61.413(a)(6) to clarify that an authorized instructor may conduct pilot
training related to maintaining or improving skills for certificated
pilots, consistent with FAA publications and current industry practice.
For example, the aforementioned Advisory Circular 90-109 provides
recommendations to pilots transitioning to an unfamiliar aircraft,
which includes training with a flight instructor. Additionally,
Advisory Circular 61-98, recommends recurrent training to maintain
proficiency. For instances, Advisory Circular 61-98, states that
``recurrent training, including a flight to a towered airport with an
experienced flight instructor, is a good way to gain proficiency with
airport operations and to develop the required skills to avoid runway
incursions.'' \26\ The proposed modification to Sec. Sec. 61.193(a)(7)
and 61.413(a)(6) refers to training that advances a pilot's preexisting
flying knowledge or skills. Pilots may undergo this type of training to
increase their proficiency in areas that may not require specific
endorsements. Thus, the training contemplated under proposed Sec. Sec.
61.193(a)(7) and 61.413(a)(6) may include transition training to
operate a new aircraft of the same category and class, aerobatic
training, formation training, and mountain flying. While none of these
skills require an endorsement, this training is highly beneficial and
increases safety for already certificated pilots who intend to perform
these types of operations. The proposed training does not contemplate
learning basic flying skills, as in the case of a student pilot.
Instead, the proposed training includes only training for pilots to
maintain or advance preexisting skills, not the initial inception or
development of pilot knowledge.\27\
---------------------------------------------------------------------------
\26\ Advisory Circular 61-98D, Currency Requirements and
Guidance for the Flight Review and Instrument Proficiency Check,
paragraph 2.3.6.1 (Apr. 30, 2018).
\27\ For example, this training would not include aerobatic
flights offered to non-pilots.
---------------------------------------------------------------------------
The FAA finds that having an authorized instructor present in the
aircraft during specialized and elective training events, and in other
scenarios not undertaken in furtherance of meeting a specific
regulatory requirement, promotes safety. Flight training, regardless of
whether it is necessary to meet a regulatory requirement, improves
pilot skills and abilities. As noted, it has been longstanding industry
practice, and the proposed regulation merely clarifies that such
training is an appropriate exercise of a flight instructor's
privileges.
Section 61.1 defines flight training as training received from an
authorized instructor. This section generally defines an authorized
instructor as a person who holds a flight instructor certificate and
who is conducting training in accordance with the privileges and
limitations of the flight instructor's certificate. As previously
described, the privileges enumerated in Sec. 61.193 do not currently
list training related to maintaining or improving skills for
certificated pilots; therefore, this time would not be considered
flight training under the express text of the regulation.\28\ The
proposed modification to this rule would legitimize this time and
enable authorized flight instructors to log this time as flight
training. In addition, permitting authorized flight instructors to log
their flight time during these operations promotes training and
incentivizes instructors to engage in this activity.
---------------------------------------------------------------------------
\28\ Under Sec. 61.51(e)(3), an authorized instructor may log
PIC time for all flight time ``while serving as the authorized
instructor'' in an operation if the instructor is rated to act as
pilot in command of that aircraft.
---------------------------------------------------------------------------
If these amendments are finalized as proposed, the FAA proposes to
rescind the Mostofizadeh legal interpretation.\29\ In pertinent part,
this interpretation found that certificated flight instructors
providing flight training during formation flights were not acting as
authorized instructors.\30\ The interpretation concluded that the
definition of ``instruction'' from Sec. 61.193 only included training
activities conducted to satisfy a pilot's certificates, ratings,
operating privileges, recency of experience requirements, and testing.
The FAA recognizes that the interpretation, although consistent with
the current regulations, would be inconsistent with this proposal if
finalized. As such, the FAA will rescind the interpretation if it
finalizes this rule.
---------------------------------------------------------------------------
\29\ Legal Interpretation to Djavad Mostofizadeh (Apr. 19,
2013).
\30\ Section 61.1 defines ``authorized instructor,'' in relevant
part, as a person who holds a valid flight instructor certificate
when conducting ground training or flight training ``in accordance
with the privileges and limitations'' of their flight instructor
certificate. Those privileges are set forth in Sec. 61.193(a).
---------------------------------------------------------------------------
The FAA's third proposal would add new Sec. Sec. 61.193(c) and
61.413(c) to clarify that no privileges beyond bona fide ground and
flight training, and certain authorized checking events, are
contemplated within flight instructor privileges. Specifically, the
proposed paragraphs would clarify that an authorized flight instructor
cannot utilize the privileges afforded under Sec. Sec. 61.193(a) and
61.413(a) to conduct any operation that would otherwise require an air
carrier certificate, operating certificate, or specific authorization
from the Administrator.
For example, an instructor is not authorized under this section to
solely provide transportation or conduct commercial air tours or
otherwise engage in transportation under the guise
[[Page 41201]]
of flight training.\31\ Likewise, offering introductory or
``orientation'' flights to non-pilots that maintain no intention of, or
interest in, obtaining pilot credentials would likely not fall within
the purview of a flight instructor's privileges, but would likely be
considered to be air tours.\32\ As specified in proposed Sec. Sec.
61.193(c) and 61.413(c), an authorized instructor may not engage in
commercial operations that would otherwise require an air carrier
certificate, operating certificate, or a specific authorization from
the Administrator, under the auspices of flight training. Misuse of
Sec. Sec. 61.193 and 61.413 to provide commercial air tours, is not
permitted.
---------------------------------------------------------------------------
\31\ See Legal Interpretation to Doug McQueen, p. 3 (Apr. 16,
2013).
\32\ See Legal Interpretation to William Grannis (Aug. 3, 2017)
(explaining that ``flight training'' contemplates that ``purpose of
the flight must be student instruction''); see also Legal
Interpretation to Doug McQueen, p. 3 (Apr. 16, 2013) (explaining
that ``a flight conducted for compensation or hire . . . where a
purpose of the flight is sightseeing'' is a ``commercial air
tour''); and Legal Interpretation to Michael Mason (Oct. 3, 2012)
(quoting 2007 Final Rule for proposition that ``sightseeing is not
always a purpose of the barnstorming or vintage aircraft flight
[but] the FAA considers the overall character of the flight to be
sightseeing, even if a primary purpose may be the experience of
flight in an historic aircraft'') (internal brackets and citation
omitted).
---------------------------------------------------------------------------
When ascertaining whether an operation is considered flight
training, the FAA may examine the primary purpose of the flight and
whether the person being carried for compensation or hire is interested
in flight training.\33\ Flights for compensation or hire that would
likely not be construed as flight training include a one-time aerobatic
or barnstorming flight for a person who holds no pilot credentials or
an individual ``fulfilling a one-time bucket list item.'' \34\ In these
scenarios, the person has no intention of obtaining flight training,
but rather is on board for the experience of the flight itself.
Operations of this nature would not fall under the Sec. 119.1(e)(1)
``student instruction'' exclusion and would continue to require an air
carrier or commercial operator certificate issued in accordance with
part 119 or a specific authorization from the Administrator, such as a
commercial air tour letter of authorization. Conversely, persons who
may be interested in pursuing flight training will necessarily have a
first introductory flight with an authorized instructor where basic
flying skills are introduced. This type of introductory flight,
conducted for educational purposes, would be considered flight
training.
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\33\ Legal Interpretation to Michael Mason (Oct. 3, 2012)
(explaining that FAA may consider several factors when determining
whether a flight is conducted for flight training).
\34\ See Legal Interpretation to William Grannis (Aug. 3, 2017)
(explaining that because ``persons being carried for compensation or
hire are not interested in flight training . . . [i]t is therefore
unlikely that the purpose of these flights would be student
instruction'').
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The FAA also notes that, aside from permitting an authorized flight
instructor to conduct certain checking events and training related to
maintaining or improving skills for certificated pilots, the
requirements in Sec. Sec. 61.193 and 61.413 remain unchanged. For
example, the list of endorsements an authorized instructor may issue
remains unchanged under both affected sections. In this regard, the
proposed amendments do not change the requirement that an instructor
must be authorized in accordance with the definitions provided in Sec.
61.1(b) to conduct flight training.
Authorized flight instructors that conduct training and checking
events under this proposed amendment may begin documenting and
recording their flight time to prepare if this proposal becomes final.
The FAA notes that many instructors have historically logged this time,
despite the fact that the regulatory language did not explicitly enable
it. If the proposals related to flight instructors are adopted in a
final rule, the FAA will permit instructors to credit their prior
flight time consistent with this amendment retroactively. As a result,
the FAA encourages authorized instructors to begin documenting and
recording this time, if not already part of their standard practice, to
receive credit if this proposal is adopted.
While the FAA did not evaluate similar changes to Sec.
61.133(a)(2)(i)(E) and (ii)(D) for airship and balloon flight training,
the Administrator seeks public comment on the merits of making the same
change for commercial pilots with lighter-than-air category ratings who
provide flight training in the final rule, if adopted.
IV. Aircraft Holding Certain Special Airworthiness Certificates
A. Background: Emergency Cease and Desist Order, Litigation, and FAA
Notice
The restrictions on operating aircraft that hold special
airworthiness certificates carrying people for compensation or hire
recently came under review as a result of an emergency cease and desist
order issued to Warbird Adventures, Inc. by the FAA in 2020.\35\ In
that case, the operator maintained a publicly available website that
advertised opportunities to fly in a limited category aircraft at
upcoming airshows and allowed members of the public to book flights in
exchange for compensation. The operator brought a petition for review
of the emergency order before the court.\36\ The operator argued it was
conducting flight training for compensation in its limited category
aircraft, which it claimed is not a prohibited activity under Sec.
91.315.\37\ In response, the FAA argued that, under the plain language
of Sec. 91.315, flight training for compensation constitutes operating
a limited category aircraft carrying a person for compensation or hire
and, therefore, is a violation of the regulation.\38\
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\35\ Emergency Cease and Desist Order Issued by the Federal
Aviation Administration (July 28, 2020).
\36\ Warbird Adventures, Inc. v. Fed. Aviation Admin., Petition
for Review from an Emergency Cease and Desist Order Issued by the
Federal Aviation Administration on July 28, 2020, Doc. No. 1854466
(D.C. Cir. 2020).
\37\ The FAA has not conceded that the flights being operated
were for the purpose of legitimate flight training.
\38\ Section 91.315 states, ``No person may operate a limited
category civil aircraft carrying persons or property for
compensation or hire.''
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On April 2, 2021, the Court dismissed the petition for review of
the cease and desist order.\39\ Following the Court's dismissal,
several aviation industry groups sought clarification from the FAA on
how the decision affected flight training in experimental aircraft,
since the prohibitory language of Sec. 91.315 for limited category
aircraft is the same as that in Sec. 91.319 for experimental aircraft.
In particular, industry advocates sought clarification on whether the
owner of an experimental aircraft who receives and pays for flight
training in that aircraft is operating the aircraft carrying a person
for compensation or hire. Similarly, industry advocates asked whether
the flight instructor also was operating the aircraft in violation of
the prohibition in Sec. 91.319. Industry noted that FAA guidance at
that time allowed an experimental aircraft to be used in such a way
without running afoul of the requirement to obtain a LODA to conduct
flight training.\40\
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\39\ The Court stated: ``A flight student is a ``person.'' Id.
Sec. 91.315; see also id. Sec. 1.1. When a student is learning to
fly in an airplane, the student is ``carr[ied].'' Id. Sec. 91.315.
And when the student is paying for the instruction, the student is
being carried ``for compensation.'' Id.'' Warbird Adventures, Inc.
v. Fed. Aviation Admin., 843 F. App'x 331 (D.C. Cir. 2021).
\40\ The guidance (FAA Order 8900.1, Vol. 3, Chpt. 11, sec. 1,
para. 3-292) stated that flight instructors may receive compensation
for providing flight training in an experimental aircraft but may
not receive compensation for the use of the aircraft in which they
provide that flight training unless they obtain a LODA issued under
Sec. 91.319(h). Likewise, the guidance stated that owners of
experimental aircraft may receive and provide compensation for
flight training in their aircraft without a LODA, but owners may not
receive compensation for the use of their aircraft for flight
training except in accordance with a LODA issued under Sec.
91.319(h).
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[[Page 41202]]
In response, the FAA published a Notification of Policy in the
Federal Register laying out its position that, when compensation is
provided for flight training, it is contrary to the prohibition on
operating an aircraft carrying a person for compensation or hire even
when no compensation is provided for the use of the aircraft.\41\ The
FAA announced that it would rescind the agency guidance that conflicted
with the plain meaning of the regulation and noted it would consider a
future rulemaking to remove obstacles to flight training for owners of
aircraft with certain special airworthiness certificates while
maintaining prohibitions on broadly offering these aircraft for flight
training to the public. This NPRM proposes those changes.
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\41\ Notification of Policy for Flight Training in Certain
Aircraft, 86 FR 36493 (Jul. 12, 2021).
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In addressing the flight training concerns, the FAA has also found
conflicts between the general prohibitions in Sec. Sec. 91.315,
91.319, and 91.325 (applicable to limited category, experimental and
primary category aircraft respectively) and operating limitations
placed on these aircraft during the aircraft certification process,
legal interpretations, and guidance related to carriage of persons or
property aboard these aircraft during operations involving compensation
or hire. Terms within these regulations are either broadly defined
(e.g., operate, person) or have been broadly interpreted over time
(e.g., compensation), resulting in obstacles to certain flight training
that the FAA did not intend.
For example, since the FAA considers a flight instructor to be
operating an aircraft carrying a person for compensation or hire (even
when the compensation is paid only for the flight training), then any
pilot who receives compensation for piloting a limited category,
experimental, or primary category aircraft would be in violation of the
rule when operating an aircraft for compensation with another person is
on board.\42\ The FAA did not intend to prohibit a pilot's receipt of
compensation for operations which may incidentally carry persons in
aircraft with certain special airworthiness certificates. In fact, as
discussed later in this section, the FAA finds that some operations of
these aircraft necessarily involve carrying people when compensation is
provided to the operator or flightcrew.
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\42\ The FAA notes that, while it may seem inappropriate to
apply the word ``operate'' to required flightcrew in this scenario,
other part 91 regulations that use the word ``operate'' are clearly
intended to apply to both the owner of an aircraft and the required
flightcrew. For example, it would create an absurd result to suggest
that Sec. 91.111(a), which states ``no person may operate an
aircraft so close to another aircraft as to create a collision
hazard,'' should not be applied to the flightcrew. It would result
in confusion if the regulated community cannot rely on a consistent
application of the term ``operate'' throughout part 91.
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The following discussion provides further explanation of the
obstacles created by the current regulatory language. With respect to
an aircraft, the word ``operate'' is broadly defined in Sec. 1.1 as
``use, cause to use or authorize to use aircraft, for the purpose
(except as provided in Sec. 91.13 of this chapter) of air navigation
including the piloting of aircraft, with or without the right of legal
control (as owner, lessee, or otherwise).'' While the term ``operate''
may refer to the person piloting an aircraft, it also extends to
aircraft owners who use an aircraft without piloting it, to owners who
authorize someone else to use the aircraft, and to the persons that the
owner authorizes to use the aircraft. Under the regulatory definition,
an aircraft may be operated by more than one person for purposes of
part 91 regulations.\43\
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\43\ For example, Sec. 91.7(a) prohibits any person from
operating a civil aircraft unless it is in an airworthy condition. A
violation of this regulation would likely involve the pilot in
command who is responsible for determining whether that aircraft is
in condition for safe flight under Sec. 91.7(b), but it may also
involve the owner of the aircraft if the owner is shown to have
authorized the use of the aircraft in an unsafe condition.
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Likewise, the phrase ``operate carrying persons or property for
compensation or hire'' has been viewed to mean that the receipt of
compensation is in exchange for the carriage of persons or property
rather than that there is receipt of compensation for operating while
carrying persons or property. Importantly, ``carriage'' does not
necessarily mean transportation from place to place nor does it speak
to the reason a person is being carried. Any person on board an
aircraft with another is considered to be ``carried.'' \44\ Therefore,
the regulations could be interpreted to mean that no person may receive
compensation for an operation which carries persons or property,
regardless of the nature of the operation or whether compensation is
provided for some service other than the carriage of persons.
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\44\ There are a number of operations permitted under part 91
operating rules that involve the carriage of persons that are not
point-to-point transportation.
