With members already posing many questions, AOPA is working to address myriad concerns about the policy the FAA issued without public notice, thereby throwing down a compliance gauntlet for pilots just weeks before EAA AirVenture, the largest aviation gathering of the year and an event heavily attended by pilots of the more than 39,000 U.S.-registered experimental and limited category aircraft and many more standard category aircraft.
On initial review, AOPA is highly concerned about how the “policy” was issued without a public review and comment process and its failure to advance safety.
“This is an overreach and not acceptable,” said AOPA President Mark Baker. “We are working to respond with urgency and are considering all options available.”
The FAA said it issued the eight-page policy after AOPA and other groups sought the FAA’s perspective on what pilots who receive instruction in aircraft in three nonstandard airworthiness categories, and flight instructors who provide the instruction for compensation, must do to comply with regulations.
Certainty about the requirements was upended in April when a federal court refused to review an FAA cease-and-desist order against Warbird Adventures, a Florida company that advertised “opportunities to fly in Warbirds’ limited category aircraft at upcoming airshows and allowed members of the public to book flights in exchange for substantial amounts of money.” The FAA alleges that the company and its flight instructor were in violation of FAR 91.315, which “states that no person may operate a limited category aircraft carrying persons or property for compensation or hire.” The legal enforcement cases are ongoing, and no court decision has been issued determining whether the company or its flight instructor violated any regulation. Yet the FAA has issued a policy seeking to impose its untested legal interpretations as requirements on all airmen.
‘LODA’ requirement for experimental aircraft
The new policy acknowledges a “disconnect” between the guidance the FAA has long provided and its own regulations, but imposes a new requirement on owners of experimental aircraft and flight instructors providing flight training in experimental aircraft to apply electronically for a letter of deviation authority (LODA) “that will permit flight training for compensation in experimental aircraft when no compensation is provided for the use of the aircraft.”
“The FAA has long emphasized the importance of pilots being trained and checked in the aircraft they will operate,” the policy says. “Specifically, it is critical that pilots understand and are familiar with the particular systems, procedures, operating characteristics, and limitations of the aircraft they will operate.”
The LODA application must include the applicant’s name, an email address, pilot certificate number, the flight instructor’s certificate number (if applying as a CFI), aircraft registration number if the applicant is an owner, the make and model in which instruction will be received or provided, and the aircraft’s home base, if the applicant is the owner.
The FAA said it will “consider” mounting a rulemaking effort that would eliminate the need for the LODAs that typically take several weeks to gain approval. However, rulemaking could take years.
AOPA’s government affairs team is an active and experienced participant in the FAA rulemaking process and will make sure general aviation’s voice is heard during any rulemaking activity.
In the meantime, much remains unknown about how the new LODA process—characterized as an “interim” procedure—will work, and how quickly the FAA will manage an expected flood of tens of thousands of requests, said AOPA General Counsel Justine Harrison.
Primary and limited category aircraft need exemptions
A much smaller group of aircraft—including the Curtiss P–40 Warhawk involved in the Warbird Adventures case—are certified in the limited category (approximately 400 aircraft) and the primary category (about 30 pleasure aircraft of simple design).
The FAA insists that FARs 91.315 and 91.325 require owners of those aircraft and flight instructors providing instruction for compensation to request an exemption from the regulation. Here again, the exemption would be “for flight training operations when compensation is provided solely for the flight training and not the use of the aircraft.”
The exemption provisions concern AOPA because exemptions typically take months to approve—with operators unable to fly their aircraft pending action on their applications—and are discretionary. Of little encouragement was the FAA’s assurance that it will “consider adopting a fast-track exemption process” to minimize downtime, Harrison said.
AOPA questions the haste with which the FAA issued its policy, and Harrison noted that many uncertainties are quickly surfacing about the LODA process and other provisions—many of which could have been headed off by a thorough public airing-out of the proposed fixes.
“The whole purpose of public comment is to give stakeholders the opportunity to raise concerns and issues,” she said. “Now we are left with these concerns and questions, and with the policy about to take effect on July 12. Guidance documents should not be used to change the law, to expand the scope of regulations, or to change the obligations of pilots and aircraft owners.”