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Aviation Ideas and Discussion!

FAA Policy Reversal on CFI!

By

David St. George

Published on

in

SAFE has historically worked closely with the FAA on promoting safety and improving flight training (e.g. developing the new ACS). With all this close collaboration as CFIs, DPEs and FAAST team Lead Reps you start to think you know what is going on, how the program runs. The historic FAA policy on flight instruction very clearly defines it as “educator” stated by David P Byrne (September 18, 1995), then Assistant Chief Counsel Regulations Division:

“The FAA has determined that the compensation a certificated flight instructor receives for flight instruction is not compensation for piloting the aircraft but is rather compensation for the instruction.”

Now without changing any regulations (which would require extensive public notification and public comment of a Notice of Proposed Rulemaking), the FAA has launched a whole new interpretation that defines flight instruction to include “carrying persons or property for compensation or hire.” This dramatically affects all CFIs (and is contrary to their current written policy). A June 4th letter from the FAA, signed by Ali Bahrami Associate Administrator for Aviation Safety says:

Although a person may hold the appropriate privileges “to act as a required crewmember” or “conduct flight training” under part 61, the regulations in part 91 may restrict the exercise of those privileges in a particular category of aircraft under certain conditions, such as operations conducted for compensation or hire.

The decisiveness of this FAA reversal is clear in the recent FAA Letter which also states the new policy is in conflict with their published 8900.1 – the FAA day-to-day guidance on how to conduct business in aviation:

The guidance for inspectors on flight training in an experimental aircraft in FAA Order 8900.1 is not consistent with the plain language of § 91.319. FAA Order 8900.1, Vol. 3, Chpt 11, sec. 1, para. 3-292. Where a regulation and guidance conflict, the regulation controls.

So even the 8900.1 will need to be rewritten to support this new interpretation. Don’t panic yet, and remember these are restrictions specifically target 61.315 and 61.319, and 61.325 (Limited, Experimental, and Primary).  The FAA bases its new interpretation on the Warbird Adventures Case and also the Gregory Morris Legal Interpretation from 2014.

These current changes mostly affect pilots of experimental aircraft (for now). Going forward (if this stands) pilots in experimental, limited and primary aircraft will need a Letter of Deviation Authority (LODA) if they want flight instruction in their plane (currently only required for a CFI teaching in their own experimental and not an easy process).

Unfortunately, this also starts the legal ball rolling for all kinds of negative downstream effects concerning liability and medical requirements for CFIs. SAFE joined a consortium of united aviation “alphabets” that objected strongly to this recent policy change in a recent letter to the FAA. This new FAA interpretation is contrary to safety and certainly not what we need to encourage senior CFIs to continue in the industry already starved for experienced CFIs. SAFE has written directly to the FAA in protest and we encourage every concerned aviation citizen to copy our letter and send it here immediately (quick cut and paste). Stand by for FAA official policy (and watch our new section on the webpage). Fly safely (and often)!

Please see last week’s blog if you missed it: CFIs as “Media Influencers!” It is vital to direct your student’s media intake toward positive online programs.

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12 responses to “FAA Policy Reversal on CFI!”

  1. Tim Berridge Avatar
    Tim Berridge

    Your link to send correspondence to the FAA does not work.

    Reply
  2. John Avatar
    John

    The FAA letter says that owners of BOTH experimental AND ‘primary category’ [emphasis added – and which I understand means stadard AWC] now require unclear and new-to-all pilots bureaucratic steps just to do a BFR or any safety enhancing recurrent training.

    “To aid the regulated community in continuing operations with minimal interruption, while also advancing our shared goal of facilitating training—including make/model-specific training—the FAA suggests the following:

    “• Owners of limited category or primary category aircraft may follow the procedures outlined in 14 CFR part 11 to petition for exemptions from sections 91.315 or 91.325, as appropriate, to allow the owners to pay flight instructors to receive flight training in the owners’ aircraft.

    “•Owners of experimental aircraft may obtain deviation authority from section 91.319(a)(2) in accordance with section 91.319(h) for the purpose of receiving flight training from flight instructors in the owners’ aircraft.”