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Furthermore, the FAA has consistently construed ``compensation''
broadly.\45\ Given this broad definition, there are a number of
scenarios where operations may be precluded that the FAA did not intend
to foreclose. For instance, flights involving an aircraft manufacturer
carrying prospective customers in an aircraft with an experimental
special airworthiness certificate utilizing the experimental market
survey purpose or a flight instructor providing customer crew training
under this purpose could be in violation if the pilot or instructor,
respectively, is being compensated. \46\
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\45\ See Legal Interpretation to Joseph Kirwan (May 27, 2005).
Compensation ``does not require a profit, a profit motive, or the
actual payment of funds.'' Rather, compensation is the receipt of
anything of value. See also Legal Interpretation to John W.
Harrington (Oct. 23, 1997); Blakey v. Murray, NTSB Order No. EA-5061
(Oct. 28, 2003). The FAA has previously found that reimbursement of
expenses (fuel, oil, transportation, lodging, meals, etc.),
accumulation of flight time, and goodwill in the form of expected
future economic benefit could be considered compensation.
\46\ See Sec. 21.191(f), which describes the market survey
purpose as, ``Use of aircraft for purposes of conducting market
surveys, sales demonstrations, and customer crew training only as
provided in Sec. 21.195.''
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With this proposed rule, the FAA seeks to narrow and more clearly
define the types of operations that are precluded in aircraft holding
certain special airworthiness certificates. Therefore, the FAA is
proposing changes to clarify how these aircraft may be operated.
Should the modifications to the part 91 regulations proposed by
this rule become final, the FAA will rescind certain legal
interpretations related to the carriage of persons or property for
compensation or hire in limited category, experimental, and primary
category aircraft (i.e., Legal Interpretation to Bob Shaw (Feb. 4,
2008), Legal Interpretation to Joy Ratini (Apr. 30, 2014), Legal
Interpretation to Gregory Morris (Oct. 7, 2014), and Legal
Interpretation to E.J. Sinclair (Jul. 22, 2015)). The purpose of those
affected legal interpretations was to explain the circumstances under
which persons or property could be carried for compensation or hire
under Sec. Sec. 91.315, 91.319, and 91.325. However, the modifications
proposed by this rule would implement a new regulatory structure which
would replace the explanations provided by the legal interpretations.
B. Part 91 Regulations Governing the Operation of Aircraft With Certain
Special Airworthiness Certificates (Sec. Sec. 91.315, 91.319, 91.325,
and 91.327)
The FAA proposes to amend the part 91 regulations governing the
operation of limited category, experimental, and primary category
aircraft to reflect two modifications. First, the FAA proposes to
modify Sec. Sec. 91.315, 91.319(a)(2), and
[[Page 41203]]
91.325(a) (applicable to limited category, experimental, and primary
category aircraft, respectively) to change the existing language from a
general prohibition on carrying persons or property for compensation or
hire to more specifically identify the commercial operations that may
not be conducted in these aircraft if persons or property are carried
on board. These operations would include air carrier or commercial
operations \47\ as well as other commercial operations in which persons
or property are carried. Specifically, except as provided in proposed
Sec. 91.326 (discussed more fully later in the preamble), the proposed
amendments would prohibit conducting operations which: (1) require an
air carrier or commercial operator certificate issued under part 119;
(2) are listed in Sec. 119.1(e); (3) require management specifications
for a fractional ownership program issued in accordance with subpart K
of part 91; or (4) are conducted under parts 129, 133, or 137. The
proposed modifications are intended to narrow the prohibition on the
carriage of persons or property for compensation or hire and to clarify
the FAA's intent, which is to prohibit the operation of aircraft
holding certain special airworthiness certificates as air carriers,
commercial operators, or otherwise carrying persons or property for
hire in a manner that would require authorization from the
Administrator, such as an air carrier or a commercial air tour. These
aircraft are purpose-built for specific operations and do not meet the
same rigorous design, build, and maintenance standards as aircraft that
are eligible for use in passenger and property carrying operations for
hire. Therefore, aircraft holding certain special airworthiness
certificates require additional restrictions on operations for
compensation or hire.
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\47\ Section 1.1 defines ``Air carrier'' as a person who
undertakes directly by lease, or other arrangement, to engage in air
transportation. Section 1.1 defines ``Commercial operator'' as a
person who, for compensation or hire, engages in the carriage by
aircraft in air commerce of persons or property, other than as an
air carrier or foreign air carrier or under the authority of part
375 of this title. Where it is doubtful that an operation is for
``compensation or hire'', the test applied is whether the carriage
by air is merely incidental to the person's other business or is, in
itself, a major enterprise for profit.
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Second, in proposed Sec. 91.326(a), the FAA proposes to codify the
2023 NDAA provision to allow certain flight training, checking, and
testing in experimental aircraft without a LODA and apply this
allowance to limited and primary category aircraft and establish a
consistent LODA framework for limited category and experimental
aircraft in Sec. 91.326(b).
Section 91.326(a) would establish the conditions under which a
person may operate these aircraft to accomplish training, checking, and
testing without the need to obtain a LODA from the FAA. For those
operations that cannot meet the conditions for operating without a
LODA, Sec. 91.326(b) would codify a consistent framework for
requesting a LODA to conduct flight training, checking, and testing in
limited category and experimental aircraft similar to the allowance
currently reflected in Sec. 91.319(h) for experimental aircraft. The
FAA also proposes corresponding amendments to the general prohibitions
in Sec. Sec. 91.315, 91.319(a)(2), and 91.325(a) to reflect the
exception in newly proposed Sec. 91.326. Section 91.326 is discussed
more fully later in this preamble.
1. Prohibited Commercial Operations
The FAA proposes to identify part 119 and other regulatory parts
pertaining to specific commercial operations to clearly delineate the
operations involving the carriage of persons and property for
compensation and hire that are prohibited in aircraft holding certain
special airworthiness certificates. This proposal balances the
additional safety benefits afforded by Sec. 91.326 for flight
training, checking, and testing with the public expectation and safety
mitigations necessary for operations involving aircraft holding certain
special airworthiness certificates. Where there is receipt of
compensation for transportation, the public expects, and the FAA
demands, a higher level of safety.\48\
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\48\ See Advisory Circular No. 61-142, Sharing Aircraft
Operating Expenses in Accordance with 14 CFR 61.113(c), (2020).
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Importantly, transportation does not necessarily mean ``from place
to place,'' as evidenced by numerous interpretations and guidance
referencing ``common carriage,'' whereby the FAA has qualified two of
the four tenets of common carriage as ``(2) to transport persons or
property (3) from place to place.'' \49\ The FAA notes that, from a
regulatory standpoint, transportation can simply mean conveyance for a
purpose, such as a non-stop commercial air tour that takes off and
lands at the same airport or carriage of an aerial photographer. Each
of these examples represents an operation where a person has paid to be
carried in an aircraft and which is precluded under the text of the
current rule and would continue to be precluded under the proposed
rule. Operations where people are carried in an aircraft, but are not
paying for that conveyance, are discussed in greater detail later in
this section.
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\49\ See Advisory Circular No. 61-142, Sharing Aircraft
Operating Expenses in Accordance with 14 CFR 61.113(c), (2020).
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Part 119 contains basic requirements that apply to each person that
operates or intends to operate a civil aircraft as an air carrier or
commercial operator, or both, in air commerce. This part specifies the
types of operations that the FAA has determined require greater
oversight, maintenance, training, and operational requirements to
ensure public safety when carrying persons or property for compensation
or hire. Depending on the type of operation and aircraft used, an air
carrier or commercial operator conducts these operations under the
operating rules in either part 121 or part 135.
Part 119 likewise excepts certain commercial operations from
certification under that part. Carriage of persons or property for
compensation or hire during these excepted operations will continue to
be prohibited in aircraft holding certain special airworthiness
certificates under the proposed modifications to the rules. Section
119.1(e) enumerates various types of commercial operations that may be
conducted without an air carrier or commercial operator certificate.
For example, Sec. 119.1(e)(2) refers to nonstop commercial air tours,
Sec. 119.1(e)(4) lists various forms of aerial work operations, and
Sec. 119.1(e)(6) refers to intentional parachute drop operations.
These types of commercial operations are conducted under the general
operating rules in part 91. In addition to these commercial operations
that may be conducted under part 91, subpart K of part 91 allows for
carriage of persons or property in fractional ownership programs
without part 119 certification. Other parts, such as parts 129, 133,
and 137, specify regulations related to other highly-specific
commercial operations that require additional oversight by the FAA but
do not require part 119 certification.
Each of these parts, as they relate to carriage of persons or
property for compensation or hire, contain operating rules intended to
ensure the safety of those being carried, as well as the non-
participating public on the ground. The restrictions on using aircraft
with special airworthiness certificates to conduct these operations are
based on a safety continuum,\50\ which assigns
[[Page 41204]]
aircraft privileges based on the corresponding level of design, build,
maintenance, and operational requirements. Aircraft that are built
specifically for the purpose of carrying persons or property for
compensation or hire are required to meet higher design and build
standards, such as those required by 14 CFR parts 23, 25, 27, and 29
and appear at the highest levels of the safety continuum. These
aircraft may be used for compensation or hire, and they are generally
not limited to specific areas of operation or special operating rules.
Aircraft used for unique commercial operations, such as part 133
rotorcraft external load operations and part 137 agricultural aircraft
operations are purpose-built and have operating limitations assigned to
perform those tasks safely. By contrast, aircraft holding limited
category, experimental, and primary category airworthiness certificates
were not built or certificated for the aforementioned purposes, nor
were they contemplated for use in those regulatory frameworks. As such,
these aircraft fall lower on the safety continuum than standard
category aircraft. Specifically, limited aircraft fall lower on the
continuum as they were built to a standard but retain special
airworthiness certification since they were designed for military uses.
Experimental aircraft are on the opposite end of the continuum from
standard category aircraft. Experimental aircraft have not necessarily
been found to meet airworthiness standards and are excepted from many
of the regulatory maintenance and inspection requirements of standard
category aircraft.51 For these reasons, experimental
aircraft are assigned the most restrictive operating limitations.
Finally, primary category aircraft were built for personal and
recreational use. As such, aircraft holding special airworthiness
certificates continue to have associated regulations which limit
certain activities.
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\50\ Safety Continuum is described as the level of safety
established by regulation, guidance and oversight that changes based
on risk and societal expectations of safety. The safety continuum
applies an appropriate level of safety from small unmanned aircraft
systems to large transport category aircraft. The differing levels
of safety balance the needs of the flying public, applicants and
operators while facilitating both the advancement of safety and the
encouragement of technological innovation. https://www.faa.gov/about/office_org/headquarters_offices/avs/offices/air/transformation/csp/concepts.
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The intent of this proposal is to update regulatory language to
align the FAA's intent with the public's expectation for operations in
aircraft with certain special airworthiness certificates, while
ensuring no adverse effect on safety. To continue to ensure public
safety and more clearly identify those operations prohibited in
aircraft that hold certain special airworthiness certificates, the FAA
proposes to list in Sec. Sec. 91.315, 91.319, and 91.325, the specific
operations (i.e., operations that require a part 119 air carrier or
commercial operator certificate or are identified in Sec. 119.1(e),
operations that require management specifications under subpart K of
part 91, operations under part 129, part 133, and part 137) that are
prohibited in aircraft that hold certain special airworthiness
certificates. This more specific language would replace the broad
language in the current part 91 regulations that, as previously
discussed, forecloses operations that the FAA did not intend to
prohibit.
The FAA finds that listing out the specific operations that are
prohibited rather than relying on the broad language currently
reflected in Sec. Sec. 91.315, 91.319, and 91.325 would better advise
the regulated community on how to comply. Notably, part 119 did not
exist when the FAA introduced these special airworthiness categories
into its regulations. However, today part 119 is a widely used
regulatory part supported by legal interpretations, FAA advisory
circulars, and case law. The regulations and associated guidance will
more clearly inform the owners and operators of aircraft with special
airworthiness certificates that operations requiring part 119
certification as well as those commercial operations excepted from part
119 certification are not permitted in their aircraft when persons or
property are carried on board for compensation. For this reason, the
FAA does not believe that further discussion of the operations
requiring or excepted from part 119 certification is necessary in this
NPRM.
Permitting the listed operations in aircraft with certain special
airworthiness certificates is not in the interest of public safety.
These operations were not intended for aircraft holding certain special
airworthiness certificates in the original regulations when they were
developed, and they would continue to be excluded from these types of
operations under the proposed rules. The FAA finds that there are
sufficient aircraft that are appropriately certificated (e.g., standard
and restricted category) to conduct the types of commercial operations
previously described. The FAA understands the interest by owners and
operators of aircraft with special airworthiness certificates to
broaden their opportunities to receive compensation for the use of
their aircraft; however, there is simply no compelling reason to lower
the existing standard and expand the operating footprint for aircraft
that hold these special airworthiness certificates.
For these reasons, the FAA proposes to revise the regulatory
language of Sec. Sec. 91.315, 91.319(a)(2), and 91.325(a) to clarify
that, except for flight training, checking, and testing as specified in
Sec. 91.326, persons may not operate these aircraft carrying persons
or property for compensation or hire in operations that require an air
carrier or commercial operator certificate issued under part 119; are
listed in Sec. 119.1(e); require management specifications for a
fractional ownership program issued in accordance with subpart K of
part 91; or are conducted under parts 129, 133, or 137.
2. Limited Category Airworthiness Certificates (Sec. 91.315)
The limited category airworthiness certification was developed
shortly after World War II. This certification enabled the large number
of available military surplus aircraft to continue to be useful after
the war, but only for limited purposes.\52\ To be granted a limited
category airworthiness certificate, the aircraft's military records
could not disclose any characteristics which would render it unsafe
when operated as a civil aircraft in accordance with the limitations
and conditions prescribed by the Administrator.\53\ Additional
operating limitations were required for limited category aircraft to
account for the difference in certification requirements between
limited and standard category aircraft. These limitations included the
prohibition on carrying passengers and cargo for hire. Eventually, the
limited category regulatory language became even more restrictive to
prohibit the carriage of persons, not just passengers, for compensation
or hire.\54\
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\52\ Pilot Certificates, 14 CFR, 1946 Supp. 2132. Specifically,
the Civil Air Regulations (CAR) part 09 explained that the limited
category airworthiness classification was developed ``for the
purpose of making available to the public certain military surplus
aircraft which were originally designed for the military services of
the United States for combat and other specialized purposes and
which experience in military service has shown to be safe for
operation so long as the operation is confined to flights in which
neither passengers nor cargo are carried for hire.''
\53\ Pilot Certificates, 14 CFR 09.10(c), 1946 Supp. 2130.
\54\ While earlier versions of Sec. 91.315 only prohibited the
carriage of ``passengers'' for compensation or hire, the regulation
was subsequently amended to prohibit the carriage of any ``persons''
for compensation or hire. Compare Pilot Certificates, 14 CFR
09.10(c), 1946 Supp. 2130, note (confining use of limited category
aircraft to flights ``in which neither passengers nor cargo are
carried for hire'') with 54 FR 34284, 34309 (Aug. 18, 1989)
(prohibiting ``carrying persons or property for compensation or
hire'').
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The history of limited category airworthiness certificates
illustrates the
[[Page 41205]]
FAA's original intent of who may be carried in these aircraft. The FAA
finds that this history, in conjunction with current industry practice
and ensuring consistency with other special airworthiness certificated
aircraft, supports this proposal to modify the language in Sec. 91.315
to better articulate the types of operations permitted in these
aircraft. Overall, this proposed rule would increase the operational
privileges afforded to limited category aircraft by enabling, with
certain limitations, flight training, checking, and testing, as well as
modify the generally prohibitive language to be more specific with
regard to operations that cannot be conducted for compensation or hire
with persons or property on board. Therefore, the FAA is proposing to
amend Sec. 91.315 to clarify that, except as provided in Sec. 91.326
(discussed later in this section), persons may not operate these
aircraft carrying persons or property for compensation or hire in
operations which require an air carrier or commercial operator
certificate issued under part 119; are listed in Sec. 119.1(e);
require management specifications for a fractional ownership program
issued in accordance with subpart K of part 91; or are conducted under
parts 129, 133, or 137.
