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)!
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