    So, for those pilots who are bumping against either insurance required annual flight reviews or the biannual review requirement and the CFI/CFII they must fly with — What is the path forward while the FAA fixes the bear trap their litigation team, leadership, and the 4th Circuit created? This is very murkey territory.

    Reply
    1. Tim Kramer Avatar
      Tim Kramer

      I think I’ll just stop giving instruction. I’m a senior, long standing instructor who just renewed my CFII-MEI-AGI ratings but I don’t want to risk non-compliance with some new interpretation. Not worth it after 3000 hours dual given.

      Reply
      1. David St. George Avatar
        David St. George

        This is exactly the outcome we feared from this confusing FAA reinterpretation of the CFI role (“the sky is falling!”). At the current time, there is nothing to fear here from “business as usual!” The real threat here – and as pilots we always analyze risk – is downstream when litigated cases start to change the liability environment. CFIs might be more vulnerable if regarded as “compensated for hire?” But this is all down the road a considerable way. I would encourage all CFIs to please continue with their usual valuable training routine. And remember, our comprehensive CFI insurance was created – and is recommended – for all members (amazingly affordable and comprehensive).

      2. Stan Avatar
        Stan

        I have only given 450 hours of dual since I became a CFI (Light Sport) 3 years ago, but similar to Tim, I am seriously considering giving up this rewarding part-time retirement ‘career’. I am flying on a Sport certificate and don’t have a commercial or medical. It isn’t too much of a stretch to predict that the FAA will regulate my training niche completely out of existence

        The downside is that I am actively training 7 students and they will have no other reasonable training option. However, I don’t wish to risk the potential liability.

        Once the dominoes begin falling, where does it all stop? Will ALL flight instruction eventually be considered for ‘compensation or hire’? That would be an easy stroke of the pen for the FAA… a stroke that would finish my ability to give flight instruction.

        Should that happen (and I do think it is possible) I would probably still continue to renew my CFI every two years because I do have grandchildren who are excited to fly with me and I would certainly enjoy teaching them how to fly for free. I wonder if the FAA would consider my enjoyment as ‘compensation’ and would issue a reprimand (or worse)?

    2. David St. George Avatar
      David St. George

      I know that asking “why?” is a “category error” (disallowed) when dealing with the FAA or federal statutes, but that is my primary confusion here. Are things so unsafe we need to enact a new policy that affects 106K CFIs and 27K experimental aircraft changing a policy in place for over 50 years?

      Reply
      1. John Avatar
        John

        And in addition to the 106K CFI/CFII who are in the FAA crosshairs… what about the 400K OTHER pilots who don’t get regular line checks and recurrent training that meets regulatory requirements for flight reviews from employers or some voluntary organizations? On the surface the judges of 4th Circuit cast a very wide gill net.

  3. Thom RIchard Avatar
    Thom RIchard

    Please update the article, it’s 91.315, 91.319 and 91.325. Not 61.315, 61.319, 61.325.

    Also, there is no provision in the regulations for a LODA in limited and primary aircraft. That’s because it was never illegal before to conduct flight instruction in those aircraft. Only in Experimentals.

    The Civil Aeronautics Board (CAB) specified in 1949 under the original commercial operator rules that “Student instruction… shall not be considered as the carriage of goods or persons for compensation or hire.” That should have settled this issue once and for all.

    Reply
  4. Richard G Avatar
    Richard G

    I hate to say it, but I actually agree with the judge. It is commerce if money changes hands. the pilot services are provided by the instructor and that is commercial activity.
    A waver is needed only if money changes hands. That is right, unfortunately you need to instruct for FREE or if you buy one of these planes know someone that will teach for FREE, or get a waver.
    It makes legal and logical sense unfortunately.
    If money changes hands it is commercial activity and requires a commercial certificate and likely a business license too.

    Reply
    1. Thom Richard Avatar
      Thom Richard

      There is nothing legal or logical about your ‘opinion’.

      Let’s hypothetically, for a moment, assume that flight instruction for hire is the carriage of a person for hire.