3. Experimental Airworthiness Certificates (Sec. 91.319)
a. Experimental Aircraft--General
Experimental aircraft do not meet the same design, build, and
maintenance requirements as aircraft that hold standard airworthiness
certificates. Experimental aircraft fall lower on the safety continuum
than limited and primary category aircraft, as they are not necessarily
built to any standard. For this reason, experimental aircraft are
assigned additional operating limitations in Sec. 91.319, to include
types of operations (Sec. 91.319(a)(1)) \55\ that may be conducted and
areas of operation (Sec. 91.319(c)) in which operations may take
place.\56\
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\55\ Section 91.319(a)(1) specifies that no person may operate
an aircraft that has an experimental certificate for other than the
purpose for which the certificate was issued.
\56\ Section 91.319(c) specifies that unless otherwise
authorized by the Administrator in special operating limitations, no
person may operate an aircraft that has an experimental certificate
over a densely populated area or in a congested airway. The
Administrator may issue special operating limitations for particular
aircraft to permit takeoffs and landings to be conducted over a
densely populated area or in a congested airway, in accordance with
terms and conditions specified in the authorization in the interest
of safety in air commerce.
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The FAA proposes to modify the broad language in Sec. 91.319(a)(2)
regarding the operation of these aircraft carrying persons or property
for compensation or hire to further clarify its intent. As previously
discussed, the plain language in the current regulatory text of Sec.
91.319(a)(2) results in an outcome that the FAA finds overly
restrictive. The current language results in the prohibition of
operations that the experimental purposes listed in Sec. 21.191 were
specifically designed to enable.\57\ For example, the experimental
purpose of research and development (R&D) in Sec. 21.191(a) was
designed to accommodate testing new aircraft design concepts, new
aircraft equipment, new aircraft installations, new aircraft operating
techniques, or new uses for aircraft. Often, aircraft manufacturers and
equipment or component manufacturers work in tandem during development
and testing to ensure safe system integration. This testing may require
experts from both manufacturers to participate in the test flights.
However, the plain language of Sec. 91.319(a)(2) would prohibit the
operator from carrying persons if the aircraft or system is being
developed for compensation \58\ because both the manufacturer and the
pilot could be construed to be operating while carrying persons or
property for compensation or hire. The exclusion of persons performing
an essential function that is directly related to the experimental
purpose unnecessarily places a burden on the operator to obtain an
exemption to complete this work and was not intended to fall under the
broad language of the regulation.
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\57\ See Sec. 21.191 Experimental Certificates for a list of
experimental purposes.
\58\ Compensation can come in many forms. For example, an
aircraft manufacturer might be compensated by way of a Department of
Defense contract to build aircraft for the military or to test
certain equipment.
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There are other experimental purposes where compensation may be a
result of the operation. For instance, the experimental crew training
purpose (Sec. 21.191(c)) is silent as to whether pilots (instructor or
trainee) are compensated during training. Likewise, the experimental
market survey purpose (Sec. 21.191(f)), developed specifically to
demonstrate the aircraft to persons who are in a position to make a
purchase decision in hopes of selling an aircraft or component
(expected future economic benefit), is also silent as to whether pilots
are compensated during such an operation.
The FAA finds there would be no adverse effect on safety from the
proposed modified language because experimental aircraft are assigned
additional operating limitations that mitigate risk. Experimental
aircraft are limited by Sec. 91.319(a)(1) in the types of operations
they may perform. Section 91.319(a)(1) specifies that persons are
prohibited from operating an experimental aircraft for other than the
purpose for which the certificate was issued.\59\ This means, for
example, that an experimental aircraft certificated for the purpose of
R&D can only be operated to perform those R&D tests identified at the
time of certification. R&D certificates have a maximum expiration date
of one year. This affords the FAA an opportunity to reevaluate the
validity of the proposed test. Likewise, an experimental aircraft
certificated for the purpose of crew training can only be operated to
train the applicant's flight crews. There is no experimental purpose
which would support the carriage of persons or property as a major
enterprise for profit.\60\
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\59\ See Sec. 21.191 Experimental Certificates for a complete
listing of all experimental purposes.
\60\ The Sec. 1.1 Commercial Operator definition explains that
``[w]here it is doubtful that an operation is for `compensation or
hire,' the test applied is whether the carriage by air is merely
incidental to the person's other business or is, in itself, a major
enterprise for profit.''
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Furthermore, experimental aircraft are restricted by Sec.
91.319(c) from overflight of densely populated areas unless
specifically authorized by the Administrator. This prohibition
mitigates risk to non-participating public on the ground. In addition,
under Sec. 91.319(i), the Administrator may impose additional
operating limitations on experimental aircraft based on aircraft
characteristics and associated risks. These additional operating
limitations further mitigate risks associated with various hazards that
may be introduced in experimental aircraft. For these reasons, the FAA
sees no adverse effect on safety in the proposed modification of Sec.
91.319(a)(2) to more accurately reflect the prohibited operations
contemplated for experimental aircraft.
b. Experimental Light-Sport Aircraft (Sec. 91.319)
Section 91.319(e) contains specific limitations on the use of
certain experimental aircraft certificated under Sec.
21.191(i)(1).\61\ The FAA proposes to modify Sec. 91.319(e)(2) to
remove the date restriction on flight training in these aircraft and
direct readers to the flight training, checking, and testing in
proposed Sec. 91.326. Likewise, the FAA proposes to modify paragraph
(f),
[[Page 41206]]
regarding the leasing of aircraft issued an experimental certificate
under Sec. 21.191(i).
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\61\ Section 21.191(i)(1) covers light-sport aircraft that have
not been issued a U.S. or foreign airworthiness certificate and do
not meet the criteria for ``ultralight vehicles'' provided in Sec.
103.1.
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Before 2004, the FAA granted exemptions to permit two-seat
ultralight-like aircraft, which did not meet the part 103 requirements
of this chapter, to be used for compensation or hire for the purpose of
flight training.\62\ On July 27, 2004, the FAA issued a final rule
defining light-sport aircraft to include simple, small, lightweight,
low-performance aircraft. Additionally, in the 2004 final rule the FAA
created a new special airworthiness certificate in the light-sport
category for special light-sport aircraft (SLSA) in Sec. 21.190 and
added light-sport aircraft to the existing experimental special
airworthiness certificate for experimental light-sport aircraft (ELSA)
in Sec. 21.191(i).\63\
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\62\ By regulation, an ultralight vehicle must be used or
intended to be used for manned operation in the air by a single
occupant and may be used or intended to be used for recreation or
sport purposes only. 14 CFR 103.1(a), (b). Because two-place
aircraft do not meet this requirement, they cannot be operated as
ultralight vehicles under part 103.
\63\ 69 FR 44881 (Jul. 27, 2004). Under Sec. 21.191(i)(1), no
experimental certificates may be issued for these aircraft after
January 31, 2008.
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The 2004 final rule permitted instructors to conduct flight
training in these ELSA aircraft for compensation or hire until January
31, 2010, which diminished the need for the part 103 training
exemptions that allowed the operation of two-seat ultralight-like
aircraft that did not conform to part 103. As stated in the 2004 final
rule, a significant purpose of the rule was to certificate those two-
seat ultralight-like aircraft previously operated under part 103
training exemptions and those two-seat and single-seat unregistered
ultralight-like aircraft operating outside of the regulations.
Specifically, SLSA regulations include aircraft manufactured
according to an industry consensus standard rather than a type
certificate. ELSA regulations include provisions for: (1) a temporary
allowance for migration of two-seat ultralight-like aircraft that did
not conform to 14 CFR part 103 and were previously operated under part
103 training exemptions, (2) kit-built versions of SLSA aircraft, and
(3) aircraft previously issued a special airworthiness certificate in
the light-sport category under Sec. 21.190.
When publishing the 2004 final rule, the FAA anticipated that the
newly manufactured SLSA would replace the former two-seat ultralight-
like aircraft that did not conform to 14 CFR part 103 (newly
certificated as ELSA) such that flight training in ELSA would no longer
be necessary. The FAA, knowing that the manufacture of the new SLSA
aircraft would take time, created provisions in existing Sec. 91.319
to allow for an extension of the time period to permit the use of
properly registered aircraft with ELSA airworthiness certificates to be
used for flight training by the same owner until January 31, 2010.
After January 31, 2010, ELSA aircraft were no longer permitted to be
used for flight training for compensation or hire.
The FAA predicted that 60 months would be an adequate amount of
time for the new SLSA to enter service to replace the ELSA and meet
flight-training demands. The FAA also anticipated that 60 months would
provide the owners of the transitioning ELSA with additional time to
purchase SLSA to provide flight training under the new rule, thereby
delaying replacement costs. In addition, the FAA believed the action
would further expand the growth of the industry as a whole. However,
the new SLSA has not materialized in the way that was projected,
especially for two-seat aircraft used for light-sport and ultralight
training. Industry production of all aircraft slowed during the
projected period, resulting in lower acquisition costs of standard
category aircraft that could be operated as light-sport aircraft. This
caused the projected production of SLSA to no longer be considered
financially viable, in many cases.
Experimental light-sport aircraft are good training aircraft for
light-sport and ultralight vehicles because they may be low mass/high
drag aircraft that contain a second seat that may be occupied by an
authorized flight instructor. The use of ELSA as a training option for
light-sport aircraft and ultralights provides an avenue for structured
flight training from an FAA certificated flight instructor. The FAA
does not wish to impede individuals who want to take advantage of
flight training that is relevant to the type of aircraft they operate.
Additionally, the FAA recognizes the importance of availability of
training aircraft for new light-sport pilots and existing pilots who
are transitioning from a conventional aircraft to a low mass/high drag
aircraft. While two-seat, light-sport, low mass/high drag trainers with
SLSA airworthiness certificates can be found on the market for use in
flight training, they do not exist in numbers that provide for
widespread availability.
Given the aforementioned considerations and the delayed timeline
for availability of SLSA aircraft, the FAA undertook a new rulemaking
in 2014. On October 24, 2014, the FAA published a NPRM titled Removal
of the Date Restriction for Flight Training in Experimental Light Sport
Aircraft.\64\ To ensure these aircraft are used solely for the purpose
of flight training, and to better control and monitor the use of ELSA
for flight training, the FAA proposed to require a LODA for persons who
intended to conduct flight training for compensation or hire using
ELSA. The FAA proposed this change to allow for increased availability
of flight training in aircraft with similar characteristics to light-
sport aircraft and ultralights. As mentioned previously, the 2004 final
rule permitted training in ELSA for compensation or hire for the
purpose of flight training until January 31, 2010. The NPRM proposed to
remove the date restriction in Sec. 91.319(e)(2) and add language to
permit training in certain ELSA for compensation or hire through
existing deviation authority provided in Sec. 91.319(h) of this part.
---------------------------------------------------------------------------
\64\ 83 FR 53590 (Oct. 24, 2018).
---------------------------------------------------------------------------
For the reasons provided in the concurrently issued Withdrawal of
the Removal of the Date Restriction for Flight Training in Experimental
Light Sport Aircraft, the FAA is withdrawing the NPRM titled Removal of
the Date Restriction for Flight Training in Experimental Light Sport
Aircraft, and instead is developing this rule that resolves the
discrepancy more broadly for all experimental aircraft and better
serves the public interest.
This proposed rule will address the parameters of flight training
in experimental light-sport aircraft more comprehensively than the 2014
NPRM would have. This rule also proposes to create a consistent flight
training framework for limited category and experimental aircraft.
Therefore, flight training in ELSA is more appropriately incorporated
into this rulemaking.
The FAA is incorporating changes to Sec. 91.319(e) and (f) to
increase the availability of light-sport aircraft for training, and aid
individuals who wish to train in the type of aircraft they operate.
This rulemaking proposes to change Sec. Sec. 91.319(e)(2) and
91.319(f) to direct stakeholders to proposed Sec. 91.326, which
describes exceptions for flight training, checking, and testing. The
FAA recognizes that training in an ELSA is beneficial for pilots to
gain familiarity with the performance and handling qualities of other
light-sport aircraft and ultralights.
In addition, proposed Sec. 91.319(f)(2) would allow a person
receiving flight training to lease certain ELSA for the purpose of
accomplishing solo flight and practical test in accordance with a
training program included in the
[[Page 41207]]
deviation authority authorized in accordance with proposed Sec.
91.326(b). Currently, Sec. 91.319(f) prohibits the leasing of certain
ELSA, except to tow a glider or unpowered ultralight vehicle. If the
proposed rule becomes final, certain ELSA aircraft will be eligible to
operate for the purpose of flight training in accordance with proposed
Sec. 91.326. Removing the leasing restriction under certain
circumstances is necessary to meet the part 61 pilot certification
requirements of this chapter. Because of the unique characteristics of
these aircraft, the FAA has determined that training in accordance with
a Sec. 91.326(b) LODA, to include solo flight and practical tests
required for pilot certification, enhances safety. Solo flight and
practical tests may require leasing of the aircraft.
c. Miscellaneous Amendments
The FAA also proposes a few miscellaneous amendments to Sec.
91.319. First, the FAA proposes to modify Sec. 91.319(d)(3) to use
``air traffic control'' (ATC) in place of ``control tower.'' This
language is consistent with the other regulatory sections that
reference ``air traffic control'' instead of ``control tower.'' \65\
Although the current requirement for notification is limited to only
the control tower, if present, expanding the requirement to notify all
ATC facilities with which the pilot interacts during the course of a
flight, if any, increases safety by informing controllers of the
experimental nature of the aircraft. This information can help ATC to
understand there may be limitations associated with the aircraft. It
will remain the responsibility of the operator to comply with those
limitations, however notification to all ATC facilities will help
controllers maintain better awareness of the aircraft to which they are
providing service. If no ATC services are utilized, there is no
additional requirement for notification.
---------------------------------------------------------------------------
\65\ For example, see Sec. Sec. 65.45, 91.123, 105.13, and
170.13.
---------------------------------------------------------------------------
The FAA also proposes to remove the current deviation authority in
Sec. 91.319(h). The proposed removal of paragraph (h) would provide
additional clarity to current LODA holders and potential LODA
applicants by maintaining one LODA framework under proposed Sec.
91.326(b). Current and potential LODA holders would be directed to
proposed Sec. 91.326(b) with the introductory language in Sec.
91.319(a). Additionally, proposed Sec. 91.326(c) would inform
currentSec. 91.319(h) LODA holders on the status of their LODAs if
this proposal is adopted as a final rule.
4. Primary Category Airworthiness Certificates (Sec. 91.325)
The primary category was created in 1992 to stimulate the
production of a new class of simpler personal use and recreational
aircraft.\66\ To achieve this intent, the primary category required a
simplified certification process though still requiring aircraft to be
built to a design standard. At that time, the FAA indicated that flight
training could be conducted in these aircraft.\67\ However, as
previously discussed, the broad language prohibiting operations
carrying persons or property for compensation or hire precludes a
flight instructor from receiving compensation while carrying a person
who is receiving flight training.
---------------------------------------------------------------------------
\66\ 57 FR 41360 (Sept. 9, 1992).
\67\ 57 FR 41360 (Sept. 9, 1992).
---------------------------------------------------------------------------
For consistency with the limited category and experimental aircraft
operating limitations, the FAA proposes to modify the language in Sec.
91.325(a) and (b) and create new paragraph (c). First, the FAA proposes
to modify the language in Sec. 91.325(a) to clarify that persons may
not operate these aircraft carrying persons or property for
compensation or hire in operations that require an air carrier or
commercial operator certificate issued under part 119; are listed in
Sec. 119.1(e); require management specifications for a fractional
ownership program issued in accordance with subpart K of part 91; or
are conducted under parts 129, 133, or 137. Second, to align the
primary category regulatory language with the original intent at the
time of its inception, the FAA proposes to modify Sec. 91.325(b) and
add new (c) to enable primary category aircraft to be used for flight
training, checking, and testing without the need to obtain deviation
authority.
Consistent with the limitation in current Sec. 91.325(b), primary
category aircraft are divided into two groups, with different
privileges afforded to each, due to differences in maintenance
requirements. The first group consists of primary category aircraft
that are maintained by the pilot-owner under an approved special
inspection and maintenance program. The second group consists of
primary category aircraft that are maintained by part 65 certificated
mechanics or authorized repair stations.\68\
---------------------------------------------------------------------------
\68\ 14 CFR part 145.
---------------------------------------------------------------------------
Primary category aircraft that are maintained by FAA certificated
mechanics or authorized repair stations fall higher on the safety
continuum than those that are pilot-owner maintained. To determine the
precise position of primary category aircraft on the safety continuum,
and thereby determine the corresponding privileges, the FAA compares
the regulatory privileges and the design, build, and maintenance
requirements to those of light-sport aircraft (LSA).
