Contact Your Representatives!

[mvivion]

Folks,
Many of you are somewhat familiar with the recent brew-haha generated by the Court decision in the FAA's citing of a P-40 "flight training" outfit in Florida.

If you haven't been paying attention because you assume it doesn't apply to you....you may want to pay attention.

First, please read this link: https://bydanjohnson.com/faas-big-stumble-while-the-debate-rages-students-dont-get-trained/

And, this one: https://www.aopa.org/news-and-media...directive-that-created-flight-training-crisis

So, what does this have to do with you, you may ask?

1. If you are operating an Experimental category aircraft, such as a Cub clone, you now have to get a "LODA" from the FAA to receive flight instruction in that aircraft....like a Flight Review.
2. If you are a Certificated Flight Instructor, this decision states clearly that, while instructing, you are "Operating an aircraft with passengers for compensation or hire". Which of course, implies that you now need to hold a Class 2 medical certificate.
3. If you are an Instructor in the LS category, you MAY no longer be able to instruct....unless you hold a Class 2 medical....and maybe not then.

What can we do about this?

AOPA has worked with Congressman Sam Graves and with Senator James Inhofe to introduce into the House and the Senate partner bills entitled "Certainty for General Aviation Pilots Act of 2021." Here's a short description from the Senate bill:

S. 2458, Certainty for General Aviation Pilots Act
The Certainty for General Aviation Pilots Act provides certainty that pilots engaged in flight training and flight testing are not considered as “carrying persons or property for compensation or hire.”

The companion bill in the House of Representatives is H.R. 4645

I encourage each of you to contact your Congressional Representatives, and encourage them to support both S. 2458 and H.R. 4645 in their respective chambers. At present, the FAA IS requiring a "LODA" for any instruction given in Experimental or Limited category aircraft. While this process is easy, it's a totally needless exercise, and meaningless. I submitted my request one evening at 5 PM and had the LODA the next morning.....

But, the potentially uglier side of this FAA action is that, very soon, it would appear that CFIs operating under Basic Med, and LS instructors may be prohibited from flight instructing.
The FAA has not, as yet, initiated a rule making on that, but the regulations are clear that a pilot, "operating an aircraft in carriage of persons for compensation or hire" must hold at least a second class medical. That would seem to now apply to ALL flight instructors.

Contact your representatives, folks, this one is bigger than most folks have assumed so far.

MTV

 

[frequent_flyer]

MTV - Simple question with no offence intended - Have you read the full text of a LODA issued to a CFI?

 

[mvivion]

MTV - Simple question with no offence intended - Have you read the full text of a LODA issued to a CFI?

Yes, I have one. The LODA is not really the issue I’m concerned with, though it’s unnecessary “paperwork” that never should have happened.

The result of this decision by FAA Legal is that many well qualified instructors may not be able to instruct legally. We’re being told “nothing has changed policy wise.” Read the court’s decision and the FAAs conclusion and tell me nothings changed.

MTV

 

[mvivion]

A news release from SAFE:

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[TD="class: editor-text"]Please contact your representatives in Congress and ask them to support CFIs as educators and defeat the new FAA interpretation of flight training as "flight for compensation and hire." The concurrent bills to correct the FAA's misinterpretation are both titled the "Certainty For General Aviation Pilots Act of 2021" and are HR 4645 and S 2458, sponsored by Rep. Sam Graves and Sen. Jim Inhofe.


If you are a CFI, or are involved with flight training in any way, please find and communicate your displeasure with this disruptive and safety-negative policy with your House of Representatives member and your two Senators.


An up-to-date summary of this bureaucratic boondoggle is below.

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FAA Digs In On
Definition Of CFI

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LODAs For Experimental, Primary
SAFE Warns "Worse May Come"

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The FAA has reinforced its newly-revised interpretation of a CFI's role, ignoring industry pressure and historical precedent. CFIs now legally operate "for compensation and hire," essentially charter pilots, when educating. This is contrary to FAA published policy and a long FAA history supporting the CFI's educational role. Recent opposition from every GA alphabet group does not seem to have made a difference to the FAA's new legal stance.


The revised policy upsets years of agency policy defining CFIs as educators, rather than pilots 'carrying persons or property for compensation or hire.' Although the change sounds semantic, it has already resulted in the imposition of a requirement for CFIs to get special approval to instruct in any experimental, primary or limited category aircraft. (It does not apply to normal category production aircraft typically used at a flight school.)


That approval, called a Letter Of Deviation Authority (LODA), can be requested by either the aircraft owner or the CFI.