      1. Any instructor that relies on a third class medical or BasicMed to charge for services under their flight instructor certificate can no longer provide anything but ‘free’ flight instruction, as you cannot ‘carry persons for compensation or hire’ with less than second-class medical privileges. In other words, the most experienced portion of our CFI work force will be forced to retire immediately.

      2. Any flight school that provides cross country instruction to students is now ‘carrying persons for hire’ from point a to point B, which would require an air carrier certificate, 135, 121 etc. As you can see, this interpretation is completely impractical, not in accordance with law, and cannot stand.

      The FAA has explained this over and over since the end of WWII. They have always had the same opinion, until this recent ridiculous policy idea. Some examples:

      I mentioned what the CAB explained in 1949 in my previous post. 14 C.F.R. Part 119, ‘Certification: Air Carriers and Commercial Operators,’ is the current version of this regulation. 14 C. F.R. §119.1, ‘Applicability,’ also states that “this part does not apply to…Student instruction.”

      The 2008 Murphy legal interpretations explains: The preamble to this final rule explains that because the compensation received by a CFI acting as PIC or as required flight crewmember is for the flight instruction, and not for the carriage of persons or property, the flight instructor is exercising the privileges of a private pilot and must hold only a third-class medical certificate.

      The 2007 Kortokrax legal interpretation states: We agree that, for purposes of section 61.57(b), an authorized instructor providing instruction in an aircraft is not considered a passenger with respect to the person receiving instruction, even where the person receiving the instruction is acting as PIC. (The instructor must be current, qualified to instruct, and hold a category, class and type rating in the aircraft, if a class and type rating is required.) The instructor is not a passenger because he is present specifically to train the person receiving instruction. Neither is the person receiving instruction a passenger with respect to the instructor. This training may take place, even though neither pilot has met the 61.57(b) requirements.

      14 C.F.R. §91.409 makes the distinction between operating for compensation or hire, versus flight instruction for hire: “no person may operate an aircraft carrying any person (other than a crewmember) for hire, and no person may give flight instruction for hire in an aircraft which that person provides, unless within the preceding 100 hours of time in service the aircraft has received an annual or 100-hour inspection…”

      I can go on, but as you can see, classifying instruction for hire to fall under the carriage of a person for hire would require a complete FAR re-write. It would destroy the flight training industry and make obtaining your certificates cost prohibitive. Besides, it does nothing for safety. In fact, the FAA will have blood on their hands in short order if flight instruction cannot be conducted until exemptions or LODA’s have been acquired by every CFI and operator. This may be one of the dumbest ideas the FAA has ever come up with.

      Btw, it’s spelled waiver, not waver. Never mind the fact that §91.315, 319 and 325 are not waiverable. You can get a LODA (Letter of Deviation Authority) in 120 days for an experimental. You cannot get a deviation in a limited or primary category aircraft because those rules are not on the list for permissible deviations. Why? Because they were made for flight instruction for hire. It never has been illegal before. For 75 years!

      Why would you want to lock up the FAA with 40,000 Waiver/Deviation/Exemption petitions in a bureaucratic mess for no purpose whatsoever? That is nonsensical. People will die if this idiotic policy is adapted.

      Reply
      1. Richard G Avatar
        Richard G

        You are looking at FAA ‘regulations’. Time to look at the ‘laws’, not regulations when you play in federal court.
        This means the IRS definitions come into play as well as any other case ‘law’. This is what the judge had to look at. Not just what the FAA claimed was commercial operations, or even what the War Birds guys wanted.
        This case opened up a can of worms that is going to have far more effect then you can imagine.
        The FAA can not change the definition of commerce.
        There is a case going to the Supreme Court that may wipe out the requirement for any commercial certificate requirement. The case covers the limiting of free travel on rivers by requiring licenses or certificates. It can and will cross over to air travel.
        Should be interesting.

  5. gatorsailor Avatar
    gatorsailor

    Oh, by the way, I’m watching this navigable waters case because many states limit use of Sea Planes on the lakes. This case will remove those restrictions, and was mentioned in the case.

    Reply

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