Experimental (ELSA / E-AB) No Longer Allowed for Flight Training??

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Marc Zeitlin

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So I sent an email for my LODA for my COZY MKIV, as I'm going to need a BFR in November and had no clue how long it would take to get it. 7 days after sending the email, I received a response with a PDF attachment to print out and put in the plane.

As stupid as this whole situation is, the FAA has done a decent job of providing a solution, at least for E-AB aircraft. It was painless, took 5 minutes and cost nothing, no questions asked. The wording is exactly as has been posted before.

I choose to interpret the LODA wording as allowing BFR's, as my BFR will be given in MY plane, which is the plane I fly 98% of the time. That's pretty specific. Plus, we'll be performing instrument approaches with the equipment _I_ have in MY plane, and will be practicing engine out procedures, which are also completely specific to a COZY MKIV.

One more data point.
 

PagoBay

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So I sent an email for my LODA for my COZY MKIV....
Marc...
Glad you got your LODA and in a timely manner, too.
Do you continue to hold your position regarding compensation being a key element? Your posts were indicating that without compensation training can be provided under the regs. Or was that view applicable only to S-LSA?
 

PagoBay

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AOPA TURNS TO CONGRESS TO SOLVE FAA-CREATED FLIGHT TRAINING CRISIS
July 22, 2021By AOPA ePublishing staff
Editor's note: This article was updated July 23 with bill numbers for the corresponding legislation, links to the bills, and clarification of the LODA process.
Sen. Jim Inhofe (R-Okla.) and Rep. Sam Graves (R-Mo.) have introduced the Certainty for General Aviation Pilots Act of 2021 in both houses to clarify “that individuals engaged in aircraft flight instruction or testing, including phased testing of experimental aircraft, are not operating an aircraft carrying persons or property for compensation or hire.”

 

Rhino

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Thanks, PagoBay. The text of the bills isn't available yet.
 

Hot Wings

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The text of the bills isn't available yet.
The wording will be important. Ironically, as described in the article it will make instruction in the P-40 that started all of this ........... legal.

I hope this doesn't turn out to be another case of swatting the hornets nest.
 

Marc Zeitlin

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Do you continue to hold your position regarding compensation being a key element?
Sure. It's the thing that prompted this whole bit of nonsense. No compensation, no issue. Now, as has been discussed as well, the FAA has a somewhat ridiculously expansive view of "compensation", so whatever it is you do, you have to ensure that it's not going to be interpreted as compensation by the FAA, but if the FAA agrees that you weren't compensated, then there's no "for hire" going on.

Your posts were indicating that without compensation training can be provided under the regs. Or was that view applicable only to S-LSA?
That was my position, and still is, but I don't know enough about S-LSA to have an opinion - my opinion is only for E-AB (or other E) aircraft.
 

PagoBay

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...the FAA has a somewhat ridiculously expansive view of "compensation", so whatever it is you do, you have to ensure that it's not going to be interpreted as compensation by the FAA, but if the FAA agrees that you weren't compensated, then there's no "for hire" going on.

Seems to me that there is no way, based on the new regulation and those "expansive" terms for compensation, that anyone could possibly "ensure" the FAA will "agree that you weren't compensated".

So for now, this looks like any rating or operating privilege gained in an E-AB would be subject to being rendered invalid and the CFI at risk of penalty.

If that rating or privilege happened to at a later time involve an injury or property damage, then an insurance policy could be rendered invalid.

Finding it hard to understand your present position.
 

Rhino

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I understand it. It's very difficult to understand how the FAA could so drastically reverse course and totally defy previous policy and practice. It defies all logic, particularly when it so obviously threatens safety. It's easy to understand how a rational person could assume there's more to the story, and that there must be, indeed has to be, something else going on behind the scenes that's preventing us from seeing the big picture. The problem is the disconnect between such rational people and the FAA, because it's very obvious that rationality is definitely not a primary factor at the FAA as regards to this issue right now. But there's no difficulty in seeing how a logical person could have difficulty accepting this, because it completely defies logic. I have a hard time accepting how people, even people in government, could really be that stupid, but that seems to be getting more and more common lately. I blame social media, video games, glasnost, and leaving the gold standard, but we aren't supposed to talk politics here, so I can't elaborate.
 