LSA do not meet 14 CFR airworthiness standards. Instead, these
aircraft must be designed, built, and maintained in accordance with
industry consensus standards. In accordance with Sec. 91.327(b), LSAs
must be maintained by FAA certificated mechanics, authorized repairmen,
or authorized repair stations. Under Sec. 91.327(a)(2), operators of
LSA are authorized to conduct flight training without a requirement to
hold a LODA.\69\ The FAA proposes to grant similar regulatory
privileges to primary category aircraft with similar certification and
maintenance requirements. To that end, the FAA proposes granting
certain primary category aircraft privileges similar to those afforded
to LSAs.
---------------------------------------------------------------------------
\69\ Notably, as a miscellaneous amendment, the FAA is also
proposing to clarify in Sec. 91.327(a)(2) that checking and testing
are also permitted.
---------------------------------------------------------------------------
For these reasons, the FAA proposes to add Sec. 91.325(c) to
permit primary category aircraft maintained by FAA certificated
mechanics or authorized repair stations to be operated for compensation
or hire for the purposes of conducting flight training, checking, and
testing without deviation authority or an exemption.
Under proposed Sec. 91.325(c), primary category aircraft which are
maintained by an FAA certificated mechanic or repair station will be
enabled to be utilized for compensated flight training, checking, and
testing without restriction, even when those services are broadly
offered to the public. In the proposed modification to Sec. 91.325(b),
operators of primary category aircraft which are maintained by a pilot-
owner under an approved program who wish to receive flight training,
checking, or testing are directed to Sec. 91.326(a), which would
specify the circumstances under which persons may conduct those
operations. That pilot-owner is prohibited from receiving compensation,
except as provided in proposed Sec. 91.326(a). This prohibition
precludes operation under a LODA. However, these pilot-owners are not
precluded from exercising the privileges of proposed Sec. 91.326(a).
For these reasons, primary category aircraft would not be eligible to
receive a LODA.
The FAA proposes that previously issued exemptions from Sec.
91.325 for the purposes of flight training, checking, or
[[Page 41208]]
testing will not be renewed or extended if the proposed rule becomes
final.
5. Light-Sport Category Special Airworthiness Certificates (Sec.
91.327)
The FAA proposes modifying Sec. 91.327(a)(2) to update the
nomenclature for consistency with the other amendments proposed in this
rulemaking. Currently, Sec. 91.327(a)(2) authorizes flight training
for compensation or hire in a light-sport category aircraft. The FAA
proposes to add that a person may conduct checking and testing, in
addition to the explicit permission for flight training.\70\ These
activities have been implicit with the language authorizing ``flight
training,'' as flight instructors are authorized to conduct certain
checks, and testing is a demonstration of skills learned during
training. These activities do not pose any additional safety risk
beyond that associated with flight training. Further, the FAA finds
value in training and testing in the aircraft that will be regularly
operated. The FAA acknowledges that individuals may already utilize
Sec. 91.327(a)(2) to conduct checking and testing for compensation or
hire. Therefore, this modification merely codifies existing implicit
privileges. The FAA does not anticipate any substantive or practical
change from the proposed addition of checking and testing in Sec.
91.327(a)(2).
---------------------------------------------------------------------------
\70\ See Sec. 61.1 definition: ``Flight training means that
training, other than ground training, received from an authorized
instructor in flight in an aircraft.'' Flight checking and testing
are not flight training but rather are proficiency evaluations that
are in most instances administered by persons other than authorized
instructors; therefore, the FAA proposes to add these to explicitly
permit these activities.
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D. Flight Training, Checking, and Testing (Sec. 91.326(a))
As discussed, currently, Sec. Sec. 91.315, 91.319, and 91.325
prohibit operating limited category, experimental, and primary category
aircraft carrying persons or property for compensation or hire.
Consistent with the outcome of the Warbird litigation, these
regulations generally prohibit flight training, checking, and testing
when compensation is provided.
In July 2021, the FAA established a streamlined process that
allowed owners and flight instructors to apply for a LODA through an
expedited process and accomplish certain flight training in
experimental aircraft.\71\ Given the language in the regulations,
aircraft owners seeking to receive flight training in their own
personal-use experimental aircraft, and flight instructors providing
that training for compensation, applied for a LODA through the
aforementioned streamlined process.\72\
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\71\ See Notification of Policy for Flight Training in Certain
Aircraft. This policy has been superseded by the 2023 NDAA.
\72\ 86 FR 96493 (Jul. 12, 2021).
---------------------------------------------------------------------------
However, as noted earlier, section 5604 of the 2023 NDAA contains a
provision that removes the LODA requirement for flight training,
testing, and checking in experimental aircraft under certain
conditions. Flight training, checking, and testing that is broadly
offered to the public, or that does not conform to the stipulations of
the 2023 NDAA will continue to require a LODA.
Therefore, the FAA proposes an exception in Sec. 91.326 to codify
the legislation for experimental aircraft and extend what is already
permissible for experimental aircraft by legislation, to other aircraft
that hold certain special airworthiness certificates. Proposed Sec.
91.326 would also more clearly outline who may receive and provide
flight training, checking, and testing without deviation authority and
to specify when deviation authority is required for these operations.
Specifically, the FAA proposes adding Sec. 91.326(a) to provide an
exception to the general limitations of operating an aircraft under
Sec. Sec. 91.315, 91.319(a)(2), and 91.325(a) for compensation or
hire. Section 91.326(a) would codify the legislation to allow
authorized instructors, aircraft owners, lessors, or lessees to
accomplish certain flight training, checking, and testing in
experimental aircraft without obtaining a LODA. The FAA also proposes
to include limited category and primary category aircraft in the
proposed rule, in addition to experimental aircraft, because current
regulations prohibit the same training, checking, and testing for
compensation in limited and primary category aircraft, and the safety
justification for enabling these activities applies equally. The
proposed provision would maintain the safety benefits of using standard
category aircraft to accomplish most flight training, checking, and
testing while acknowledging the safety benefits of permitting pilots to
perform these activities in the aircraft they own or regularly operate.
The following preamble sections discuss the conditions in the
legislation as set forth in proposed Sec. 91.326(a)(1) through (3).
1. Prohibition on Authorized Instructor Providing Both Training and
Aircraft (Sec. 91.326(a)(1))
To accomplish flight training, testing, and checking in an
experimental aircraft without a LODA, section 5604(1) of the 2023 NDAA
prohibits an authorized instructor from providing both the training and
the aircraft when there is compensation exchanged for flight training,
checking, or testing. This provision would be codified in Sec.
91.326(a)(1) and extended to flight training, testing, and checking in
limited and primary category aircraft, in addition to the experimental
aircraft addressed in the legislation. As such, any flight training,
checking, or testing given by an authorized instructor in the
authorized instructor's own aircraft must either be given without any
compensation or must be given in accordance with a LODA. The FAA notes
that compensation can be non-monetary because compensation is the
receipt of anything of value.\73\ For example, the FAA previously found
that reimbursement of expenses such as fuel, oil, transportation,
lodging, and meals, accumulation of flight time, and goodwill in the
form of expected future economic benefit could be considered
compensation.\74\
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\73\ Legal Interpretation to Joseph Kirwan (May 27, 2005)
(Compensation ``does not require a profit, a profit motive, or the
actual payment of funds'').
\74\ Legal Interpretation to John W. Harrington (Oct. 23, 1997);
Blakey v. Murray, NTSB Order No. EA-5061 (Oct. 28, 2003).
---------------------------------------------------------------------------
2. Prohibition on Broadly Offering the Aircraft as Available for Flight
Training, Checking, or Testing (Sec. 91.326(a)(2))
To accomplish flight training, testing, and checking in an
experimental aircraft without a LODA, section 5604(2) of the 2023 NDAA
prohibits any person from broadly offering the aircraft as available
for the activity. Proposed Sec. 91.326(a)(2) would codify this
provision and extend it to limited category aircraft and primary
category aircraft that are pilot-owner maintained.
Under proposed Sec. 91.326(a)(2), the persons listed in Sec.
91.326(a) who wish to receive or provide training in one of these
aircraft may do so without obtaining deviation authority, as long as
they do not broadly offer or advertise services in those aircraft to
the public. To highlight this distinction, the FAA notes that when an
owner seeks to receive training in their own aircraft, there is no need
for the owner to advertise or broadly offer any services to receive
that flight training. An aircraft owner would not need to advertise
their aircraft as available for flight training.
[[Page 41209]]
Rather, the owner would simply hire a flight instructor of their
choosing.
This prohibition on offering the aircraft to the public forecloses
flights devoid of instructional or educational value and conducted
solely for entertainment or leisure under the guise of flight training.
The FAA underscores the importance of pilots understanding and being
familiar with the particular systems, procedures, operating
characteristics, and limitations of the aircraft they will regularly
operate. Data has shown that this increased understanding and
familiarity results in fewer accidents over time.\75\
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\75\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12,
2012), available online: https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf.
---------------------------------------------------------------------------
Importantly, advertising or broadly offering an aircraft for flight
training can take many forms. In general, an entity or individual
advertises its services when it communicates to the public, or a
segment of the public, that flight training services are
indiscriminately available to any person with whom contact is made.
Currently, advertisers can promote material in more than just
traditional print sources such as magazines or newspapers. Advancing
technology allows individuals to reach consumers through electronic
communications and internet postings. Moreover, even if an individual
limits efforts to solicit flight training services to a class or
segment of the general public, it may still be considered ``broadly
offering'' its services. For example, if a person posts advertisements
only on select social media websites, or within particular groups on a
social media website or other internet platform, it may still be deemed
to ``broadly offer'' its services if the advertisements express a
willingness to provide flight training to all users within a class or
segment of those platforms. The FAA also considers establishing a
reputation of a willingness to perform a service broadly as contrary to
the prohibition in the legislation and the proposed rule.\76\ The FAA
emphasizes that any leasing scenario remains subject to the prohibition
on offering and advertising the aircraft for use. In any case, no
person may broadly offer the aircraft or profit from the use of the
aircraft and any receipt of compensation is limited to the expenses
discussed in the next section.
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\76\ AC 61-142, Sharing Aircraft Operating Expenses in
Accordance with 14 CFR 61.113(c), (2020), states,). ``Physically
holding out, without advertising, where the pilot gains a reputation
of serving all, is sufficient to constitute an offer to carry all
customers. There are many means by which physically holding out can
take place, e.g., personal solicitation and course of conduct. A
pilot's course of conduct can be sufficient to find that there has
been a holding out of service to the public because the course of
conduct can indicate a willingness to serve all who apply for
service. The actions or conduct used to develop the reputation would
be considered to be holding out.''
---------------------------------------------------------------------------
In support of this prohibition on advertising, the FAA maintains
that when aviation operations are offered broadly to the public for
compensation, the public expects, and the FAA demands, a higher level
of safety. This expectation is evidenced by the requirements that
charter operators comply with part 135, scheduled airlines comply with
part 121, and flight schools utilize standard category aircraft for
flight training unless they possess a LODA. Limited category,
experimental, and primary category aircraft do not meet the same
certification requirements as standard category aircraft. Therefore,
additional restrictions are necessary to maintain the public's
expectation of safety.
theirWhile the FAA places great value on the need for pilots to
understand and be familiar with the particular systems, procedures,
operating characteristics and limitations of the aircraft they will
operate, the FAA must also ensure public safety for services broadly
offered. Paragraph (a)(2) seeks to balance these interests by imposing
restrictions for flight training only outside the scope of personal
use. Beyond this, flight training offered to the public is broadly
available in standard category aircraft or, if deemed necessary, in a
limited category or experimental aircraft in accordance with a LODA
under proposed Sec. 91.326(b), discussed later in this preamble.
3. Compensation for Use of the Aircraft (Sec. 91.326(a)(3))
To accomplish flight training, testing, and checking in an
experimental aircraft without a LODA, section 5604(3) of the 2023 NDAA
limits the type of compensation that may be received for the use of the
aircraft. Proposed Sec. 91.326(b) would codify this provision and
extend it to limited category, experimental, or primary category
aircraft. Under the proposed rule (and consistent with the legislative
provision for experimental aircraft), no person would be permitted to
receive compensation for use of the aircraft for a specific flight
during which flight training, checking, or testing was accomplished,
other than expenses for owning, operating, and maintaining the
aircraft. Compensation for the use of the aircraft that yields a profit
for the operator is prohibited under the legislation and the proposed
rule. The FAA makes this distinction to foreclose the use of aircraft
holding certain special airworthiness certificates for profit without
the safety mitigations provided by a LODA.
The FAA recognizes that operating an aircraft naturally incurs
expenses, such as ongoing maintenance of the aircraft, fuel used during
a flight, and other expenses associated with aircraft ownership. The
FAA notes that the legislation ties the compensation to the costs
associated with the specific flight.
When money is exchanged for transportation, the public expects, and
the FAA demands, a higher level of safety for the flying public.\77\
Accordingly, operations for compensation involving aircraft holding
special airworthiness certificates require additional regulations to
ensure public safety. The use of standard category aircraft remains
broadly available for those members of the public seeking to receive
flight training.
---------------------------------------------------------------------------
\77\ See legal interpretation for General Aviation Manufacturers
Association, addressed to Mr. Bunce, dated Nov. 19, 2008.
---------------------------------------------------------------------------
Consistent with these principles, a person may operate for the
purpose of flight training in a limited category, experimental, or
primary category aircraft without a LODA only when no compensation is
exchanged for the use of the aircraft, other than expenses for owning,
operating, and maintaining the aircraft.\78\ Operations involving
compensation for the use of the aircraft that yields a profit will
continue to require a LODA.
---------------------------------------------------------------------------
\78\ See proposed Sec. 91.326(a)(1) which specifies that the
authorized instructor cannot provide both the training and the
aircraft without a LODA.
---------------------------------------------------------------------------
E. LODA Framework (Sec. 91.326(b) and (c))
While the FAA maintains that, in general, limited category,
experimental, and primary category aircraft should not be broadly
offered for flight training, checking, and testing, the FAA finds that
there is certain specialized training that may be effectively and
safely accomplished in these aircraft under certain conditions.
Currently, persons seeking to offer this type of flight training for
compensation or hire in limited and primary category aircraft are
required to obtain a grant of exemption.\79\ By contrast, persons
seeking to offer this type of flight training in experimental aircraft
may apply for a LODA under Sec. 91.319(h).
---------------------------------------------------------------------------
\79\ See Federal Register Docket FAA-2013-0506 and FAA-2017-0942
for examples of grants of exemption from Sec. 91.315 for the
purpose of flight training in limited category aircraft issued to
Delaware Aviation Museum Foundation and Stallion 51 Corporation,
respectively.
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In Sec. 91.326(b), the FAA proposes that any person who wants to
conduct flight
[[Page 41210]]
training, checking, or testing in limited category and experimental
aircraft \80\ outside the restrictions and limitations of proposed
Sec. 91.326(a) may apply for deviation authority. Flight training,
checking, or testing operations that would require a LODA include, but
are not limited to, receiving compensation for flight training while
also receiving compensation for the use of the aircraft and/or
advertising or broadly offering the use of an aircraft for flight
training, checking, or testing. For example, under the proposed
framework, a person who owns an aircraft holding an experimental or
limited category special airworthiness certificate, such as a North
American B-25 or Curtiss P-40, would be required to hold a LODA to
offer transition or proficiency training to the public.
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\80\ The FAA notes that certain primary category aircraft would
be excluded from Sec. 91.326(c) because proposed Sec. 91.325(c)
would make a LODA unnecessary, as that rule would explicitly enable
flight training, checking, and testing without the need for
deviation authority.
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The FAA first introduced deviation authority in a 2004 final rule
\81\ to allow for training that was, at that time, only available
through exemption. Pursuant to Sec. 91.319(a)(2), the 2004 final rule
prohibited carrying persons or property in experimental aircraft for
compensation or hire. As flight training is considered to be carrying
persons for compensation or hire, the deviation authority offered in
the 2004 final rule allowed for issuance of a LODA in lieu of an
exemption for flight training in experimental aircraft.
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\81\ Certification of Aircraft and Airmen for the Operation of
Light-Sport Aircraft, 69 FR 44771 (Jul. 27, 2004). In the final
rule, the FAA amended Sec. 91.319 by adding Sec. 91.319(h) to
allow deviation authority from the provisions of Sec. 91.319(a) for
the purpose of conducting flight training.
