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Federal Register / Vol. 86, No. 130 / Monday, July 12, 2021 / Rules and Regulations
experimental category, and primary category aircraft. It also provides guidance on how flight training for compensation can be accomplished in these aircraft in compliance with regulations and establishes a process for owners of experimental aircraft to obtain a letter of deviation authority to receive and provide compensation for flight training in their experimental aircraft.
The policy described herein is effective July 12, 2021.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning this policy notification, contact Erin Cappel for information about Letters of Deviation Authority and Thomas TJ
Leahy for information about exemption, General Aviation and Commercial Division, General Aviation Operations Branch, 202 2671100, or email 9-AFS800-Correspondence@faa.gov, 800
Independence Ave. SW, Washington, DC 20591.
SUPPLEMENTARY INFORMATION:
DATES:

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I. Background On April 2, 2021, the United States Court of Appeals for the District of Columbia Circuit dismissed a petition for review of the FAAs emergency cease and desist order against Warbird Adventures, Inc. and Thom Richard hereinafter Warbirds, ordering that they cease and desist from operating their limited category aircraft in violation of 91.315 of title 14 of the Code of Federal Regulations 14 CFR. In this case, Warbirds maintained a publicly available website that advertised opportunities to fly in Warbirds limited category aircraft at upcoming airshows and allowed members of the public to book flights in exchange for substantial amounts of money. Section 91.315 states that no person may operate a limited category aircraft carrying persons or property for compensation or hire.
Before the Court, Warbirds argued that it was conducting flight training for compensation in its limited category aircraft, which it claimed is not prohibited under 91.315.1 The FAA
responded that, under the plain language of 91.315, flight training for compensation constitutes operating a limited category aircraft carrying a person for compensation or hire and, therefore, is a violation of the regulation. After the Court dismissed the petition for review, several industry groups requested that the FAA publish 1 The FAA has not conceded that the flights being operated by Warbirds were for the purpose of flight training.

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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.
II. FAA Regulations and Guidance A. Pilot Requirements and Operating Requirements The requirements for a person exercising the privileges of a pilot certificate or a flight instructor certificate are generally contained in 14
CFR part 61. These regulations govern what is required to act as pilot in command, serve as a required flightcrew member, or conduct flight training in an aircraft. The regulations in 14 CFR part 91 by contrast contain operating requirements that govern how the aircraft itself may be operated. The term operate is broadly defined in 14
CFR 1.1 as use, cause to use or authorize to use aircraft, for the purpose except as provided in 91.13 of this chapter of air navigation including the piloting of aircraft, with or without the right of legal control as owner, lessee, or otherwise. As such, the determination of whether someone is operating an aircraft is not contingent on ownership, flightcrew status, or the receipt of payment for the use of the aircraft.
Although a person may hold the appropriate privileges to act as pilot in command 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. As defined, the term operate has broader meaning than the general terms used in part 61
that address acting as pilot in command or exercising the privileges of a particular pilot certificate. A person may be considered to operate an aircraft under the 1.1
definition without serving as a required flightcrew member or manipulating the controls of the aircraft.
As noted, under 91.315, no person may operate a limited category aircraft carrying persons or property for compensation or hire. Based on the plain language of the regulation, the FAAs position as represented in a 2014
2 On April 19, 2021, AOPA, EAA, and GAMA
sent a joint letter to Ali Bahrami, then Associate Administrator for Aviation Safety. A copy of this letter and the response has been placed in the docket for this notification.

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legal interpretation 3 and restated in the Warbirds case is that a flight instructor who is operating i.e. using a limited category aircraft that is carrying a person e.g. the person receiving instruction for compensation e.g.
monetary payment is acting contrary to the regulation.4
The regulations governing other categories of aircraft experimental aircraft in 91.319 and primary category aircraft in 91.325 include the same language as the prohibition in 91.315.
The prohibitions in 91.319 and 91.325 that mirror the language in 91.315 must be read to have the same meaning.5 As such, a flight instructor providing flight training in one of these categories of aircraft for compensation is acting contrary to the regulations absent a letter of deviation authority LODA, if applicable, or exemption.
B. FAA Guidance on Flight Training for Compensation in Experimental Aircraft FAA Order 8900.1 contains guidance for FAA inspectors that indicates that flight training in an experimental aircraft for compensation is permissible without a LODA under certain circumstances.6 The guidance states that flight instructors may receive compensation for providing flight training in an experimental aircraft but may not receive compensation for the use of the aircraft in which they provide that flight training unless they obtain a LODA issued under 91.319h.
Likewise, the guidance states that owners of experimental aircraft may receive and provide compensation for flight training in their aircraft without a LODA, but owners may not receive compensation for the use of their aircraft for flight training except in 3 FAA Legal Interpretation to Gregory Morris October 7, 2014. The Morris Interpretation concluded, inter alia, that 91.315 does not set forth any exceptions for providing flight training for hire in a limited category aircraft and that the only way to provide such training is pursuant to an exemption from this section of the regulations following the procedures of 14 CFR part 11.
4 Given the broad definition of operate in 1.1, both the owner of a limited category aircraft seeking flight training and the flight instructor providing the training are considered to be operating the aircraft. The FAA notes that the term operate has a different meaning from the term operational control, which is defined in 1.1 as the exercise of authority over initiating, conducting or terminating a flight.
5 Consistent with the position for limited category aircraft, FAA Order 8900.1 addresses the prohibition against the operation of an experimental aircraft to carry persons or property for compensation or hire. It acknowledges that the restriction prohibits the widespread use of experimental aircraft for flight training for compensation or hire. FAA Order 8900.1, Vol. 3, Chpt. 11, sec. 1, para. 3293.
6 FAA Order 8900.1, Vol. 3, Chpt. 11, sec. 1, para.
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