PagoBay

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I understand it. It's very difficult to understand how the FAA could so drastically reverse course ...
My problem is not understanding why this is situation is problematic. Everyone here gets that.

The point that I am focused on is how a "no compensation" arrangement could ever pass as sufficient to allow what the FAA has now ruled is not allowed, ie new ratings or privileges, even in some sort of "no compensation" situation. Given that Compensation has been broadened by the FAA far beyond reason. We are presently bound by this framework.

Marc does not offer any such example for us to consider. So I am wondering just how would anyone be able to "ensure" and even expect FAA would "agree".

Advice and suggestions should be practicable. There appear to be risks associated with following that advice. Am I wrong to say so?

This is my question to Marc. I don't understand how his position could ever be successful in actual practice under the present set of FAA regs.

Granted we all hope to see Congress act prudently and quickly, BUT for now I would like to know what I may be missing here.
 

Marc Zeitlin

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Finding it hard to understand your present position.
My sister gave me the following shirt:


which sometimes has useful applications in everyday life :).
Marc does not offer any such example for us to consider.
Marc is under no obligation to present information regarding this, or any other question. But he'll try, because it's a useful question to answer.
So I am wondering just how would anyone be able to "ensure" and even expect FAA would "agree"... This is my question to Marc. I don't understand how his position could ever be successful in actual practice under the present set of FAA regs.
I will suggest you read the "Hancock Letter" from the FAA Office of Chief Counsel:


the second and third paragraphs of which describe things that MAY be considered "of value", and which MIGHT be considered compensation. Everything's on a case-by-case basis, and we need to recall that there are no (and have never been any) "training police". In the case that started this whole discussion, the folks in questions continued to do stupid things that the FAA warned them was stupid and against regs, so basically asked to be whacked upside the head with a 2x4 eventually.

I would argue that if my friend who flies F-16's and F-35's at Edwards AFB, owns his own COZY MKIV, is a CFII, and has thousands of flight hours with no desire or need to log time for ratings, spends an hour giving me a Flight Review in either my plane or his, and I don't pay him, don't buy him lunch, and don't even say "Jeez, Fred - you did a GREAT job of training me there", give him no goodwill in the form of expected future value, then nothing of value was provided, and nothing was done that violated the FAA's definitions and rules.

I would argue that a previous poster who asked whether he could train his daughter would not be receiving anything of value from her, as even the goodwill engendered would not be in the form of expected future value.

So there's two examples, anyway.

Or you could just spend 5 minutes, get the LODA, and not have to worry about it.
 
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TFF

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The problem is Congress does not understand the problem. Congress is a popularity contest, while they might want to do good, there is more people not involved with aviation, which is the side they will side with.

It’s a game of don’t poke the bear, and we keep poking. Thinking about it, the FAA was probably hammered with the big Reno crash by Congress, but they really held a line. That was way more public than this. Whining got us into this, and whining more is not going to get us out. I am not happy with what has happened; it will a also unrecoverable without loosing more. Do we want that? If you wanted to fly with no license, ok, but if you get caught you should not be able to get out of it. Pay the price, don’t try and weasel your way out.

Should we be speaking up? Yes, but not as a complaint. We need to go in with a better idea; a reason why it’s better to do it a certain way. Proactive, not I want it the way it was.
 

PagoBay

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Marc is under no obligation to present information regarding this, or any other question. But he'll try, because it's a useful question to answer.
So there's two examples, anyway.
Or you could just spend 5 minutes, get the LODA, and not have to worry about it.
Thanks Marc... I have doubts that someone setting up "to argue" with an FAA rep who already has a rule saying that even flight hours accumulated are compensation, is going to result in the desired outcome in many cases. A BFR comes under the LODA even if an E-AB.

