Tales from the DAR Side
Operating Limitations – The Devil Could Be in the Details
As promised in last month’s column, this month I’m going to explore some details of amateur-built aircraft operating limitations and point out some of the potential “gotchas” that you need to look for while operating it. There are lots of variations in operating limitations, so you need to be careful not to assume the limitations issued to your aircraft are identical to other similar aircraft you’re familiar with. Let’s work our way through a typical set of operating limitations in detail.
Every set of operating limitations will start out by identifying the aircraft by builder name (sometimes referred to as “make” or “manufacturer”), model, registration mark (aka N-number), and serial number. This info will be right below the FAA letterhead on the first page. Your first step is to make sure the information shown on the operating limitations matches the info shown on the airworthiness certificate itself as well as the aircraft identification plate (aka data plate). If the info isn’t exactly the same in all these locations, you need to contact your FAA Flight Standards District Office (FSDO) and get this straightened out.
Following the aircraft identification information, you’ll find a number of paragraphs that call out the actual limitations. These paragraphs are typically numbered, but I’ve seen some cases where they weren’t. The first paragraph will spell out the purpose(s) of the certification. In the case of amateur-built aircraft there will be two purposes listed. The first will be the initial flight-testing of the aircraft. The operating limitation will then state that after the initial flight-testing is completed the purpose of the certification is “education or recreation.”I’ll talk more about this purpose later in the article.
Generally, followingthe paragraph stating the purpose of the certificate, there will be a description of the initial flight-test area within which the “Phase 1” flight-testing must be conducted. This area might be described as a radius from an airport or other point, called out in either nautical or statute miles, or it might be described by latitude/longitude coordinates or may refer to an attached chart that depicts the flight-test area. The minimum number of hours that the aircraft must be operated within the flight-test area will either be called out in this paragraph or in a separate paragraph immediately following this one.
The next paragraph will cover what needs to be done in order to close out the initial flight-test period and move the aircraft into what the FAA calls “Phase 2,” which is normal operations. This is the first place where you can find major variations between different sets of operating limitations. The process for closing out a Phase 1 flight-test period has changed several times over the years, so operating limitations issued in the past will show different procedures than those that are issued today. It’s very important you check the operating limitations, seeing what is outlined for the completion of the flight-test period and making sure the aircraft records show that the proper procedure was followed.
Flying the aircraft outside the flight test period or with a passenger aboard isn’t allowed until that flight-test period is completed and properly closed out in accordance with the operating limitations, so you can easily understand the importance of this item. Up until the mid-1980s the FAA issued separate, limited-duration operating limitations for Phase 1. This required the builder or pilot to go back to the FAA and get a new airworthiness certificate and updated operating limitations after completing the flight-testing.
Newer operating limitations are issued with both Phase 1 and Phase 2 and combined into a single, unlimited-duration document. These limitations allow the builder or pilot to close out the flight-test period by making a specific entry in the aircraft records. Since this procedure requires no contact with or action by the FAA, there’s the rare case where this entry is overlooked and the aircraft ends up flying around for many hours outside the flight-test area, often with passengers, while still officially in Phase 1.
A pilot who is found to be operating an aircraft in such a manner is subject to FAA enforcement action, so it’s wise to check your operating limitations and aircraft records to make sure the flight-test period is properly closed out. This is also a very important thing to check when you’re considering the purchase of an already flying homebuilt. You don’t want to purchase an aircraft and fly it to your home field only to find out that the flight-test period has never been properly closed out. While this isn’t an insurmountable problem, it’s definitely not what you bargained for. A check of the aircraft records before purchase will head off the problem.
Earlier in this article, I talked about the certification purpose of the aircraft and established that for amateur-built aircraft thecertification purpose is “education or recreation.” Why should that matter to the operator? Part 91 of the FAA regulations holds the answer.
The specific section of Part 91 that deals with experimental aircraft operating limitations is 14 CFR 91.319, titled Aircraft having experimental certificates: Operating limitations.Right at the beginning of this regulation you’ll find the following:
(a) No person may operate an aircraft that has an experimental certificate –
(1) For other than the purpose for which the certificate was issued; or
(2) Carrying persons or property for compensation or hire.
As you can see, the regulation specifically prohibits anyone from operating the experimental aircraft for any purpose other than that for which it has been certificated. So in the case of an amateur-built aircraft, no operations are allowed other than those for “education or recreation.”
The second part of the regulation I’ve quoted states that the aircraft can’t be used for carriage of persons or property for compensation or hire. In fact, the FAA reiterates this in the operating limitations issued to all experimental aircraft. Regardless of what type of experimental certificate the aircraft holds, be it amateur-built, experimental light-sport aircraft, exhibition, or what have you, the operating limitations will contain the following verbiage:
No person may operate this aircraft for carrying persons or property for compensation or hire.
A question that often comes up is whether or not the pilot of an amateur-built aircraft can share expenses for a flight with his passenger(s). Pilots are generally allowed to share direct expenses such as fuel, oil, ramp fees, etc., so most pilots believe that such sharing is allowed regardless of what aircraft they’re flying. But I’ve been told by several FAA inspectors, including some personnel from FAA headquarters in Washington, D.C., that any compensation is prohibited, including partial compensation in the form of pro rata expense sharing which would be unacceptable in an amateur-built aircraft.
To date we know of no case where the FAA has pursued action against a pilot for expense sharing or for operating outside the certification purpose of the aircraft, but it’s not a bad idea to be aware that the FAA could take such action if it saw fit. Forewarned is forearmed!
We’ve covered a few of the details of amateur-built operating limitations, but there’s much more to discuss, so we’ll continue this topic next month. Stay tuned!