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NTSB Safety Recommendation A-12-035 advises the FAA to develop and
publish an advisory circular, or similar guidance, for the issuance of
a Letter of Deviation Authority to conduct flight instruction in an
experimental aircraft, to include sample documentation and sample
training materials.\82\ This recommendation was in response to the
NTSB's finding that providing pilots of experimental amateur-built
aircraft with better access to training would enhance flight safety. In
response to NTSB Safety Recommendation A-12-035, the FAA is proposing
LODA framework to provide the FAA with an opportunity to evaluate the
operation and impose any additional pilot qualifications and
maintenance requirements necessary for safety when offering services to
the public. Although Sec. 91.319(h) authorizes the FAA to issue
deviation authority for the purpose of flight training in experimental
aircraft, the FAA also recognizes that, in certain circumstances, there
is value in flight training in limited category aircraft. For that
reason, the FAA is proposing to remove the LODA provision in Sec.
91.319(h) and incorporate, expand, and clarify the LODA framework in
proposed Sec. 91.326(b) to apply to both limited category and
experimental aircraft. The FAA has drafted an advisory circular
describing the LODA application process and identifying the factors
that the FAA will consider in determining whether a LODA should be
issued. The advisory circular is available in the docket for this
rulemaking for public comment concurrently with publication of this
NPRM. In a 2012 safety recommendation report referencing
recommendations A-12-28 through -39, the NTSB concluded that
experimental amateur-built aircraft accidents involving loss of
aircraft control could be reduced if more pilots received transition
training.\83\ Since promulgation of the 2004 final rule, FAA and
industry research indicates that the training conducted under Sec.
91.319(h) deviation authority continues to reduce accidents in
experimental aircraft when conducted in accordance with the conditions
and limitations of that deviation authority. Therefore, expanding this
deviation authority to permit some flight training, checking, and
testing in limited category aircraft is also likely to increase safety
and reduce accidents in those aircraft because it would provide a
greater incentive to operators of limited category aircraft to seek out
and complete such training.
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\82\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12,
2012), available online: https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf.
\83\ NTSB Safety Recommendation, A-12-28 through -39 (Jul. 12,
2012), available online: https://www.ntsb.gov/safety/safety-recs/recletters/A-12-028-039.pdf.
---------------------------------------------------------------------------
The FAA anticipates that using a single rule to cover deviation
authority for limited category and experimental aircraft will promote a
streamlined process and relieve the burden on the public to apply for
an exemption for limited category aircraft. Additionally, incorporating
the LODA framework from Sec. 91.319 into proposed Sec. 91.326(b)
would make the application process consistent for limited category and
experimental aircraft. The proposed Sec. 91.326(b) framework would
apply to owners, operators, and training providers who broadly offer,
or receive compensation for, the use of certain aircraft for
specialized flight training, checking, and testing.
Flight training, checking, or testing in limited category aircraft
are currently only available by grant of exemption from the
regulations. The FAA finds this burdensome and labor intensive not only
for the agency but also the persons offering this specialized training.
Since the 2004 final rule, Sec. 91.319 has provided this training
through deviation authority, while maintaining an equivalent level of
safety. As a result, the FAA concludes that implementing the LODA
framework on a broader scale will similarly support public safety,
reduce administrative costs and burdens, and increase operator
efficiency.
In further support of codifying a consolidated LODA framework in
Sec. 91.326(b), the FAA emphasizes the safe and successful use of
LODAs under Sec. 91.319. Under Sec. 91.319(h), the FAA has
historically granted LODAs for specialized training in experimental
aircraft that could not otherwise be obtained in aircraft holding
standard airworthiness certificates, e.g., model-specific training and
jet upset recovery training. These LODAs have been issued to operators
who demonstrate that their flight instructors, trainees, and aircraft
meet specific additional requirements above those generally required to
operate experimental aircraft. As currently used under Sec. 91.319,
LODAs increase public safety because they support minimum pilot
qualifications, structured training curricula, and additional aircraft
maintenance inspection requirements. Issuance of a LODA enables the FAA
to provide oversight of training and maintenance of the aircraft and
place certain restrictions on those who participate. The FAA finds it
necessary to place these restrictions within the LODA to ensure safety
to the public paying for training in these aircraft who may not be
familiar with aircraft holding special airworthiness certificates.
Evaluation of the training program ensures a structured and complete
training syllabus. The operator and participant must comply with
certain conditions and limitations issued with a LODA. Each operator
must use aircraft-specific flight and ground training curricula. The
operator must keep a record of the training given for a period of three
years. Persons providing training, checking, and testing must be
authorized under part 61 or part 183, as applicable, for the specific
operation and must be qualified in the aircraft to be used. These
parameters and oversight requirements ensure the safety of the
[[Page 41211]]
public during these activities and operations.
1. Granting, Amending, and Cancelling a LODA (Sec. 91.326(b)(1) and
(2))
The FAA proposes to add Sec. 91.326(b)(1) and (2) to prescribe the
manner in which the FAA may issue, cancel, and amend LODAs.
Particularly, Sec. 91.326(b)(1) clarifies that operators would be
granted relief from Sec. Sec. 91.315 or 91.319(a) through a LODA. In
offering this deviation authority in the form of a letter, the FAA
intends to model the proposed deviation authority after the current
deviation authority provided in Sec. 91.319(h) that would be
superseded by proposed Sec. 91.326(b) if adopted.
In addition, the FAA proposes to add Sec. 91.326(b)(2) to enable
the FAA to cancel or amend a LODA if it determines that the deviation
holder has failed to comply with the conditions and limitations or at
any time if the Administrator determines that the deviation is no
longer necessary or in the interest of safety. For example, the FAA
would be able to cancel a LODA for non-compliance with the terms and
conditions of the LODA. Likewise, a LODA could be cancelled when a
significant number of identical aircraft holding standard airworthiness
certificates become available. Once an aircraft is certificated in the
standard category and significant numbers are available, the need for
the LODA may be unnecessary.
Under proposed Sec. 91.326(b)(2), a LODA could also be amended for
safety concerns. For example, the FAA may, when necessary, revise the
conditions and limitations or require corrective action to adequately
mitigate safety concerns and risk factors as they become known. In
conclusion, proposed Sec. 91.326(b)(2) affords the FAA flexibility to
modify or cancel the LODA, as needed, based on changing circumstances.
2. Requirements for a LODA (Sec. 91.326(b)(3))
In Sec. 91.326(b)(3), the FAA proposes to codify a timeline for
operators to submit LODA applications, the form and manner requirements
for submission, and the information that the applicant should provide.
As proposed, an applicant must submit the request for a LODA in a form
and manner acceptable to the Administrator. As set forth in the draft
LODA AC, Application and Issuance Process for a Letter of Deviation
Authority Issued in Accordance with Part 91, Sec. 91.326, the form and
manner of an application submission may include email, fax, regular
mail, or in-person delivery. Consistent with the current application
process under Sec. 91.319(h), applicants may apply for a LODA by
contacting the Flight Standards District Office (FSDO) nearest their
primary place of business. FSDO personnel can provide the applicant
with specific instructions on how to present the LODA request to that
FSDO and provide the applicant with reference material and supporting
information.\84\ A draft of the advisory circular has been published
for comment concurrently with this NPRM and is available in the
rulemaking docket.
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\84\ FAA Order 8900.1, Vol. 3, Chpt. 11, Sec. 1, Use of Aircraft
Issued Experimental Certificates in Flight Training for Compensation
or Hire, provides information about the issuance of a LODA for
conducting flight training under Sec. 91.319(h). Additionally, the
FAA is producing a new advisory circular that would provide
information, guidance, and recommendations on the application and
issuance process for obtaining a LODA to operate a limited category,
primary category, or experimental aircraft for compensation or hire
while providing flight training, checking, and testing.
---------------------------------------------------------------------------
The proposed regulation would also require that the application
package be submitted at least 60 days before the date of intended
operations. The 60-day requirement is proposed to allow the
Administrator adequate time to review stakeholder applications and
supporting documents. The current Sec. 91.319(h) LODA process has
demonstrated that this is a reasonable time allowance. The FAA has
determined a need for a 60-day review period to ensure the
effectiveness of the LODA and the proper conditions specified within
each LODA. The FAA notes that not all LODA training syllabi or
justifications will be identical. Therefore, the 60-day review period
is intended to provide sufficient time to assess each unique
application on a case-by-case basis.\85\
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\85\ For those operators who currently hold an exemption or a
LODA, section IV(E)(6) of this NPRM explains how operators would
transition to a LODA issued under the proposed rule.
---------------------------------------------------------------------------
Proposed Sec. 91.326(b)(3)(i) through (ix) enumerate the items an
applicant would be required to include in their request for deviation
authority. The FAA proposes to require this information from the
applicant to evaluate the application to determine whether granting the
request for a LODA would be in the interest of safety. Information
required by this proposed section includes, for example, in Sec.
91.326(b)(3)(ii), the name and contact information of the individual
with ultimate responsibility for operations authorized under the LODA.
Likewise, applicants must include a detailed training program
demonstrating that the proposed activities would meet intended training
objectives. The training program description may include a training
overview, a syllabus, minimum instructor qualifications, prerequisites
for persons receiving training, a description of teaching aids, special
equipment, simulators, and flight training devices, as applicable, and
a method for recordkeeping.\86\ The FAA proposes to request this
training program information from applicants to ensure that, if
granted, the requested LODA would solely be used for appropriate,
limited training purposes, which would in turn support safe operation
of the aircraft.
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\86\ Additional information describing the items applicants are
encouraged to submit for a complete LODA application is provided in
the LODA advisory circular, which has been placed in the docket for
this rulemaking.
---------------------------------------------------------------------------
Additionally, the FAA proposes Sec. 91.326(b)(3)(viii), which
specifies additional information required to be submitted by LODA
applicants when formation and aerobatic training, or training leading
to the issuance of an endorsement is requested. The information
required to be submitted for this purpose would describe a process by
which a LODA holder will identify whether a trainee has a specific need
for that training. The FAA is proposing to require LODA applicants to
provide additional reasoning for conducting formation or aerobatic
training, or training leading to the issuance of an endorsement because
those types of training, generally, can be conducted in standard
category aircraft. Because the FAA encourages training to be conducted
in the aircraft which a trainee would most often operate, the
additional explanation would enable the agency to determine whether
granting the applicant's request for a LODA is necessary in the
interest of safety. Persons with a specific need include, for example,
aircraft builders, purchasers, owners, test pilots, and qualified
additional pilots under AC 90-116. The aircraft used for training must
have similar handling qualities and flight characteristics to the
aircraft being built or flown by the trainee to be eligible. These
persons will have regular access to substantially similar aircraft and
would benefit from the additional training, as training can expand
pilot skills that are transferrable to the aircraft they will regularly
fly. Persons without a specific need can receive this training in an
aircraft holding a standard airworthiness certificate.
3. Limitations in the LODA (Sec. 91.326(b)(4))
Currently, under Sec. 91.319(i), the Administrator may prescribe
additional limitations that the Administrator finds
[[Page 41212]]
necessary for aircraft holding experimental airworthiness certificates.
The conditions and limitations the FAA places in LODAs under the
discretion provided in Sec. 91.319(i) allow the FAA to authorize
appropriate training activity not otherwise permitted by regulation
while ensuring the safety of the NAS and persons and property on the
ground. Historically, the FAA has included a list of general conditions
and limitations related to aircraft inspection and maintenance
requirements, airman qualifications, operating limitations, and
training requirements in all LODAs authorizing flight training. For
example, current LODAs contain a limitation that requires the operator
to keep a record of the training given for a period of three years.
This condition ensures that the FAA may conduct appropriate safety
oversight of operations conducted under the LODA. Likewise, given the
unique risks posed by aircraft with ejection seats, LODAs have
contained a requirement that trainees must complete an acceptable
course of ejection seat training before training in an aircraft with an
ejection seat. The FAA also includes conditions and limitations for
trainees and flight instructors with regard to minimum qualifications
such as certificate, ratings, and endorsements even when the trainee or
flight instructor is not acting as PIC of the flight. LODA holders must
comply with the conditions and limitations imposed under Sec. 91.319
while conducting activity under the LODA unless the FAA provides relief
from the conditions and limitations in the LODA.
The FAA proposes to add a provision similar to Sec. 91.319(i) in
proposed Sec. 91.326(b)(4) to allow the Administrator to continue to
prescribe additional conditions and limitations in LODAs for
experimental aircraft and extend that allowance to LODAs issued for
training, testing, and checking in limited category aircraft when
necessary for safety. The FAA would continue to impose these safety
conditions and limitations on future training, checking, and testing
conducted under LODAs issued under proposed Sec. 91.326(b). The FAA
reiterates that, when training, checking, and testing can be
successfully accomplished in a standard category aircraft, a LODA to
conduct such training in aircraft with special airworthiness
certificates is not appropriate. Where training, checking, and testing
is allowed in experimental and limited category aircraft, the FAA must
have a means to ensure that safety is maintained given the nature of
the aircraft used. The full list of conditions and limitations is
further described in the LODA Advisory Circular (AC), Table 4,
``Additional Limitations,'' which has been placed in the docket for
this rulemaking. The FAA is proposing slight modifications to the
standard conditions and limitations imposed under Sec. 91.319(i) and
specifically requests comment on all of the conditions and limitations
set forth in Table 4 of the AC.
4. Persons Permitted on Board During Operations Under a LODA (Sec.
91.326(b)(5))
The FAA proposes to add Sec. 91.326(b)(5) to limit the persons
permitted to be on board an aircraft during operations under a LODA.
The airworthiness certification standards for aircraft that hold
special airworthiness certificates do not rise to the level of
demonstrated safety and reliability of those holding standard
airworthiness certificates. Besides the instructor, designated examiner
and the person receiving the training, checking, or testing, only
persons deemed essential to the safe operation of the aircraft would be
permitted to be carried on board the aircraft. Notably, a pilot who
holds a temporary letter of authorization (LOA) to act as PIC in an
experimental aircraft who also holds a flight instructor certificate is
generally not authorized to conduct flight training under a LODA.
Temporary LOAs are issued to a pilot to act as PIC in unique, highly
specific circumstances, such as in the case of a first flight of a new
or first-of-a-kind aircraft. Temporary LOAs are not issued to flight
instructors for the purpose of flight training under a LODA.
In addition to authorized instructors, designated examiners, and
those receiving the flight training or being checked or tested, the FAA
proposes to permit persons essential for the safe operation of the
aircraft to be on board during operations under a LODA. The FAA notes
that, to be conducted effectively, flight training, checking, and
testing operations do not require persons besides authorized flight
instructors, designated examiners, those receiving flight training or
being checked or tested, and other persons essential for the safe
operation of the aircraft to be on board. The addition of persons not
directly related to flight training, testing, checking, or operation of
the aircraft may create unnecessary distraction.
However, some aircraft holding special airworthiness certificates
may have unique characteristics or design features that necessitate
additional persons for safety. For example, operators of certain
vintage, multi-engine aircraft, like the North American B-25 or Boeing
B-17, choose to utilize persons to perform certain functions related to
aircraft safety. These functions may include observing engines to
monitor for smoke/malfunction, observing engine instruments to monitor
for anomalies, or operation of mechanical systems that may not be in
easy reach of the flightcrew. Importantly, the determination of whether
a person is essential for safety would be determined based on several
factors. The FAA would consider whether these persons are trained and
designated by the operator for these functions and are not members of
the general public. The FAA would be unlikely to consider persons
unaffiliated with the operator and designated to perform essential
functions ``on the spot'' to be genuinely performing a duty essential
to safety. This precludes an operator from assigning ``essential
functions'' to persons who do not normally participate in the operation
of the aircraft. For example, a non-pilot friend in the back seat given
a nominal task or observing training could be construed as a ride for
hire which is not contemplated by the proposed regulation. The FAA will
also consider whether the operator routinely fills a particular
position to determine if it is essential. For example, if an operator
routinely utilizes a crew complement of two pilots, but one day decides
to put a third person on board to ``monitor engines'', the
Administrator would likely not consider that additional person to be
essential. However, if an operator routinely utilizes a trained crew
chief who is present because there is emergency mechanical equipment
beyond the reach of the flightcrew, like an emergency gear extension
crank, the Administrator may consider that person to be essential for
safety. Likewise, additional person(s) would not be allowed to be
present solely to receive transportation or for recreational purposes.
