# Public Aircraft Logging of Flight Time, Training in Certain Aircraft Holding Special Airworthiness Certificates, and Flight Instructor Privileges

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-12600

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** June 23, 2023
- **Citation:** 88 FR 41194

## Text

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
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 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

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.

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).

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.

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.

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 §§ 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

flight for a Federal, State, county, or municipal law enforcement agency.

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).

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

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.

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 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, 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 § 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

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.

10
83 FR 30232 (Jun. 27, 2018).

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 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.

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.,
§ 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 § 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

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

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 § 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.

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 (§ 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 § 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.

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.

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).

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).

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 § 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,

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.

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 §§ 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).

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, 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 § 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 § 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.

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 § 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 § 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.

24
See Legal Interpretation to E.V. Fretwell (Sept. 18, 1995).

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

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.

25
Advisory Circular 90-109A, Transition to Unfamiliar Aircraft (Jun. 29, 2015).

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 90-109 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

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 § 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 § 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 § 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 § 61.193(a).

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

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.

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 § 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.

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”).

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 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

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.”

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

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

of their aircraft for flight training except in accordance with a LODA issued under § 91.319(h).

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.

41
Notification of Policy for Flight Training in Certain Aircraft, 86 FR 36493 (Jul. 12, 2021).

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 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.

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.

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

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.

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.

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.

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

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 § 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.”

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

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.

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.

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 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

48
See Advisory Circular No. 61-142, Sharing Aircraft Operating Expenses in Accordance with 14 CFR 61.113(c), (2020).

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.

49
See Advisory Circular No. 61-142, Sharing Aircraft Operating Expenses in Accordance with 14 CFR 61.113(c), (2020).

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 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

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.

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.

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 §§ 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.

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

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”).

The history of limited category airworthiness certificates illustrates the

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)

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

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.

The FAA proposes to modify the broad language in § 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 § 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.

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.

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 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

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.”

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),

regarding the leasing of aircraft issued an experimental certificate under § 21.191(i).

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.

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 § 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

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.

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 § 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 § 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 § 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.

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 § 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

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.

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.

65
For example, see §§ 65.45, 91.123, 105.13, and 170.13.

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.

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 § 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

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 § 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.

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.

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

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).

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.

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 experimental aircraft, and flight instructors providing that training for compensation, applied for a LODA through the aforementioned streamlined process.
72

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 § 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).

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 non-monetary because compensation is the receipt of anything of value.
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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.
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Legal Interpretation to Joseph Kirwan (May 27, 2005) (Compensation “does not require a profit, a profit motive, or the actual payment of funds”).

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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 (§ 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 pilot-owner 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.

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.
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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.
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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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-12600. Public record. Not legal advice.