But for my case, not much help. The LODA does not seem to override the restriction that an E-AB may not be used for new ratings or privileges. This would preclude using an E-AB for tailwheel endorsements and ASES rating.

If I am incorrect here, please let me know. No obligation, of course. I am only trying to learn.

Let's hope Congress will pay attention to details. But I don't expect a perfect outcome there. Let's see.
 
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Marc Zeitlin

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... A BFR comes under the LODA even if an E-AB...
Don't know what that means..

The LODA does not seem to override the restriction that an E-AB may not be used for new ratings or privileges. This would preclude using an E-AB for tailwheel endorsements and ASES rating.
In reviewing 14 CFR Part 91.319, I see no paragraph precluding using E-AB aircraft for new ratings or privileges. I assume you're referring to the single sentence in the FAA letter that stated:

The FAA generally limits LODAs to training that can only be accomplished in aircraft with experimental certificates and directs its inspectors that, with a few exceptions, LODAs should not be issued to permit flight training in experimental aircraft leading toward the issuance of a pilot certificate, rating, or operating privilege.​

If I am incorrect here, please let me know.
If you can point me to specific wording regarding preclusion of new ratings or privileges

So the wording in my LODA is:

The owner (or delegate) or authorized instructor listed at the bottom of this document is authorized this Letter of Deviation Authority (LODA) in accordance with the provisions of Title 14 Code of Federal Regulations (CFR) Section 91.319(h) to the extent necessary to receive or provide aircraft-specific training in an aircraft certificated in the experimental category in accordance with the limitations and provisions of this LODA.​

So the only limitation I see is that the training must be "aircraft specific", whatever the f**k that means - the LODA does not restrict ratings or privileges, and whatever "direction" the FAA has given to inspectors, the LODA doesn't say what the letter indicates USUALLY shouldn't happen.

I choose to interpret the LODA as allowing any training that is specific to my aircraft in that a COZY MKIV is different than other aircraft with a different IP and different operating procedures, so a Flight Review in any other plane is useless for training me (or anyone else) to fly a COZY MKIV.

I would say that if the tailwheel plane you want to get checked out in (say, a Pitts S2-A experimental, if such a thing exists, which my hangar mate used to have in certified form, and which took him a week of training to get good at flying) handled so differently from other tailwheel planes on landing that any training in it could easily be considered "aircraft specific". One could easily construct a reasonable situation for many other aircraft.

And the worst that would happen is that they'd write you a letter and say "don't do that again", if they ever became aware of the training and had kittens over it. You're not running a commercial operation doing something that you were twice told not to do under penalty.

My father was a CPA. He always told me that if you interpret the IRS regulations incorrectly, but your interpretation isn't absurd, you operate in good faith and don't try to defraud anyone (particularly, the government) that the worst that will happen is they'll make you pay back taxes, interest, and penalty. No one (well, almost no one) goes to jail for making an honest mistake. I choose to interpret the FAA regulations in the same manner - if I have a rational argument (even if it's eventually determined to be "wrong", per the FAA's interpretation) operate honestly and openly, and do the best I can, I believe I'll be fine and so will my CFII. Naive? I don't think so. But maybe it's naive to believe that :). But I find it hard to believe that the FAA is going to try to violate 50,000 Experimental aircraft operators.

My $0.02.
 

Vigilant1

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I'm fairly sure that AOPA and EAA will both soon issue some clear interpretations of the existing morass. For those worried about whether their own particular interpretation is "reasonable," they might gain some comfort by abiding by the interpretation that is eventually published by these groups, as it will be one more thing you can point to as bolstering your case that you are behaving reasonably.

The parallels with the tax code seem (sadly) appropriate. We are left to our own to interpret the IRS regulations to fit our own situations, and even if we were to (miraculously) make contact with an individual at the IRS for advice and follow their guidance, we can later be found to be in the wrong (unless the guidance is in a formal "letter ruling').
 
