The full breadth of general aviation aircraft offers something to suit every potential pilot—and that includes those that fall under special airworthiness categories. The rising popularity of experimental aircraft, such as the RV series from Van’s Aircraft, turns upon their high performance-to-cost ratio and a serious fun factor driven by models that range from fabric-covered biplanes to single-pilot jets. Warbirds may also fall into this category, often operating under an experimental-exhibition airworthiness certificate, to allow for the continued flight demonstration and education that these aircraft provide.
One of the barriers to entry for would-be pilots of experimental aircraft has been the need to find professional flight training in type. In general, experimental aircraft are not allowed to be used for commercial, passenger-carrying operations. For decades, type-specific groups have offered access to high-quality instruction through an exception granted by the regulations that govern commercial operations in regards to flight training. Specifically, FAR 119.1(e)(1) exempts “student instruction” from regulations governing commercial operations under common carriage. The FAA’s previous guidance has been to look upon the student not as a passenger but as an active participant in the flight—and party to the safe outcome of the flight in a way that a passenger cannot be. For limited- and experimental-category aircraft, a further exemption is required from the agency before flight training can be conducted, owing to the special nature of the aircraft involved, unless the instruction takes place in the student’s own aircraft.
Warbird Adventures stood accused of offering flight instruction in a limited-category aircraft without the required exemption under FAR 91.315. The FAA issued a cease-and-desist order, which Warbird Adventures contested. Following a decision by the US Court of Appeals not to review the case, a can of worms exploded because of the uncertain wording contained in the two-page decision. On April 2, 2021, GA groups including EAA, AOPA, the International Council of Air Shows, the National Association of Flight Instructors, the North American Trainer Association, and the General Aviation Manufacturers Association filed an amicus curiae brief asking for clarification from the FAA that the decision would not alter flight instruction in general, and “avoid unintended, adverse impacts to safe and compliant flight instructors and [limited-category-aircraft] owners who otherwise would not have a voice before the Court.”
The response by the FAA issued on June 4 from outgoing associate administrator for aviation safety Ali Bahrami gave a “perspective” that the agency noted would be followed by a more “formal” policy statement, according to AOPA. In part, the letter stated that “a flight instructor who is operating a limited category aircraft and carrying a paying student is acting contrary to federal regulation, even if that compensation is for the instruction and not carriage.” “Furthermore,” according to AOPA, “the FAA’s letter stated that the same prohibitions may extend to an instructor providing flight training in an experimental or primary category aircraft.”
The reply from the GA groups who had filed the “friend of the court” brief in April was immediate. A letter sent on June 8 outlined four areas where serious logjams and administrative headaches would ensue—at the cost of reduced safety—should the June 4 letter create similar formal policy:
“1. Prohibiting owners of experimental aircraft from receiving flight instruction in their own aircraft without specific FAA permission to do so in the form of a Letter of Deviation Authority (LODA): With nearly 40,000 experimental category aircraft on the registry, Flight Standard District Offices would quickly be overwhelmed by applications for a LODA where there is no legal requirement to have one. That creates an additional barrier to aviation safety and is contrary to FAA’s own mission.
“2. Prohibiting owners of more than 300 limited category aircraft from receiving flight instruction in their own aircraft with specific FAA permission in the form of an exemption: Never before has the FAA required limited aircraft owners to obtain an exemption to be trained in their own aircraft, nor is there a legal requirement to do so. This change will not further aviation safety.
“3. Prohibiting owners of primary category aircraft from receiving flight instruction in their own aircraft without specific FAA permission to do so in the form of an exemption: The FAA does not have policy in place to issue such an exemption and it is unknown how long it would take to issue such exemptions.
“4. Limiting access to flight training in a specific make and model of an aircraft: The FAA must issue a policy affirming the pathways that allow owners to obtain training in their own aircraft. To not do so creates an immediate and significant hindrance to flight safety.”
“Why the FAA would want to diminish the flight training that made the US aviation system the safest in the world boggles the mind, but that’s what these new policies will do,” said Jack J. Pelton, EAA’s CEO and chairman of the board. “For years, the FAA has correctly stated that training in the specific make and model of aircraft to be routinely operated, with a well-qualified instructor, is the best training. These policies would unnecessarily limit that access and measure of safety.”
“We need to get this flight training issue cleared up as quickly as possible and by any means possible,” said AOPA president and CEO Mark Baker. “I can assure you we will not stop until this situation is resolved and common sense prevails.”