The specification of the persons permitted to be carried on board
the aircraft in the proposed Sec. 91.326(b)(5) is meant to provide
clarity to those applying for a LODA under Sec. 91.326. In this
regard, the list of recognized persons is exclusive. Outside of the
personnel delineated in the proposed Sec. 91.326(b)(5), the FAA does
not contemplate the additional carriage of persons on board the
aircraft even with the issuance of a LODA. Such activity, therefore,
would remain prohibited under this proposed rule.
[[Page 41213]]
5. Types of Training (Sec. 91.326(b)(6))
The FAA proposes to limit the types of training, testing, and
checking that may be authorized under the proposed deviation authority.
Currently, LODAs are issued for certain specialized types of
experimental aircraft training. Aircraft holding special airworthiness
certificates are not designed, built, or maintained to the same
standard as those holding standard airworthiness certificates.
Therefore, the FAA proposes to limit the availability of the use of
experimental and limited category aircraft in flight training offered
to the public by limiting the types of training available.
The types of training currently available under a LODA are limited
in nature and generally contemplate only specialized training that
cannot be accomplished in aircraft holding standard airworthiness
certificates. For example, private pilot certification training and
testing is not available for LODA training, as this can be accomplished
in aircraft holding standard airworthiness certificates. Conversely,
jet upset recovery training is available for LODA training because
there are no standard category jet aircraft with limitations that allow
for aerobatic flight.
Except in specific circumstances, LODAs should not be issued to
permit flight training toward the issuance of a pilot certificate,
rating, or operating privilege that can be obtained through training
and testing in an aircraft with a standard category airworthiness
certificate. For example, syllabi developed solely for aerobatic
training or flight training that leads to the issuance of an
endorsement (e.g., tailwheel or pressurized aircraft, or a complex or
high performance airplane) would not be considered appropriate for
issuance of a LODA. In addition, no demonstration or discovery flights
would be authorized. Demonstration flights, discovery flights, sales
demonstrations, introductory flights, experiential flights, and other
flights not related to the flight training syllabus are not authorized
under a LODA.
On the contrary, a LODA may be requested to facilitate specialized
training necessary to gain skills and abilities to safely operate
specific aircraft. In addition, a LODA may be used to receive training
that cannot otherwise be conducted in aircraft holding a standard
airworthiness certificate. For example, an applicant may utilize a LODA
to participate in model-specific transition training. Similarly, an
applicant may request a LODA to conduct training and testing that leads
to the issuance of a specific experimental aircraft authorization,
limited category type rating, rotorcraft gyroplane training at all
levels, a sport pilot certificate, or sport pilot operating privilege.
The FAA includes a description of each type of training
contemplated under this section in the draft LODA AC placed in the
docket to this rulemaking. The FAA welcomes public comment on the types
of training authorized under a LODA and the accompanying safety
rationale in response to publication of the draft LODA AC.
The FAA notes that LODAs are intended to bolster specialized
training in aircraft holding certain special airworthiness certificates
that cannot otherwise be accomplished in aircraft holding standard
airworthiness certificates. In support of this intent, as noted, LODAs
will not be issued exclusively to permit aerobatic or formation
training or to permit training for the sole purpose of issuance of an
endorsement. However, there are certain circumstances which may warrant
aerobatic training, formation training, or issuance of an endorsement
as part of a broader training program. This type of training will only
be available to trainees who have a specific need to receive such
training. The AC published concurrently with this NPRM provides greater
detail on when a person may be considered to have a ``specific need''
to receive this type of training, and the other corresponding
requirements for airmen certification and flight characteristics.
6. Status of Current LODAs (Sec. 91.326(c))
The FAA proposes to add Sec. 91.326(c) to provide clarity to those
who hold a LODA issued under Sec. 91.319(h) at the time of publication
of the final rule if the proposal is adopted. In Sec. 91.326(c)(1) and
(2), the FAA proposes that any person who holds a LODA which is still
active as of the date of the final rule (should this proposal be
adopted) would be permitted to continue to operate under that LODA
subject to its terms and conditions for 24 months after the effective
date of the final rule. This proposed language would ensure that LODA
holders continue to comply with the conditions and limitations under
which their LODA was issued between the publication of a final rule and
the termination of their LODAs granted under Sec. 91.319(h). The FAA
proposes to permit Sec. 91.319(h) LODA holders to continue operating
under those LODAs for 24 months after the effective date of a final
rule because it would ensure those LODA holders have adequate time to
apply for a new LODA under the Sec. 91.326(b) framework. In Sec.
91.326(c)(3), the FAA proposes to add that any existing LODAs issued
under Sec. 91.319(h) may be cancelled or amended at any time, as is
currently provided for under Sec. 91.319(h). Permitting those existing
LODAs to be cancelled or amended at any time would enable the FAA to
ensure the continuing safety of operations permitted under the existing
LODAs. Finally, in Sec. 91.326(c)(4), the FAA proposes to terminate
all preexisting LODAs issued under Sec. 91.319(h) 24 months after the
effective date of a final rule. Current exemption holders would instead
apply for a LODA under proposed Sec. 91.326(b). Some operators have
been granted exemptions in limited category aircraft for the purpose of
offering flight training to the public. Except for exemptions issued
for Living History Flight Experiences (LHFE), exemptions from Sec.
91.315 issued for the purpose of flight training in limited category
aircraft will not be renewed or extended. LHFE exemptions are granted
for the purpose of providing flight experiences in certain
historically-significant aircraft. These LHFE exemptions will be
unaffected by this proposed rulemaking.
In anticipation of the initial volume of applications, the FAA
encourages applicants to submit their LODA applications at least 180
days prior to the 24-month expiration date. Although present LODA
holders are not guaranteed deviation authority under this new
provision, this 180 days would help current LODA holders ensure that
there is no gap in LODA coverage between their existing LODA
terminating and their new LODA under Sec. 91.326(b), should it be
issued. In addition, the FAA notes that currently, LODAs are no longer
required for owners and operators of experimental aircraft who comply
with section 5604 of the 2023 NDAA (proposed to be codified in Sec.
91.326(a)).
V. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Order 12866 and Executive Order 13563, as amended by Executive Order
14094 (``Modernizing Regulatory Review''), direct that each Federal
agency shall propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify the
costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354)
requires agencies to analyze the economic impact of regulatory changes
[[Page 41214]]
on small entities. Third, the Trade Agreements Act (Pub. L. 96-39)
prohibits agencies from setting standards that create unnecessary
obstacles to the foreign commerce of the United States. Fourth, the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits and other
effects of proposed or final rules that include a Federal mandate that
may result in the expenditure by State, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million or more
(adjusted annually for inflation) in any one year. The current
threshold after adjustment for inflation is $165 million, using the
most current (2021) Implicit Price Deflator for the Gross Domestic
Product.
In conducting these analyses, the FAA has determined that this
rule: (1) will result in benefits that justify costs; (2) is not a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866; (3) is not ``significant'' as defined in DOT's
Regulatory Policy and Procedures; (4) will not have a significant
economic impact on a substantial number of small entities; (5) will not
create unnecessary obstacles to the foreign commerce of the United
States; and (6) will not impose an unfunded mandate on State, local, or
tribal governments, or on the private sector.
A. Regulatory Evaluation
1. Summary
The FAA analyzed the costs and benefits for the provisions related
to PAO and the provisions related to training, testing and checking in
certain aircraft with special airworthiness certificates separately.
The provisions related to PAO impose no new costs and the FAA expects
the proposal will reduce the costs for pilots conducting PAO to
maintain their civil certificates and ratings.\87\ The provisions
related to training, testing and checking impose approximately $100,000
in total one-time costs (undiscounted) over a period of two years.
Roughly half of these costs stem from the requirement for the current
approximately 180 LODA holders who broadly offer certain aircraft with
special airworthiness certificates for training to reapply within two
years of the effective date of a final rule, if this proposed rule is
adopted. The other half of the costs include the time costs to the FAA
which must process these applications over the first two years.
However, the FAA expects the cost savings from the streamlined
regulatory framework, and the safety benefits from greater access to
specialized training in aircraft with certain special airworthiness
certificates, to exceed the initial costs. Overall, the FAA concluded
that this proposal would maintain and promote safety with minimal
impact on cost.
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\87\ The FAA does not maintain counts of pilots who fly PAO for
federal, state and local governments and there is insufficient data
for the FAA to estimate the number of pilots affected by the PAO
proposal. See ``How to Become a Government Pilot'' in Flying
Magazine by James Wynbrandt, Dec.13, 2017. Available at: https://www.flyingmag.com/how-to-become-government-pilot/. Last accessed
Jul. 22, 2022.
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2. Logging Flight Time in Public Aircraft Operations
The FAA requires pilots to log flight time used to meet training,
aeronautical experience and recent flight experience requirements for
civil pilot certificates and ratings.\88\ Currently, logging of flight
time in aircraft used for PAO is limited to official law enforcement
flights. The FAA proposes to extend logging pilot flight time in PAO
not only to forestry and fire protection services, as directed by
section 517 of the FAA Reauthorization Act of 2018, but also to any PAO
including operations involving national defense, intelligence missions,
search and rescue, aeronautical research and biological or geological
resource management. The FAA expects the rule to lower the cost for
pilots conducting PAO to maintain their civil certificates and ratings.
Although pilots conduct PAO outside of FAA civil certification and
certain safety oversight regulations, each government entity may
maintain its own certification system and requirements for pilots. For
many government entities, this includes adopting the same standards as
those codified in 14 CFR to ensure safety and comply with liability
insurance requirements.\89\ For example, the California Department of
Forestry and Fire Protection (CAL FIRE), a state agency that is the
largest firefighting air force in the world \90\ with over 50 aircraft,
requires its fixed-wing and helicopter pilots to maintain FAA
commercial pilot certificates, various FAA ratings, and recent flight
experience requirements.\91\ Additionally, the CAL FIRE 8300 manual
contains specific references and obligations for compliance with FAA
regulatory requirements applicable to civil operations.\92\
---------------------------------------------------------------------------
\88\ 14 CFR 61.51(a) does not require pilots to log all flight
time. Pilots are only required to record aeronautical experience
used to obtain civil certificates and ratings and meet recent flight
experience requirements.
\89\ Wynbrandt, James W. ``How to Become an Airborne Law
Enforcement Pilot'' in Flying, Dec. 18, 2017. Accessed Feb. 8, 2022,
https://www.flyingmag.com/how-to-become-an-airborne-law-enforcement-
pilot/
#:~:text=Most%20state%20and%20municipal%20ALE,aren't%20hard%20to%20fi
nd.
\90\ Joiner, Stephen. ``The Pilots Who Fight California's
Wildfires'' Smithsonian, August 2019. Accessed Feb. 15, 2022,
https://www.smithsonianmag.com/air-space-magazine/wildfire-wars-180972602/.
\91\ CAL Fire Petition for Exemption 14 CFR 61.51(j), Nov. 23,
2020.
\92\ CAL Fire Petition for Exemption 14 CFR 61.51(j), Nov. 23,
2020.
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Allowing pilots to credit their PAO flight time would enable PAO
pilots to meet FAA flight experience and recency requirements in the
course of their duties, thereby avoiding costs required to accrue
flight time and recent experience in civil aircraft operations. These
avoided costs could include avoided travel time, flight time, fuel
costs, and costs for use of a civil aircraft. Additionally, the FAA
finds that recording PAO flight time will not impose additional costs
because PAO pilots already record their flight time to meet the safety
and insurance requirements of their employers. For this reason, the FAA
proposes to allow pilots to retroactively credit PAO flight time. The
FAA concludes that the proposal to allow pilots to record and credit
PAO flight time will not adversely affect safety, impose any additional
costs, or pose novel policy or legal issues.
3. Flight Training, Testing, or Checking for Compensation in Certain
Aircraft With Special Airworthiness Certificates
Consistent with the 2023 NDAA, the proposal allows owners or
operators of experimental aircraft to receive training, testing, and
checking in their aircraft without a LODA, in certain circumstances.
The proposed rule would extend the provision to training, testing, and
checking in limited category and primary category aircraft.
Additionally, the proposal moves the current LODA process for
experimental aircraft in Sec. 91.319(h) to proposed Sec. 91.326(b)
and extends the LODA process to include limited category and
experimental light sport aircraft. The goal is to promote safety by
making it simpler for pilots to receive elective or specialized
training relevant to aircraft they regularly fly, while also ensuring
effective training and maintenance standards in certain aircraft with
special airworthiness certificates broadly offered for training,
checking or testing, for compensation.
Overall, the FAA expects the training proposal to increase safety,
clarify and simplify regulatory requirements, reduce compliance costs
for operators, administrative costs for the FAA and
[[Page 41215]]
time and travel costs for pilots seeking elective or specialized
training, testing, or checking. The FAA evaluated costs and benefits
against the baseline established by the ``Notification of Policy for
Flight Training in Certain Aircraft,'' published in the Federal
Register July 12, 2021,\93\ as well as the recently passed 2023 NDAA,
and concluded the cost impacts are modest and the proposal poses no
novel legal or policy issues.
---------------------------------------------------------------------------
\93\ 86 FR 36493 (Jul. 12, 2021), ``Notification of Policy for
Flight Training in Certain Aircraft.'' The FAA published this policy
statement to establish simplified procedures for owners and
operators of certain aircraft with special airworthiness
certificates to obtain prior approval from the FAA for training in
their own aircraft. The policy clarification also reaffirmed the
need for certain operators to obtain prior approval from the FAA in
the form of a LODA or exemption.
---------------------------------------------------------------------------
4. Cost Savings
The FAA expects the proposal to generate cost-savings for owners or
operators of certain aircraft with special airworthiness certificates
who seek specialized training, testing, or checking in aircraft they
own or regularly operate. Under current rules, owners or operators of
limited and primary category aircraft must petition the FAA for an
exemption.\94\ The recently passed 2023 NDAA eliminated the LODA
requirement for owners and operators of experimental aircraft receiving
training in their own aircraft. The proposal in Sec. 91.326(a) would
codify the legislation with regard to LODAs for experimental aircraft
and eliminate the LODA requirement for owners and operators who receive
training, testing, or checking in their aircraft and pay compensation
for instruction. The elimination of the exemption requirements would
result in time savings for owners and operators who would no longer
need to apply for an exemption. Likewise, the proposal would reduce the
administrative costs at the FAA associated with evaluating and tracking
exemption petitions.
---------------------------------------------------------------------------
\94\ Under 14 CFR 11.5, a petition for exemption is a request
from an individual or entity requesting relief from a current
regulation.
---------------------------------------------------------------------------
5. Costs and Cost Savings for Operations Broadly Offered or Advertised
Under the proposed Sec. 91.326(b), if an operator of experimental
or limited category aircraft broadly offers or advertises flight
training, checking, and testing in these aircraft, the operator must
obtain prior approval from the FAA in the form of a LODA. To obtain a
LODA, the operator must submit an application to the FAA that includes
an aircraft-specific training program at least 60 days in advance of
training operations. Under the proposed change to Sec. 91.325,
operators of certain primary category aircraft will not require a LODA
and will no longer need to petition for an exemption to conduct
training, testing, or checking.
Importantly, the proposed LODA requirements under Sec. 91.326(b)
are similar to the current LODA requirements under Sec. 91.319(h) for
operators of certain experimental aircraft who broadly offer their
aircraft for training, testing, or checking. The FAA also proposes to
terminate current training LODAs within two years of the effective date
of a final rule. However, to ensure that all operations in which an
aircraft with a special airworthiness certificate is ``held out'' for
training, testing, or checking comply with the proposed requirements,
holders of current exemptions and LODAs permitting these training
operations will need to apply for a LODA under the proposed Sec.
91.326(b). The FAA proposes that these exemption and LODA holders
reapply within two years of the effective date of the final rule.
The FAA finds that the cost impacts of the LODA requirement for
training operations in experimental and limited category aircraft
``held out'' broadly for training will be small relative to the current
regulatory baseline. The costs and cost savings will vary across groups
affected by the regulation. Therefore, the FAA evaluated the cost
impacts separately for each of the identifiable interest groups
expected to realize costs or savings.