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rv7charlie

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So the only limitation I see is that the training must be "aircraft specific", whatever the f**k that means - the LODA does not restrict ratings or privileges, and whatever "direction" the FAA has given to inspectors, the LODA doesn't say what the letter indicates USUALLY shouldn't happen.
What it means is that the FAA *was* ok with us getting trained in our experimentals, until the court told them they couldn't be ok with it. So their response was to agree with the 'letter of the law' the court created with their ruling (FAA had no real choice), and then proceeded to issue workarounds using existing rules in the form of LODAs, to each individual that asks.

The only reason for 'aircraft-specific' is that LODAs are specific, by definition. In order to do an end run around the court's 'blanket' ruling, they're using their LODA power tens of thousands of times to beat the ill-conceived blanket ruling of the court.

If they really wanted what the court ruled, none of us would be getting those LODAs.
 

12notes

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What it means is that the FAA *was* ok with us getting trained in our experimentals, until the court told them they couldn't be ok with it. So their response was to agree with the 'letter of the law' the court created with their ruling (FAA had no real choice), and then proceeded to issue workarounds using existing rules in the form of LODAs, to each individual that asks.

The only reason for 'aircraft-specific' is that LODAs are specific, by definition. In order to do an end run around the court's 'blanket' ruling, they're using their LODA power tens of thousands of times to beat the ill-conceived blanket ruling of the court.

If they really wanted what the court ruled, none of us would be getting those LODAs.
The court said no such thing, the court did not issue any blanket ruling, it issued a very specific ruling on limited category aircraft, not experimentals. The judge was very specific that the particular ruling on a motion to overturn a cease and desist order was very specific to the actual case, which has not gone to trial. The court stated that the FAA did not make any exception for training in limited category aircraft (91.315), and pointed out, as an example, that the FAA did allow it in LSA regulations (91.313). It made no mention of Experimental category aircraft, nor did it mention AC90-109A, which the FAA issued in 2015 and specifically allows training in Experimental aircraft. The ruling was not published in the federal register, it was not precedential. The AOPA and EAA decided to make a big deal of it, when the rational course of action was to ignore this minor, unpublished ruling and continue with the existing written recommendation of the FAA. The FAA bureaucrat who wrote the letter decided to change the rules when the EAA and AOPA forced a response.

It's amazing that some organizations don't understand that when you get what you want, you need to stop arguing, there's nothing to gain but everything to lose. We had what we wanted, but someone had to keep arguing.

The court does not force the FAA to prosecute everyone who violates a FAR or anyone operating in a gray area, or prevent the FAA from issuing guidelines for undefined issues in the FARs.
 

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It's amazing that some organizations don't understand that when you get what you want, you need to stop arguing, there's nothing to gain but everything to lose. We had what we wanted, but someone had to keep arguing.

The EAA and AOPA were acting no different to many US Manufacturing unions who would rather see another strike and another payrise and the company go out of business due to unmanagable costs, rather than sit at the table and actually talk with company management to see if there is a way to keep the company afloat and the employees employed.

it's not unique to the EAA and AOPA. Most advocacy organisations fall into the trap that if they aren't advocating for SOMETHING, right NOW, they're not needed.
 

12notes

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Except that EAA and AOPA did not bring this on. This is not a case of the advocacy groups ginning up a crisis to justify their existence.
In the notification that banned training in E-AB without a LODA, it specifically states this:
"After the Court dismissed the petition for review, several industry groups requested that the FAA publish a statement explaining the impact of the decision and providing clarification regarding flight training in general and flight training for compensation in certain aircraft that hold special airworthiness certificates.2 The FAA is issuing this notification in response to the request from industry "

Before this notification, the last word from the FAA was AC90-109A , which specifically allowed training in E-AB aircraft. Without this notification, E-AB training would be allowed without a LODA. If the EAA and AOPA (and the other industry groups) didn't demand this response, we wouldn't be having this conversation at all. They definitely brought this on.
 
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