In addition, SAFE is warning that CFIs who now or expect to instruct with Basic Med may be denied payment for their CFI services unless they get a second-class medical.


Owners of Limited category aircraft (warbirds) only can shortcut the required LODA process by using an exemption granted in August to EAA; the exemption is instantly granted when the owner enters his request in the comments section of the FAA's [COLOR=inherit !important][FONT=inherit !important]Regulations.gov[/FONT][/COLOR] docket. EAA membership is not required. The LODA requirement remains for instruction in experimental or primary aircraft.


The bureaucratic snafu sprang from the narrowly defined Warbird Adventures case in Florida earlier this year. In announcing his decision, the federal judge upheld the FAA's cease-and-desist order but offered an obiter dictum (non-binding guidance) declaring that “when the student is paying for the instruction, the student is being carried ‘for compensation.'" The FAA promptly adopted that as policy, even though it directly contradicts years of agency policy on CFI status

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[frequent_flyer]

Yes, I have one. The LODA is not really the issue I’m concerned with, though it’s unnecessary “paperwork” that never should have happened.

The result of this decision by FAA Legal is that many well qualified instructors may not be able to instruct legally. We’re being told “nothing has changed policy wise.” Read the court’s decision and the FAAs conclusion and tell me nothings changed.

MTV

I don't maintain that nothing has changed. Certainly the situation regarding receiving or giving instruction in experimental aircraft has changed. FAA advises me in the LODA what I can and cannot do as an instructor. I see nothing in the LODA that requires me to have a class 2 medical. Wouldn't that have been specified if required? A LODA is an approval to deviate from published policy and/or regulation.

The LODA goes into detail on what I can and cannot be compensated for but, again, no requirement for a medical to receive the allowed compensation. I'm attaching an extract for those that may not have seen the LODA itself.

Sure, please call your congressman and try to kick some sense into the people who want to control our existance but until that happens I'm going to assume the LODA defines what I can and cannot do.

 

[mvivion]

I don't maintain that nothing has changed. Certainly the situation regarding receiving or giving instruction in experimental aircraft has changed. FAA advises me in the LODA what I can and cannot do as an instructor. I see nothing in the LODA that requires me to have a class 2 medical. Wouldn't that have been specified if required? A LODA is an approval to deviate from published policy and/or regulation.

The LODA goes into detail on what I can and cannot be compensated for but, again, no requirement for a medical to receive the allowed compensation. I'm attaching an extract for those that may not have seen the LODA itself.

Sure, please call your congressman and try to kick some sense into the people who want to control our existance but until that happens I'm going to assume the LODA defines what I can and cannot do.

But, the point is, the requirement for a LODA was NOT the only thing this decision changed. Read the last paragraph of that last quote from SAFE: The FAA has accepted the judges orbiter dictum, which says a flight instructor is “carrying a passenger for compensation or hire.”

And, the LODA states that an instructor must be appropriately rated.

To carry ANYONE “for compensation or hire”, a Flight Instructor, like any pilot, must possess a second class medical. So, I’m an instructor, operating under Basic Med. as are numerous others. I could qualify for a second class, I choose not to. Oh well.

But, remember that whole new category of aircraft, pilots and instructors, called Light Sport? Guess what?

At Oshkosh, the FAA Administrator addressed a full house at the AOPA tent. He said, basically, that he’s more upset than we are about this.

The point is, the FAA has for decades, held that a flight instructor giving instruction is specifically NOT “carrying passengers for compensation or hire”. FAA Legal just changed that long standing policy with the stroke of a pen, and the Administrator can’t reverse it.

Contact your Congressional Representatives.

MTV

 

[wireweinie]

If this stands, consider what may happen in the future. What if the faa just decides to stop passing out the LODAs. If they can just change decades of procedure on a whim what's to stop them from changing more?

Web

 

[skywagon8a]

At Oshkosh, the FAA Administrator addressed a full house at the AOPA tent. He said, basically, that he’s more upset than we are about this.

He is incompetent as an administrator. He is the top #1 dog in the FAA. He should have fixed this before it got out of hand. He should have had his top legal people have a chat with the judge explaining the FARs. This clearly was not done, or the FAA legal people are also not performing as expected. The judge could have then adjusted the words in his decision to be applicable to the case which was brought before him.

Imagine getting up in front of the EAA/AOPA group and admitting your incompetence. He should have been hiding in his Washington abode.

I wonder if he will address the fact that none of his airline pilots are required to have a CFI in order to instruct airline pilots? They just get by with an ATP. There is nothing in the ATP requirements that covers basics of instruction. Yet the regulations allow it.

Sorry for the rant, someone had to say it.