Experimental aircraft operators who currently hold LODAs under
Sec. 91.319(h) to offer their aircraft broadly for training will incur
the cost of reapplying for their LODA within two years of the effective
date of a final rule. The FAA estimates the reapplication requirement
would generate approximately $100,000 in total undiscounted costs
within the first two years following the effective date of a final
rule. This estimate includes the time costs to the approximately 180
current LODA holders \95\ who reapply and the FAA which must process
these applications.96 97 98
---------------------------------------------------------------------------
\95\ Estimate of current LODA holders under Sec. 91.319(h)
obtained from FAA Aviation Safety (AVS) line of business. AVS
currently tracks active LODAs in FAA's Web-based Operations Safety
System (WebOPSS).
\96\ The FAA estimated 4 hours per application for the LODA
holder to reapply. The undiscounted applicant cost was calculated as
burden hours times average labor rate including benefits. The FAA
used an average wage including benefits of $63.25, which is the
average wage of flight instructors ($43.14) divided by the percent
of total employer costs of employee compensation represented by
wages (68.2%) to account for benefits (31.8%). Flight instructor
wages are the Bureau of Labor Statistics wage estimate for
commercial pilots employed at technical and trade schools. Accessed
Apr. 12, 2022, https://www.bls.gov/oes/current/oes532012.htm.
\97\ The undiscounted FAA cost was calculated as burden hours
times average labor rate including benefits. The FAA used an average
wage including benefits of $79.30, which is the wage of FG-13 Step 5
FAA aviation safety inspectors ($58.20) in the Washington-Baltimore-
Arlington Metro Area in 2022 plus benefits (36.25% of wages).
\97\FAA Order 8900.1, Flight Standards Management Information
System, Vol. 3, Chpt. 11, Sec. 1. Use of Aircraft Issued
Experimental Certificates in Flight Training for Compensation or
Hire.
\98\ The undiscounted FAA cost was calculated as burden hours
times average labor rate including benefits. The FAA used an average
wage including benefits of $79.30, which is the wage of FG-13 Step 5
FAA aviation safety inspectors ($58.20) in the Washington-Baltimore-
Arlington Metro Area in 2022 plus benefits (36.25% of wages).
---------------------------------------------------------------------------
Under current guidance,\99\ LODA applicants already submit most of
the proposed requirements related to training plans, instructor
qualifications, maintenance, airworthiness, and record-keeping in order
to successfully obtain and maintain a LODA. For the most part, the cost
of reapplying will consist of the time to gather the relevant
information and submit the new application. Current LODA holders who
reapply successfully will gain the benefit of broadly offering their
aircraft for flight testing and checking. Current LODAs only allow
operators to broadly offer or advertise their aircraft for flight
training and do not permit checking or testing.
---------------------------------------------------------------------------
\99\ FAA Order 8900.1, Flight Standards Management Information
System, Vol. 3, Chpt. 11, Sec. 1. Use of Aircraft Issued
Experimental Certificates in Flight Training for Compensation or
Hire.
---------------------------------------------------------------------------
Similarly, the FAA expects minimal costs for operators of limited
category aircraft with exemptions to apply for a LODA prior to
expiration of their exemptions. Currently, there are fewer than five
active training exemptions for limited category aircraft. Moreover,
these exemptions normally only have a duration of two years and the FAA
expects most exemption holders to already meet most of the LODA
requirements outlined in the accompanying LODA Advisory Circular. The
cost will consist of the time to gather the required information and
submit a new LODA application.
For future LODA applicants who seek to broadly offer their
experimental or limited category aircraft for training, testing, or
checking, the proposal is expected to lower compliance costs. Although
the proposed LODA requirements are similar to current requirements for
operators who broadly offer aircraft holding certain special
airworthiness certificates for training,
[[Page 41216]]
the simplified regulatory structure and guidance in the accompanying
advisory circular is expected to make it easier for potential
applicants to understand requirements and submit a successful
application.
Overall, the FAA does not expect the proposal to significantly
increase administrative costs at the FAA. The FAA will incur costs
within the first two years of a final rule's effective date to process
LODA applications from the small subset of current holders of LODAs or
exemptions required to reapply under the proposal. However, in the long
run the streamlined regulatory structure and guidance is expected to
reduce the amount of time the FAA must spend obtaining additional
information from applicants and evaluating applications.
Finally, the clarification and simplification of the LODA process
for operators of aircraft with certain special airworthiness
certificates who advertise or broadly offer their aircraft for
training-might ultimately lower travel costs for pilots seeking the
types of supplemental and specialized training envisioned under the
proposed Sec. 91.326(b). If more operators successfully apply for
LODAs to broadly offer specialized training, pilots interested in
receiving this optional specialized training might not have to travel
as far to receive it. For example, the FAA recognizes that training in
an Experimental Light-Sport Aircraft (ELSA) is beneficial for pilots to
gain familiarity with the performance and handling qualities of other
light-sport aircraft and ultralights. Currently, there are some two-
seat aircraft that perform and handle similarly to an ultralight,
certificated as Special Light-Sport Aircraft (SLSA) available to
conduct training, but not available in sufficient numbers for
widespread availability. Under the proposal, the availability of ELSA
for training through LODAs might enable pilots of other light-sport
aircraft and ultralights to receive optional training without traveling
as far, consequently, reducing fuel costs incurred from travel, as well
as the time cost of travel.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980 (Pub. L. 96-354), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L.
111-240), requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term ``small entities''
comprises small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities,
section 605(b) of the RFA provides that the head of the agency may so
certify and a regulatory flexibility analysis is not required. The
certification must include a statement providing the factual basis for
this determination with a reasoned explanation.
While the proposed rule would likely impact a substantial number of
small entities, it would have a minimal economic impact. The PAO
proposal does not impose any new requirements or costs on small
entities. It fulfills the mandate in section 517 of the FAA
Reauthorization Act of 2018 that directs the FAA to allow pilots of
aircraft under the control of forestry and fire protection agencies
engaged in PAO to credit their flight time towards FAA civil regulatory
requirements. It enables pilots to log aeronautical experience and
recent flight experience accumulated during PAO and to credit this
experience toward FAA civil certificates and ratings.
The proposal also simplifies the regulations for operators of
certain aircraft with special airworthiness certificates to obtain a
LODA allowing them to broadly offer their aircraft for elective or
specialized flight training, testing, and checking. Relative to current
requirements to obtain a LODA or exemption for these training
operations, the proposal clarifies requirements and creates uniform
standards. The proposal also expands the types of aircraft eligible for
flight training, testing, and checking under a LODA. The only new cost
imposed by the proposal affects the holders of approximately 180 active
training LODAs who will be required to reapply within two years of the
effective date of a final rule. The FAA proposes to require these
operators to reapply to ensure compliance with the proposed
standardized LODA process. The FAA estimates that each current LODA
holder would spend approximately four hours to resubmit a LODA
application at an average cost of approximately $250 per LODA.\100\
---------------------------------------------------------------------------
\100\ Cost per resubmitted LODA calculated as four hours times
the average labor rate, including benefits. The FAA used an average
wage including benefits of $63.25, which is the average wage of
flight instructors ($43.14) divided by the percent of total employer
costs of employee compensation represented by wages (68.2%) to
account for benefits (31.8%). Flight instructor wages are the Bureau
of Labor Statistics wage estimate for commercial pilots employed at
technical and trade schools. Accessed Apr. 12, 2022, https://www.bls.gov/oes/current/oes532012.htm.
---------------------------------------------------------------------------
The draft LODA advisory circular, published concurrently with this
proposed rule, provides guidance, sample documentation, and training
materials to fulfill Recommendation A-12-035 of the National
Transportation Safety Board (NTSB). The FAA expects the LODA advisory
circular to clarify the application process, thereby making it easier
for potential applicants to understand requirements and submit a
successful application.
If an agency determines that a rulemaking will not result in a
significant economic impact on a substantial number of small entities,
the head of the agency may so certify under section 605(b) of the RFA.
Therefore, the FAA proposes to certify that the rule will not have a
significant economic impact on a substantial number of small entities.
The FAA welcomes comments on the basis of this certification.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective such as the protection of safety and does not operate in a
manner that excludes imports, that meet this objective. The statute
also requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
The FAA has assessed the potential effect of this proposed rule and
determined that the proposal responds to a domestic safety objective.
The FAA has determined that this proposed rule is not considered an
unnecessary obstacle to trade.
[[Page 41217]]
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $165 million in lieu of $100
million. This proposed rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
As part of this rulemaking action, the FAA is also requesting OMB
approval for a new one-time information collection request. As required
by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has
submitted these proposed information collection revisions to OMB for
its review.
Summary: The proposed rule creates Sec. 91.326(b) which
establishes unified requirements for operators who broadly offer
certain aircraft with special airworthiness certificates for flight
training, testing, or checking to obtain prior approval from the FAA in
the form of a LODA. Through the LODA process the FAA provides oversight
of operators who advertise or broadly offer certain aircraft with
special airworthiness certificates for elective and specialized flight
training, testing, and checking. The advisory circular published
concurrently with this proposed rule provides guidance, sample
documentation, and training materials to fulfill Recommendation A-12-
035 of the National Transportation Safety Board (NTSB). The FAA expects
that the proposed Sec. 91.326(b) and advisory circular will ensure
consistency and clarify the application process, thereby making it
easier for potential applicants to understand requirements and submit a
successful application.
Under the current Sec. 91.319(h), operators of certain
experimental aircraft already have the opportunity to apply for LODAs
permitting them to advertise or broadly offer their aircraft for flight
training, testing, or checking in exchange for compensation that
includes use of the aircraft. The proposed Sec. 91.326(b) extends the
opportunity to apply for a LODA to operators of aircraft not currently
eligible for LODAs under Sec. 91.319(h). Previously ineligible
aircraft that would be eligible for operations under a LODA in the
proposed Sec. 91.326(b) include experimental light-sport aircraft
(ELSA) and limited category aircraft. Under current rules, operators of
primary category and limited category aircraft are required to petition
the FAA for an exemption \101\ to broadly offer their aircraft for
flight training, testing or checking. Under proposed changes to Sec.
91.325 operators of primary category aircraft will be permitted to
conduct training operations without obtaining a LODA or exemption.
---------------------------------------------------------------------------
\101\ Under 14 CFR 11.5, a petition for exemption is a request
from an individual or entity requesting relief from a current
regulation. The FAA expects that the new guidance associated with
the LODA process will reduce burden hours relative to petitioning
for exemptions.
---------------------------------------------------------------------------
In addition to extending LODA eligibility to operators of
additional limited category aircraft, the proposed rule will also
terminate all active Sec. 91.319(h) LODAs for training operations for
compensation in experimental aircraft within two years of the effective
date of the final rule. Exemptions issued for flight training in
limited and primary category aircraft will not be renewed. Exemptions
issued for Living History Flight Experiences are not affected by the
proposed rule. The FAA expects operators of experimental or limited
category aircraft with active LODAs or exemptions,\102\ respectively,
who broadly offer their aircraft for training to apply for a LODA under
the proposed Sec. 91.326(b) within this time period. The FAA currently
issues LODAs without expiration dates for eligible operators who
broadly offer their aircraft for training. The FAA is proposing to
terminate current LODAs in order to ensure that all operators are in
compliance with the proposed requirements.
---------------------------------------------------------------------------
\102\ Exemptions are typically only valid for two years.
Therefore, the FAA does not expect current exemption holders to be
materially affected by the requirement to apply for a LODA within 2
years. The FAA expects that the information and time requirements to
apply for a LODA under Sec. 91.326(c) for current exemption holders
will be similar to the time and information requirements to renew an
exemption, but substantially less than the time requirements to
petition for a new exemption.
---------------------------------------------------------------------------
The burden analysis in this proposed rule only applies to holders
of active LODAs who must reapply within two years of the effective date
of a final rule. On February 14, 2022, the FAA published a separate
notice to revise OMB Control Number 2120-0005 for information
collection related to LODAs for flight training, testing, and checking
in certain experimental aircraft.\103\
---------------------------------------------------------------------------
\103\ See 87 FR 8335 (Feb. 14, 2022) ``Clearance of Renewed
Approval of Information Collection: General Operating and Flight
Rules FAR 91 and FAR 107.''
---------------------------------------------------------------------------
Use: The FAA will use the information provided by LODA applicants
to promote safety for specialized flight training, testing, or checking
offered to the public in experimental and limited category aircraft.
The LODA framework enables the FAA to provide oversight to ensure
effective training and maintenance of the aircraft.
Respondents: The FAA estimates that within the first two years of
the effective date of a final rule, approximately 180 current LODA
holders will reapply for LODAs.\104\
---------------------------------------------------------------------------
\104\ The FAA Web-based Operations Safety System (WebOPSS)
contains 180 LODAs for experimental aircraft under Sec. 91.319(h).
---------------------------------------------------------------------------
Frequency: One time per applicant. The proposed LODAs do not have
an expiration period.
Annual Burden Estimate: For current LODA holders who reapply within
the first two years of the effective date of a final rule, the FAA
estimates a one-time burden of four hours per applicant. The FAA
expects the applicant to keep the required information as a condition
of the current LODA, so the burden of reapplying will consist of the
time to gather the required information and resubmit. Current LODA
holders are already required to meet the recordkeeping and other
proposed requirements. Therefore, the proposal creates no new annual
burden for current LODA holders who reapply. The proposed LODAs do not
have an expiration date, so there will be no renewal costs. The FAA
assumes the burden hours per application for the FAA to process
applications from current LODA holders who reapply will be four hours.
Table 1 presents the annual burden hours and undiscounted costs for
the approximately 180 current LODA holders required to reapply within
the first two years of the effective date of a final rule. Table 2
presents the burden estimate and costs for the Federal Government to
process these LODA applications. The total undiscounted cost of burden
hours for applicants and the FAA combined is estimated to be
[[Page 41218]]
$102,642 over two years. Total discounted (at 7 percent) cost of burden
hours is estimated to be $91,743 over two years. Total annualized costs
at a 7 percent discount rate are $47,423.
Table 1--Total Burden Hours and Costs for Current LODA Holders Who Must Reapply
----------------------------------------------------------------------------------------------------------------
Number of LODA Hours per
applications application Total burden Total cost for
Year from current current LODA hours applicants
LODA holders \1\ holders undiscounted \2\
----------------------------------------------------------------------------------------------------------------
1......................................... 60 4 240 $15,181
2......................................... 120 4 480 30,362
---------------------------------------------------------------------
Total................................. ................ ................ 720 45,543
Mean.................................. ................ ................ 360 22,772
----------------------------------------------------------------------------------------------------------------
LODA = Letter of Deviation Authority.
\1\ The FAA assumes that approximately one third of current LODA holders will reapply the first year after the
effective date of a final rule and the remaining LODA holders will reapply in the second year.
\2\ Undiscounted applicant cost calculated as burden hours times average labor rate including benefits. The FAA
used an average wage including benefits of $63.25, which is the average wage of flight instructors ($43.14)
divided by the percent of total employer costs of employee compensation represented by wages (68.2%) to
account for benefits (31.8%). Flight instructor wages are the Bureau of Labor Statistics wage estimate for
commercial pilots employed at technical and trade schools. Accessed April 12, 2022, https://www.bls.gov/oes/current/oes532012.htm.
Table 2--Total Burden Hours and Cost to Federal Government To Process Applications From Current LODA Holders Who
Must Reapply
----------------------------------------------------------------------------------------------------------------
Number of LODA
applications Hours per Total burden FAA cost
Year from current application FAA hours FAA undiscounted \2\
LODA holders \1\
----------------------------------------------------------------------------------------------------------------
1......................................... 60 4 240 $19,033
2......................................... 120 4 480 38,066
---------------------------------------------------------------------
Total................................. 180 ................ 720 57,098
Mean.................................. 90 ................ 360 28,549
----------------------------------------------------------------------------------------------------------------
LODA = Letter of Deviation Authority.
\1\ The FAA assumes that approximately one third of current LODA holders will reapply the first year after the
effective date of the final rule and the remaining LODA holders will reapply in the second year.
\2\ Undiscounted government cost calculated as burden hours times average labor rate including benefits. The FAA
used an average wage including benefits of $79.30, which is the wage of FG-13 Step 5 FAA aviation safety
inspectors ($58.20) in the Washington-Baltimore-Arlington Metro Area in 2022 plus benefits (36.25% of wages).
