EAA continues to push the FAA for a legitimate solution to the harm and confusion the agency has created with its recent interpretation involving compensated flight training in Experimental, Limited, and Primary Category aircraft. As previously mentioned, the FAA did an unexpected and stunning about-face from decades of standard policy with the change, disregarding longstanding aviation safety practices.
The Letter of Deviation Authority (LODA) process created to allow flight training to continue in Experimental aircraft is no more than an interim quick-fix until a permanent rule change that returns the common-sense flight training policy for this aircraft category, and the safety standards that are present with it. In parallel with the LODA effort is an upcoming exemption process for Limited and Primary categories as well. EAA is urging the FAA to keep these interim steps as simple as possible to minimize the burden to the community.
EAA remains at odds with this recent rule interpretation. We will continue to use every option to remedy this FAA decision, including legislative, regulatory, and legal options, working on our own and in concert with other aviation organizations.
Along with those efforts, we have assembled answers to the most commonly asked questions regarding these interim policies. We will keep EAA members fully updated on these discussions, including those that will undoubtedly take place during EAA AirVenture Oshkosh later this month. Pilots should also know that this policy presents NO concern to pilots flying their aircraft to Oshkosh in the coming days.
- How is this different than the way it was before?
Prior to this policy and the FAA interpretation and court ruling that precipitated it, the FAA’s written policy was that you could pay a CFI to train you in any aircraft, as long as the use of the aircraft itself was not compensated. In other words, you could not rent out your aircraft for flight training. Now, all compensated training in Experimental, Limited, and Primary category has been deemed contrary to regulation without a LODA or exemption.
- I fly an experimental aircraft. How does this change in policy apply to me?
If you are not giving or receiving instruction in the aircraft, this policy does not directly apply to you. Compensating or hiring an individual to fly with you in an experimental aircraft is now considered contrary to the rules. To fly with a compensated or hired CFI, you or the CFI now need a Letter of Deviation Authority (LODA).
- What’s a LODA?
A LODA is like a streamlined exemption that allows you to deviate from the FARs in certain cases. In this case, the LODA is a deviation from 14 CFR 91.319(a)(2), which prohibits “carrying persons or property for compensation or hire” in an experimental aircraft.
- Does the owner/operator, the CFI, or both need the LODA?
Only one person in the cockpit needs to have the LODA. If you are a CFI and your student holds a LODA for their aircraft, you are covered.
- How do I get a LODA?
Per the FAA policy, you must send an email to 9-AVS-AFG-LODA@faa.gov
with the following information:
- Email address
- Pilot certificate number
- Flight instructor certificate number (if applying as a CFI)
- Aircraft registration number (if applying as an owner)
- Aircraft make/model in which you will receive or provide instruction
- Aircraft home base airport (if applying as an owner)
If the above information is submitted correctly, your FSDO should issue your LODA to you in several business days.
- How long is the LODA good for?
The LODA should be good for 4 years (48 months).
- Regarding make/model – isn’t every homebuilt a unique make and model?
Yes. We believe the FAA’s intent was for applicants to declare the general aircraft type (RV-6, Glastar, etc…).
- Should I get my LODA right now?
Only if you anticipate instructing or receiving instruction in the next few months. Too many requests at once might make it more difficult for active students/instructors to get the letters they need to keep training in a timely manner.
- Does this LODA carry any burdensome requirements or paperwork?
While many other types of LODAs do, this one shouldn’t. It is simply a legal workaround to allow flight training operations to continue in spite of this legal interpretation.
- How does this do anything to enhance safety?
It doesn’t, and in fact it does the opposite. The FAA and the courts have, unbelievably, ruled that safety-critical operations are not allowed under the rules as they are written. EAA has emphasized that this interpretation runs counter to FAA’s own mandate to ensure aviation safety.
- What if I instruct for free?
You should consider that the FAA’s definition of “compensation” is far broader than simply money. In a 2013 FAA legal interpretation, the FAA stated that: “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.”