 

[GreggB]

If this stands, consider what may happen in the future. What if the faa just decides to stop passing out the LODAs. If they can just change decades of procedure on a whim what's to stop them from changing more?

Web

Been that way for decades, welcome to life in a nation run under administrative law. Noticing a little late to complain.

 

[mvivion]

He is incompetent as an administrator. He is the top #1 dog in the FAA. He should have fixed this before it got out of hand. He should have had his top legal people have a chat with the judge explaining the FARs. This clearly was not done, or the FAA legal people are also not performing as expected. The judge could have then adjusted the words in his decision to be applicable to the case which was brought before him.

Imagine getting up in front of the EAA/AOPA group and admitting your incompetence. He should have been hiding in his Washington abode.

I wonder if he will address the fact that none of his airline pilots are required to have a CFI in order to instruct airline pilots? They just get by with an ATP. There is nothing in the ATP requirements that covers basics of instruction. Yet the regulations allow it.

Sorry for the rant, someone had to say it.

Not at all, Pete, we’ll said! I was stunned when I heard him say that.

MTV

 

[wireweinie]

Been that way for decades, welcome to life in a nation run under administrative law. Noticing a little late to complain.

Let me introduce myself. My screen name is 'wireweinie'. My nickname is Web. I live in Alaska. I'm Irish/German heritage, and a former Marine. Perhaps you can go back and read some of my posts on a variety of subjects. One thing you'll notice is my desire to force the faa to work within their own rules. As a matter of fact I push back so hard sometimes that people on this site, that I have monumental respect for, occasionally have to step in to keep me fighting from a rules basis and not just from my gut.

Since I try to keep focused on electrical issues on this forum, I have few comments on the 'pilots' side of things. But rest assured, I am well aware of how the faa operates and I have been 'noticing' their failings for many years. As a matter of fact, I made my original statement statement to point out that once the feds start to restrict our operations, they rarely stop unless forced to.

Web

 

[frequent_flyer]

To carry ANYONE “for compensation or hire”, a Flight Instructor, like any pilot, must possess a second class medical.

Where is that stated and how does it take precedence over 14 CFR 61.23 (b)(5)?

(b)Operations not requiring a medical certificate. A person is not required to hold a medical certificate -

(5) When exercising the privileges of a flight instructor certificate if the person is not acting as pilot in command or serving as a required pilot flight crewmember;

 

[mvivion]

Where is that stated and how does it take precedence over 14 CFR 61.23 (b)(5)?

(b)Operations not requiring a medical certificate. A person is not required to hold a medical certificate -

(5) When exercising the privileges of a flight instructor certificate if the person is not acting as pilot in command or serving as a required pilot flight crewmember;

Youre obviously not understanding what is going on. The Chief Legal Counsel of the FAA has now “interpreted” that a flight instructor is “carrying passengers for compensation or hire” .

The point is, the regulations CAN be changed, and they ARE “interpreted” by FAA Legal.

The subject legislation is intended to retain the very regulations you cited. Whereas FAA Legal has now stated those must change.

MTV

 

[frequent_flyer]

The Chief Legal Counsel of the FAA has now “interpreted” that a flight instructor is “carrying passengers for compensation or hire” . MTV

I do understand that.

The point is, the regulations CAN be changed, and they ARE “interpreted” by FAA Legal. MTV

Yes, can be changed but have not yet been changed. There is simply no ambiguity in 14 CFR 61.23 (b)(5) and I'm not aware of any interpretation that would change the intent of this specific regulation.

The subject legislation is intended to retain the very regulations you cited. Whereas FAA Legal has now stated those must change. MTV

Exactly - must be changed in the future but until changed the current regulation applies.

I'm not saying that congressional legislation is not required to head off this problem. It is simply my position that I do not currently need a class 2 medical to instruct. You have shown no evidence that this position is invalid.

 

[mvivion]

I do understand that.



Yes, can be changed but have not yet been changed. There is simply no ambiguity in 14 CFR 61.23 (b)(5) and I'm not aware of any interpretation that would change the intent of this specific regulation.



Exactly - must be changed in the future but until changed the current regulation applies.

I'm not saying that congressional legislation is not required to head off this problem. It is simply my position that I do not currently need a class 2 medical to instruct. You have shown no evidence that this position is invalid.

Ummm, I guess I’m confused. I don’t think I ever said that you right now need a second class medical to instruct. I’m quite well aware of the long standing regulations and agency policy involved.

My point is that regulations and policy CAN be changed. The first step in that process MAY have been taken by FAA.

All I’m asking is that we all contact our Legislators in an effort to head that off.