The agency is soliciting comments to--
(1) Evaluate whether the proposed information requirement is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden
hours and cost;
(3) Enhance the quality, utility and clarity of the information to
be collected; and
(4) Minimize the burden of collecting information on those who are
to respond, including by using appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Individuals and organizations may send comments on the information
collection requirement to the address listed in the ADDRESSES section
at the beginning of this preamble by August 22, 2023. Comments also
should be submitted to the Office of Management and Budget, Office of
Information and Regulatory Affairs, Attention: Desk Officer for FAA,
New Executive Office Building, Room 10202, 725 17th Street NW,
Washington, DC 20053.
F. International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified a difference with these proposed regulations. The FAA
notes that, under proposed Sec. 61.51(f)(4), pilots designated by a
government entity as an SIC may log SIC time during authorized PAO with
certain limitations. The FAA determined that this provision is
inconsistent with the ICAO standard for logging. Accordingly, all
pilots who log flight time under this provision and apply for an ATP
certificate would have a limitation on the certificate indicating that
the pilot does not meet the PIC aeronautical experience requirements of
ICAO. This limitation may be removed when the pilot presents
satisfactory evidence that he or she has met the ICAO standards.
G. Environmental Analysis
FAA Order 1050.1F identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this proposed rule qualifies for the categorical exclusion
identified in paragraph 5-6.6f and involves no extraordinary
circumstances.
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this rulemaking under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would not have a
[[Page 41219]]
substantial direct effect on the States, or the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities among the various levels of government, and,
therefore, would not have federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this rulemaking under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. The agency has determined that it would not be a
``significant energy action'' under the executive order and would not
be likely to have a significant adverse effect on the supply,
distribution, or use of energy.
C. Executive Order 13609, International Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation, promotes international regulatory cooperation to meet
shared challenges involving health, safety, labor, security,
environmental, and other issues and to reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policies and agency responsibilities of
Executive Order 13609, and has determined that this action would have
no effect on international regulatory cooperation.
VII. Additional Information
A. Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The Agency
also invites comments relating to the economic, environmental, energy,
or federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should submit only one time if comments
are filed electronically or commenters should send only one copy of
written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The FAA may change this proposal in light
of the comments it receives.
B. Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA), 5 U.S.C. 552,
CBI is exempt from public disclosure. If your comments responsive to
this NPRM contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this NPRM, it is important that you
clearly designate the submitted comments as CBI. Please mark each page
of your submission containing CBI as ``PROPIN.'' The FAA will treat
such marked submissions as confidential under the FOIA, and they will
not be placed in the public docket of this NPRM. Submissions containing
CBI should be sent to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. Any commentary the FAA
receives which is not specifically designated as CBI will be placed in
the public docket for this rulemaking.
C. Electronic Access and Filing
A copy of this notice of proposed rulemaking, all comments
received, any final rule, and all background material may be viewed
online at www.regulations.gov using the docket number listed above. A
copy of this rulemaking will be placed in the docket. Electronic
retrieval help and guidelines are available on the website. It is
available 24 hours each day, 365 days each year. An electronic copy of
this document may also be downloaded from the Office of the Federal
Register's website at www.federalregister.gov and the Government
Publishing Office's website at www.govinfo.gov. A copy may also be
found at the FAA's Regulations and Policies website at www.faa.gov/regulations_policies.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.
List of Subjects
14 CFR Part 61
Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse,
Flight instruction, Recreation and recreation areas, Reporting and
recordkeeping requirements, Security measures, Teachers.
14 CFR Part 91
Agriculture, Air carriers, Air taxis, Air traffic control,
Aircraft, Airmen, Airports, Aviation Safety, Charter flights, Freight,
Reporting and recordkeeping requirements, Security measures,
Transportation.
The Proposed Amendment
For the reasons discussed in the preamble, the Federal Aviation
Administration proposes to amend chapter I of title 14, Code of Federal
Regulations as follows:
PART 61--CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND
INSTRUCTORS
0
1. The authority citation for part 61 is revised to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701-44703, 44707,
44709-44711, 44729, 44903, 45102-45103, and 45301-45302, and sec.
2307, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note); and
sec. 318, Pub. L. 115-254, 132 Stat. 3186 (49 U.S.C. 44703 note).
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2. Amend Sec. 61.51 by revising paragraphs (f) and (j)(4) to read as
follows:
Sec. 61.51 Pilot logbooks.
* * * * *
(f) Logging second-in-command flight time. A person may log second-
in-command time only for that flight time during which that person:
(1) Is qualified in accordance with the second-in-command
requirements of Sec. 61.55, and occupies a crewmember station in an
aircraft that requires more than one pilot by the aircraft's type
certificate;
(2) Holds the appropriate category, class, and instrument rating
(if an instrument rating is required for the flight) for the aircraft
being flown, and more than one pilot is required under the type
certification of the aircraft or the regulations under which the flight
is being conducted;
(3) Serves as second-in-command in operations conducted in
accordance with Sec. 135.99(c) of this chapter when a second pilot is
not required under the
[[Page 41220]]
type certification of the aircraft or the regulations under which the
flight is being conducted, provided the requirements in Sec. 61.159(c)
are satisfied; or
(4) Is designated by a government entity as second in command when
operating in accordance with paragraph (j)(4) of this section provided
the aircraft used is a large aircraft or turbo-jet powered airplane; or
holds or originally held a type certificate that requires a second
pilot provided that:
(i) Second-in-command time logged under paragraph (f)(4) of this
section may not be used to meet the aeronautical experience
requirements for the private or commercial pilot certificates or an
instrument rating; and
(ii) An applicant for an airline transport pilot certificate who
logs second in command time under paragraph (f)(4) of this section is
issued an airline transport pilot certificate with the limitation,
``Holder does not meet the pilot in command aeronautical experience
requirements of ICAO,'' as prescribed under Article 39 of the
Convention on International Civil Aviation if the applicant does not
meet the ICAO requirements contained in Annex 1 ``Personnel Licensing''
to the Convention on International Civil Aviation. An applicant is
entitled to an airline transport pilot certificate without the ICAO
limitation specified under this paragraph when the applicant presents
satisfactory evidence of having met the ICAO requirements and otherwise
meets the aeronautical experience requirements of Sec. 61.159.
* * * * *
(j) * * *
(4) An aircraft used to conduct a public aircraft operation under
49 U.S.C. 40102(a)(41) and 40125.
* * * * *
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3. Amend Sec. 61.57 by adding paragraph (e)(5) to read as follows:
Sec. 61.57 Recent flight experience: Pilot in command.
* * * * *
(e) * * *
(5) Paragraphs (a) and (b) of this section do not apply to a person
receiving flight training from an authorized instructor, provided:
(i) The flight training is limited to the purpose of meeting the
requirements of paragraphs (a) and (b) of this section;
(ii) Notwithstanding the provisions of paragraphs (a) and (b), the
person receiving flight training meets all other requirements to act as
pilot in command of the aircraft; and
(iii) The authorized instructor and the person receiving flight
training are the sole occupants of the aircraft.
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4. Amend Sec. 61.159 by revising paragraph (e) to read as follows:
Sec. 61.159 Aeronautical experience: Airplane category rating.
* * * * *
(e) An applicant who credits time under paragraphs (b), (c), and
(d) of this section and Sec. 61.51(f)(4) is issued an airline
transport pilot certificate with the limitation, ``Holder does not meet
the pilot in command aeronautical experience requirements of ICAO,'' as
prescribed under Article 39 of the Convention on International Civil
Aviation.
* * * * *
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5. Amend Sec. 61.161 by revising paragraph (d) to read as follows:
Sec. 61.161 Aeronautical experience: Rotorcraft category and
helicopter class rating.
* * * * *
(d) An applicant who credits time under paragraph (c) of this
section and Sec. 61.51(f)(4) is issued an airline transport pilot
certificate with the limitation, ``Holder does not meet the pilot in
command aeronautical experience requirements of ICAO,'' as prescribed
under Article 39 of the Convention on International Civil Aviation.
* * * * *
0
6. Amend Sec. 61.193 by:
0
a. Revising paragraphs (a) introductory text and (a)(7); and
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b. Adding paragraph (c).
The revisions and addition read as follows:
Sec. 61.193 Flight Instructor Privileges.
(a) A person who holds a flight instructor certificate is
authorized within the limitations of that person's flight instructor
certificate and ratings to conduct ground training, flight training,
certain checking events, and to issue endorsements related to:
* * * * *
(7) A flight review, operating privilege, or recency of experience
requirement of this part, or training to maintain or improve the skills
of a certificated pilot;
* * * * *
(c) The privileges authorized in this section do not permit a
person who holds a flight instructor certificate to conduct operations
that would otherwise require an air carrier or operating certificate or
specific authorization from the Administrator.
0
7. Amend Sec. 61.413 by:
0
a. Revising paragraphs (a) introductory text and (a)(6); and
0
b. Adding paragraph (c).
The revisions and addition read as follows:
Sec. 61.413 What are the privileges of my flight instructor
certificate with a sport pilot rating?
(a) If you hold a flight instructor certificate with a sport pilot
rating, you are authorized, within the limits of your certificate and
rating, to conduct ground training, flight training, certain checking
events, and to issue endorsements. The kind of training and the
endorsements that may be issued are those required for, or related to:
* * * * *
(6) A flight review or operating privilege for a sport pilot, or
training to maintain or improve the skills of a sport pilot;
* * * * *
(c) The privileges authorized in this section do not permit a
person who holds a flight instructor certificate to conduct operations
that would otherwise require an air carrier or operating certificate or
specific authorization from the Administrator.
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
8. The authority citation for part 91 is revised to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40105,
40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712,
44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507,
47122, 47508, 47528-47531, 47534; Sec. 5604 of Pub. L. 117-263.
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9. Revise Sec. 91.315 to read as follows:
Sec. 91.315 Limited category civil aircraft: Operating limitations.
Except as provided in Sec. 91.326 of this part, no person may
operate a limited category civil aircraft carrying persons or property
for compensation or hire in operations that:
(a) Require an air carrier or commercial operator certificate
issued under part 119 of this chapter;
(b) Are listed in Sec. 119.1(e) of this chapter;
(c) Require management specifications for a fractional ownership
program issued in accordance with Subpart K of part 91 of this chapter;
or
(d) Are conducted under parts 129, 133, or 137 of this chapter.
0
10. Amend Sec. 91.319 by:
0
a. Revising paragraphs (a) introductory text, (a)(2), (d)(3), (e)(2)
and (f); and
0
b. Removing and reserving paragraph (h).
The revisions read as follows:
Sec. 91.319 Aircraft having experimental certificates: Operating
limitations.
(a) Except as provided in Sec. 91.326 of this part, no person may
operate an
[[Page 41221]]
aircraft that has an experimental certificate--
(1) * * *
(2) Carrying persons or property for compensation or hire in
operations that:
(i) Require an air carrier or commercial operator certificate
issued under part 119 of this chapter;
(ii) Are listed in Sec. 119.1(e) of this chapter;
(iii) Require management specifications for a fractional ownership
program issued in accordance with subpart K of part 91 of this chapter;
or
(iv) Are conducted under parts 129, 133, or 137 of this chapter.
* * * * *
(d) * * *
(3) Notify air traffic control of the experimental nature of the
aircraft when utilizing air traffic services.
(e) * * *
(2) Conduct operations authorized under Sec. 91.326 of this part.
(f) No person may lease an aircraft that is issued an experimental
certificate under Sec. 21.191(i) of this chapter, except--
(1) In accordance with paragraph (e)(1) of this section; or
(2) To conduct a solo flight in accordance with a training program
included as part of the deviation authority specified under Sec.
91.326(b) of this part.
* * * * *
(h) [Reserved]
* * * * *
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11. Revise Sec. 91.325 to read as follows:
Sec. 91.325 Primary category aircraft: Operating limitations.
(a) Unless provided for in this section, no person may operate a
primary category aircraft carrying a person or property for
compensation or hire in operations that:
(1) Require an air carrier or commercial operator certificate
issued under part 119 of this chapter;
(2) Are listed in Sec. 119.1(e) of this chapter;
(3) Require management specifications for a fractional ownership
program issued in accordance with subpart K of part 91 of this chapter;
or
(4) Are conducted under parts 129, 133, or 137 of this chapter.
(b) Except as provided in Sec. 91.326(a), no person may operate a
primary category aircraft that is maintained by the pilot-owner under
an approved special inspection and maintenance program except--
(1) The pilot-owner; or
(2) A designee of the pilot-owner, provided that the pilot-owner
does not receive compensation for the use of the aircraft.
(c) A primary category aircraft that is maintained by an
appropriately rated mechanic or an authorized certificated repair
station in accordance with the applicable provisions of part 43 of this
chapter may be used to conduct flight training, checking, and testing
for compensation or hire.
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12. Add Sec. 91.326 to subpart D to read as follows:
Sec. 91.326 Exception to Operating Certain Aircraft for Compensation
or Hire.
(a) For purposes of Sec. Sec. 91.315, 91.319, and 91.325 of this
part, an authorized instructor, registered owner, lessor, or lessee may
operate an aircraft for the purpose of flight training, checking, or
testing, and in the case of an experimental aircraft, for a purpose
other than that for which the certificate was issued, provided--
(1) The authorized 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 the 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. Compensation for the use of the aircraft for
profit is prohibited.
(b) Except as provided in paragraphs (a) and (c) of this section,
no person may conduct flight training, checking, or testing in a
limited category or experimental aircraft without deviation authority
issued under this paragraph.
(1) No person may operate under this section without a letter of
deviation authority issued by the Administrator.
(2) The FAA may cancel or amend a letter of deviation authority if
it determines that the deviation holder has failed to comply with the
conditions and limitations or at any time if the Administrator
determines that the deviation is no longer necessary or in the interest
of safety.
(3) An applicant must submit a request for deviation authority in a
form and manner acceptable to the Administrator at least 60 days before
the date of intended operations. A request for deviation authority must
contain a complete description of the proposed operation which
establishes a level of safety equivalent to that provided under the
regulations for the deviation requested, including:
(i) A letter identifying the name and address of the applicant;
(ii) The name and contact information of the individual with
ultimate responsibility for operations authorized under the deviation
authority;
(iii) Specific aircraft make(s), model(s), registration number(s),
and serial numbers to be used;
(iv) Copies of each aircraft's airworthiness certificate, including
the FAA-issued operating limitations, if applicable;
(v) Ejection seat information, if applicable;
(vi) An exemption issued under part 11, if applicable;
(vii) A detailed training program that demonstrates the proposed
activities will meet the intended training objectives;
(viii) A description of the applicant's process to determine
whether a trainee has a specific need for formation or aerobatic
training, or training leading to the issuance of an endorsement, if
those types of training are being requested; and
(ix) Any other information that the Administrator deems necessary
to evaluate the application.
(4) The Administrator may prescribe additional limitations in a
letter of deviation authority that the Administrator considers
necessary for safety. The holder of a letter of deviation authority
must comply with any limitations and conditions mandated in the
deviation authority.
(5) No person other than the authorized flight instructor,
designated examiner, person receiving flight training or being checked
or tested, or persons essential for the safe operation of the aircraft
may be on board during operations conducted under the deviation
authority.
(6) The Administrator may limit the types of training, testing, and
checking authorized under this deviation authority. Training, testing,
and checking under this deviation authority must be conducted
consistent with the training program submitted for FAA review.
(c) For deviation authority issued under Sec. 91.319 of this part
prior to [EFFECTIVE DATE OF FINAL RULE], the following requirements
apply--
(1) The deviation holder may continue to operate under the letter
of deviation authority until [DATE 24 MONTHS AFTER EFFECTIVE DATE OF
FINAL RULE];
(2) The deviation holder must continue to comply with the
conditions and limitations in the letter of deviation authority when
conducting an operation under the letter of deviation authority in
accordance with Sec. 91.326(c)(1);
(3) The letter of deviation authority may be cancelled or amended
at any time; and
[[Page 41222]]
(4) The letter of deviation authority terminates on [DATE 24 MONTHS
AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
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13. Amend Sec. 91.327 by revising paragraph (a)(2) to read as follows:
Sec. 91.327 Aircraft having a special airworthiness certificate in
the light-sport category: Operating limitations.
(a) * * *
(2) To conduct flight training, checking, and testing.
* * * * *
Issued under authority provided by 49 U.S.C. 106(f), 44701-
44703, sec. 517 of Public Law 115-254, and Sec. 5604 of Public Law
117-263 in Washington, DC.
Wesley L. Mooty,
Acting Deputy Executive Director, Flight Standards Service.
[FR Doc. 2023-12600 Filed 6-22-23; 8:45 am]
BILLING CODE 4910-13-P