- Does this interpretation of training being for “compensation or hire” change the requirements of being a flight instructor? Can I still instruct with a 3rd Class Medical or BasicMed, or operate as a Sport Pilot CFI?
Yes, you can still instruct as normal. While we are concerned that the fallout of this interpretation may spread to these areas, so far the FAA has repeatedly stated that they do not view these rules as being impacted by the ruling.
- What about flying clubs?
The club may file for a single LODA that will cover their members. The LODA must have one person listed (i.e. the flying club president), and you should send in the name and pilot certificate number of this individual. Once the LODA is issued, that person can delegate the privileges of the LODA to anyone who is eligible under the policy, including other flying club members.
- My child is learning in my airplane from a third-party, paid instructor. They are too young to have a student pilot certificate. What do we do?
The most expedient solution is probably for the CFI to get a LODA, as this covers anyone they instruct.
- Does “Primary Category” mean that this new policy applies to factory-built primary trainers, like Cessna 150s?
No. Primary Category is actually a little-known and even less-used certification category for aircraft, separate from any other category (i.e. Standard, Experimental, etc…). In a way, it was a precursor to Light-Sport in that it allows alternative certification standards to Part 23 for light aircraft. It remains a valid pathway for certification and has recently been used for the certification of gyroplanes. This ruling does not apply to training in Standard Category aircraft.
Ironically, the FAA’s own stated aim for Primary Category was to allow flight training in these aircraft. The FAA is now saying that you must get an exemption from the rule to receive the training that the rule was created to allow. This is another example of how this interpretation is contrary to FAA’s own aviation safety mandate and why EAA remains opposed to this LODA as anything beyond a short-term fix.
- What is Limited Category?
Limited Category was used to certify surplus military aircraft in the demobilization after World War II. Aircraft such as EAA’s B-17 Aluminum Overcast and B-25 Berlin Express are certified in the category. New airworthiness certificates in the category are no longer issued, but there are several hundred grandfathered aircraft on the registry in the Limited Category.
- I have (or instruct in) a Limited or Primary Category aircraft. Can I get a LODA?
No. These categories do not have a mechanism to grant LODAs. You will need an exemption. The FAA has stated an intent to begin issuing streamlined exemptions for these aircraft similar to the experimental LODAs. There should be more information soon on this process.
- What about DPEs? Do I need a LODA to get a practical test in my Experimental/Limited/Primary Category aircraft?
DPEs act as a representative of the Administrator during practical tests, and are explicitly exempt from any limitation on carriage of persons or property for compensation or hire per 14 CFR 61.47(c).
- How worried should I be about enforcement?
The FAA has not indicated that this new policy is an enforcement priority. The policy stems from a legal interpretation, not an actual safety concern with flight training in one’s own aircraft. Given the wide-ranging implications of this new policy, which was given with very little advance notice, we expect the FAA to show understanding to operators who are acting in good faith as this policy is rolled out.
- How did all of this happen? Where was EAA in all of this?
The FAA used a very absolutist interpretation of the rule in pursuing an enforcement case in federal court, apparently without regard for the enormous consequences of applying that interpretation to the community at large. When EAA saw their filings in the case more than a year and a half ago, we acted on it immediately. We joined several other GA groups in filing an amicus curiae (“friend of the court”) brief to educate the judges in the case, because we could see that the interpretation could lead to this outcome. Unfortunately, the court sided with the FAA on their interpretation and that outcome is now here.
- Now what?
This policy statement by the FAA is completely unacceptable, and startlingly contrary to the FAA’s mandate of ensuring safety. It already has the attention of Congress, and EAA is actively pursuing a legislative fix alongside a broad coalition of GA groups. Other regulatory and legal options are on the table as well. Our goal is to roll this policy back to the prior status quo, and will not stop until that happens. We view the LODA and exemptions as nothing more than stopgap to allow legal operations to continue.