MTV

 

[frequent_flyer]

But, the point is, the requirement for a LODA was NOT the only thing this decision changed. Read the last paragraph of that last quote from SAFE: The FAA has accepted the judges orbiter dictum, which says a flight instructor is “carrying a passenger for compensation or hire.”

And, the LODA states that an instructor must be appropriately rated.

To carry ANYONE “for compensation or hire”, a Flight Instructor, like any pilot, must possess a second class medical. So, I’m an instructor, operating under Basic Med. as are numerous others. I could qualify for a second class, I choose not to. Oh well.

But, remember that whole new category of aircraft, pilots and instructors, called Light Sport? Guess what?

At Oshkosh, the FAA Administrator addressed a full house at the AOPA tent. He said, basically, that he’s more upset than we are about this.

The point is, the FAA has for decades, held that a flight instructor giving instruction is specifically NOT “carrying passengers for compensation or hire”. FAA Legal just changed that long standing policy with the stroke of a pen, and the Administrator can’t reverse it.

Contact your Congressional Representatives.

MTV

This entire post is presented as though it defines the situation that existed as soon as the FAA accepted the Judge's decision. Nothing about this post suggests that this is the situation that may eventually exist if FAA or congress takes no action to correct it.

 

[mvivion]

Frequent,

You apparently haven’t been paying much attention to the “direction” the FAA has been taking lately.

MTV

 

[astjp2]

Youre obviously not understanding what is going on. The Chief Legal Counsel of the FAA has now “interpreted” that a flight instructor is “carrying passengers for compensation or hire” .

The point is, the regulations CAN be changed, and they ARE “interpreted” by FAA Legal.

The subject legislation is intended to retain the very regulations you cited. Whereas FAA Legal has now stated those must change.

MTV

And that is why FAA regulations are not law, only the legislature can enact laws. Even good ole sleepy joe does not enact laws, that is why he writes policies...
And therefore regulations do not have the same bite or sting as breaking a law. Unlike the irs regulations which are backed by Congress who are able to take property and varnish wages. Something the faa is not allowed to do. Takes a judgement if someone refuses to compitulate to an fa a legal ruling.
Stupid autocorrect sure messes with the grammar on here. Tim

 

[mvivion]

And that is why FAA regulations are not law, only the legislature can enact laws. Even good ole sleepy joe does not enact laws, that is why he writes policies...
And therefore regulations do not have the same bite or sting as breaking a law. Unlike the irs regulations which are backed by Congress who are able to take property and varnish wages. Something the faa is not allowed to do. Takes a judgement if someone refuses to compitulate to an fa a legal ruling.
Stupid autocorrect sure messes with the grammar on here. Tim

Yes, we’ll, try getting seriously crosswise with one of those “meaningless” policies/regulations, and see how the “bite” feels then.

MTV

 

[RVBottomly]

And that is why FAA regulations are not law, only the legislature can enact laws. Even good ole sleepy joe does not enact laws, that is why he writes policies...
And therefore regulations do not have the same bite or sting as breaking a law. Unlike the irs regulations which are backed by Congress who are able to take property and varnish wages. Something the faa is not allowed to do. Takes a judgement if someone refuses to compitulate to an fa a legal ruling.
Stupid autocorrect sure messes with the grammar on here. Tim

Uh, no. Congress passed the Federal Aviation Act, so that’s a law. In that law Congress delegated authority to the FAA to make regulations consistent with the Act. Congress also defined crimes for violations of certain sections and regs.

It very much is analogous to the IRS or most any other regulative agency established by Congress.


Sent from my iPhone using SuperCub.Org mobile app

 

[dgapilot]

Something to consider, FAA regulations, as with any other regulations written by Administrative agencies (Executive branch) fall into Administrative Law, not Criminal law. With Administrative law, it is only a civil infraction, but you are considered guilty until proven innocent. The majority of FAA cases are only possible through self incrimination. Never volunteer any information to FAA if you have the slightest inclination you are under investigation.


Sent from my iPhone using Tapatalk

 

[mvivion]

Something to consider, FAA regulations, as with any other regulations written by Administrative agencies (Executive branch) fall into Administrative Law, not Criminal law. With Administrative law, it is only a civil infraction, but you are considered guilty until proven innocent. The majority of FAA cases are only possible through self incrimination. Never volunteer any information to FAA if you have the slightest inclination you are under investigation.


Sent from my iPhone using Tapatalk

Well, that's good advice, but not just under administrative law....that logic applies if you're being accused of ANY infraction. Don't lie, but don't give them any more information than is required.

MTV