[Federal Register Volume 88, Number 26 (Wednesday, February 8, 2023)]
[Rules and Regulations]
[Pages 8223-8224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02600]



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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2023-0290]


Notification of Policy for Implementation of the James M. Inhofe 
National Defense Authorization Act for Fiscal Year 2023 for Flight 
Training, Checking, and Testing in Experimental Aircraft

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation.

ACTION: Notification of policy.

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SUMMARY: This notification provides information on flight training, 
checking, and testing for compensation in aircraft that hold 
experimental airworthiness certificates in compliance with the James M. 
Inhofe National Defense Authorization Act for Fiscal Year 2023 (the 
Act), which was signed by President Joseph R. Biden on December 23, 
2022. This notification provides sample scenarios to illustrate when a 
letter of deviation authority (LODA) is required and scenarios when a 
LODA is not required.

DATES: The policy described herein is effective February 8, 2023.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this policy notification, contact Erin Cappel, General Aviation and 
Commercial Division, General Aviation Operations Section, (202) 267-
1100, or email [email protected], 800 Independence Ave. 
SW, Washington, DC 20591.

SUPPLEMENTARY INFORMATION: President Joseph R. Biden signed the James 
M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (the 
Act) (Pub. L. 117-263) on December 23, 2022. Section 5604 of the Act 
mandates self-enacting provisions related to flight training, checking, 
and testing in experimental aircraft. The Act states that flight 
instructors, registered owners, lessors, or lessees of an experimental 
aircraft shall not be required to obtain a letter of deviation 
authority (LODA) to allow, conduct, or receive flight training, 
checking, and testing in experimental aircraft, if:
    (1) The flight instructor is not providing both the training and 
the aircraft;
    (2) No person advertises or broadly offers the aircraft as 
available for flight training, checking, or testing; and
    (3) No person receives compensation for the use of the aircraft for 
a specific flight during which flight training, checking, or testing 
was received, other than expenses for owning, operating, and 
maintaining the aircraft.
    The Act provides relief from the Sec.  91.319(h) LODA requirement 
for certain persons who wish to receive training, checking, or testing 
in an experimental aircraft. Likewise, the Act supersedes the 2021 FAA 
Notification of Policy requiring owners and flight instructors in 
certain circumstances to obtain a LODA through a streamlined 
process.\1\ The Act does not enable persons to broadly offer flight 
training in these aircraft (e.g., advertising online or by word of 
mouth). Likewise, the Act limits the amount of compensation for use of 
the aircraft for a particular flight to only expenses for owning, 
operating, and maintaining the aircraft related to that training, 
checking, or testing flight.
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    \1\ 86 FR 36493 (July 12, 2021).
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    The instructor providing the training may receive compensation for 
their services but may not provide the aircraft. Persons who wish to 
broadly offer flight training, testing, or checking in experimental 
aircraft, or who seek financial gain for provision of an aircraft for 
those services, will still be required to obtain a LODA (FAA Order 
8900.1, Volume 3, Chapter 11, Section 1).

Sample Scenarios

    The FAA provides the following flight training scenarios to provide 
greater clarity on the impact of section 5604 of the Act and the 
situations in which a LODA is still required.
    Scenario A: An experimental aircraft owner wishes to hire a flight 
instructor to receive flight training in the owner's own aircraft. The 
owner intends to pay the flight instructor for the instruction. This 
operation is permissible under the Act without a LODA.
    Scenario B: An experimental aircraft owner seeks to provide flight 
training in their aircraft to others. This owner (or a person or entity 
action on their behalf) is willing to allow almost anyone who comes to 
receive flight training in the owner's aircraft, provided the person 
receiving training pays a fee. The owner advertises flight training on 
a website and/or offers these training flights to attendees at various 
air shows. This operation is not permissible under the Act and would 
continue to require a LODA.
    Scenario C: Four people co-own an experimental aircraft as part of 
a flying club. One of these people needs to get a flight review in the 
aircraft, so that person hires a flight instructor and pays the 
instructor for the training, plus pays a pre-arranged hourly rate that 
covers fuel used during the flight, as well as ongoing maintenance 
costs. Each co-owner pays the same hourly rate as a part of a co-
ownership contract. Members of the flying club do not expect monetary 
gain or profit, but rather the fee is in place to cover the costs of 
owning, operating, and maintaining the aircraft. This scenario is 
permissible under the Act without a LODA.
    Scenario D: An owner of an experimental aircraft starts a flying 
club and advertises to gain flying club members. This person charges a 
fee for ``club membership,'' and club members are given a flight 
training flight or series of flights in return. This fee yields a 
profit for the owner in excess of the compensation permissible under 
the Act. This operation includes broadly offered flight training, as 
well as an operator offering both the aircraft and the instructor. This 
operation is not permissible under the Act and would continue to 
require a LODA. Depending on the circumstances, this operation may also 
require some other kind of authorization from the Administrator, such 
as an air carrier or commercial operator certificate, or a commercial 
air tour letter of authorization.

Effect of Legislation on Streamlined LODA Process

    As noted in the July 2021 Federal Register notification, the FAA 
has long emphasized the importance of pilots being trained and checked 
in the aircraft they will operate. Specifically, the FAA underscored 
that it is critical that pilots understand and are familiar with the 
particular systems, procedures, operating characteristics, and 
limitations of the aircraft they will operate. This flight training is 
distinct from a situation where an aircraft with a special 
airworthiness certificate is ``held out'' broadly for training to 
individuals who pay for both the flight training and use of an aircraft 
that they will not have further access to upon completion of LODA 
training. It is also distinct form the broadly offered basic flight 
training that can be accomplished effectively and safely in any 
standard category aircraft.
    In the July 2021 Federal Register notification, the FAA established 
a streamlined process that allowed owners and flight instructors to 
apply for a LODA through an expedited process and accomplish certain 
flight training in experimental aircraft. Through this expedited 
process, the FAA was able to promote flight training for owners and 
those affiliated with the owners of experimental aircraft without 
overburdening the segment of the

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regulated community. The FAA maintained the more rigorous LODA process 
for flight training broadly offered to the public. With the passage of 
section 5604 of the Act, this streamlined LODA process is no longer 
necessary. The FAA will cease processing LODAs through this process. In 
addition, the FAA considers LODAs issued under this process to be 
terminated.\2\ Henceforth, the requirements of section 5604 will govern 
the flight training, checking, and testing that can be accomplished in 
experimental aircraft without a LODA. Flight training, checking, and 
testing that is broadly offered to the public, or that does not conform 
to the stipulations of the Act will continue to require a LODA.
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    \2\ The FAA notes that section 5604 addressed only experimental 
aircraft. The July 2021 policy pertaining to exemption relief 
remains valid for limited category and primary category aircraft.

    Issued in Washington, DC, on February 2, 2023.
Wesley L. Mooty,
Acting Executive Director, Flight Standards Service.
[FR Doc. 2023-02600 Filed 2-3-23; 8:45 am]
BILLING CODE 4910-13-P