Coming soon? Instruction is not carriage for hire

[bflynn]

Something interesting I stumbled across. The new Defense authorization act contains a short amendment of interest. This has been passed by the house and is currently either on the calendar or will be put on the calendar soon for the Senate to vote on.


SEC. 6451. FLIGHT INSTRUCTION OR TESTING.

(a) In General.--An authorized flight instructor providing student
instruction, flight instruction, or flight training shall not be deemed
to be operating an aircraft carrying persons or property for
compensation or hire.
(b) Authorized Additional Pilots.--An individual acting as an
authorized additional pilot during Phase I flight testing of aircraft
holding an experimental airworthiness certificate, in accordance with
section 21.191 of title 14, Code of Federal Regulations, and meeting
the requirements set forth in Federal Aviation Administration
regulations and policy in effect as of the date of enactment of this
section, shall not be deemed to be operating an aircraft carrying
persons or property for compensation or hire.
(c) Use of Aircraft.--An individual who uses, causes to use, or
authorizes to use aircraft for flights conducted under subsection (a)
or (b) shall not be deemed to be operating an aircraft carrying persons
or property for compensation or hire.
(d) Revision of Rules.--The requirements of this section shall
become effective upon the date of enactment. The Administrator of the
Federal Aviation Administration shall issue, revise, or repeal the
rules, regulations, guidance, or procedures of the Federal Aviation
Administration to conform to the requirements of this section

 

[SkyDog58]

Looks like some Congress critter wants to be FAA. Besides, there really isn’t a need for most of that language, and whoever wrote it doesn’t give details of which rules, regulations, guidance, or procedures that they want the FAA to issue, revise, or repeal to conform to this act. They just say to do it.

But, regardless of that fact, I hate when those types add extra garbage into a bill that has nothing to do with the main purpose of a bill. And this has nothing to do with defense authorization. Yes, I know it happens all of the time but it shouldn’t. Put it in the FAA reauthorization bill or make it a stand alone bill. The should be hard and fast rules regarding germaneness. It would help to reduce such nonsense being tacked onto bills.

 

[Capt. Geoffrey Thorpe]

So, like, I got my LODA for nuttin? (Not that it was hard.)

 

[tsts4]

Which NDAA are you looking at? The current NDAA, FY22 was passed and signed into law back in December and the section you quoted is not in the signed legislation. The FY23 NDAA is only in development at this point and the House and Senate versions wouldn't even be coming out of the HASC and SASC until this summer at the earliest, much less coming up for a vote.

 

[DaleB]

Looks like some Congress critter wants to be FAA. Besides, there really isn’t a need for most of that language, and whoever wrote it doesn’t give details of which rules, regulations, guidance, or procedures that they want the FAA to issue, revise, or repeal to conform to this act. They just say to do it.

Whether or not it's needed depends on your point of view. The need for LODA for Experimentals has caused, and continued to cause, a substantial amount of confusion. Of course I know that everyone here understands it all completely, but not everyone does. And changing the regs to reflect reality will save the FAA some time and effort issuing LODA.

But, regardless of that fact, I hate when those types add extra garbage into a bill that has nothing to do with the main purpose of a bill. And this has nothing to do with defense authorization. Yes, I know it happens all of the time but it shouldn’t. Put it in the FAA reauthorization bill or make it a stand alone bill. The should be hard and fast rules regarding germaneness. It would help to reduce such nonsense being tacked onto bills.

I agree with you. We should get our elected representatives to ... to... oh, never mind.

 

[bflynn]

But, regardless of that fact, I hate when those types add extra garbage into a bill that has nothing to do with the main purpose of a bill. And this has nothing to do with defense authorization. Yes, I know it happens all of the time but it shouldn’t. Put it in the FAA reauthorization bill or make it a stand alone bill. The should be hard and fast rules regarding germaneness. It would help to reduce such nonsense being tacked onto bills.

I know - when they attached Basicmed to the defense bill a few years back everyone was like "Argh, another meaningless amendment! Will this ever stop?!!!" IMO, it's sometimes better to attach to a bill than to make a stand alone bill go through all the hoops and steps to get passed.

Regardless, this stops a judge's unpublished opinion from becoming a defacto regulation. This is how it should work, Congress should give small corrections when an agency starts to stray.

 

[luvflyin]

Looks like some Congress critter wants to be FAA. Besides, there really isn’t a need for most of that language, and whoever wrote it doesn’t give details of which rules, regulations, guidance, or procedures that they want the FAA to issue, revise, or repeal to conform to this act. They just say to do it.

But, regardless of that fact, I hate when those types add extra garbage into a bill that has nothing to do with the main purpose of a bill. And this has nothing to do with defense authorization. Yes, I know it happens all of the time but it shouldn’t. Put it in the FAA reauthorization bill or make it a stand alone bill. The should be hard and fast rules regarding germaneness. It would help to reduce such nonsense being tacked onto bills.

The Defense Bill is serious sheet. People like the Defense Bill. Takes a lotta cajones to vote against it. Lotsa 'pork' gets through. Maybe someday they'll try 'by line veto' again.

 

[ExpressJetter]

"General.--An authorized flight instructor providing student instruction, flight instruction, or flight training shall not be deemed to be operating an aircraft carrying persons or property for compensation or hire."

Is having a YouTube channel and saying "I'm not an instructor...... but here's some instruction.... But don't take it as instruction" like Soo many YTers out there.... a loophole to this ?

 

[Capt. Geoffrey Thorpe]

Is having a YouTube channel and saying "I'm not an instructor...... but here's some instruction.... But don't take it as instruction" like Soo many YTers out there.... a loophole to this ?

Not if you sign a logbook as having provided dual instruction...

But, I am not an instructor. Nothing in any of my videos is intended to help you pass any FAA exam, written or oral.

 

[Salty]

Not if you sign a logbook as having provided dual instruction...

But, I am not an instructor. Nothing in any of my videos is intended to help you pass any FAA exam, written or oral.

In fact, it'll confuse you to the point of getting answers wrong.

 

[SkyDog58]

The Defense Bill is serious sheet. People like the Defense Bill. Takes a lotta cajones to vote against it. Lotsa 'pork' gets through. Maybe someday they'll try 'by line veto' again.

Yep. Voting against more death machines is downright un-American. But you are correct, it does provide a big back door channel for pork and other nonsense.

 

[Daleandee]

The need for LODA for Experimentals has caused, and continued to cause, a substantial amount of confusion. Of course I know that everyone here understands it all completely, but not everyone does. And changing the regs to reflect reality will save the FAA some time and effort issuing LODA.

Yep ... those that don't fly experimental aircraft and haven't followed the story may not understand the need for this correction. Sad it had to be done this way or be done at all but the "EZ to get LODA" that solved everything overnight was only a stopgap measure.

I've said it before and this is another great highlight of the fact that we get the government we deserve ...

 

[Salty]

I should keep my trap shut, but this IS needed. The current situation is that the faa says training requires an exception. This should *never* have been allowed, and should absolutely be fixed. Training in your own aircraft should never require a written exception to the rules. It’s a horrible message that training is a bad thing that requires an approval by the Faa before you do it.

 

[Unit74]

"General.--An authorized flight instructor providing student instruction, flight instruction, or flight training shall not be deemed to be operating an aircraft carrying persons or property for compensation or hire."

Is having a YouTube channel and saying "I'm not an instructor...... but here's some instruction.... But don't take it as instruction" like Soo many YTers out there.... a loophole to this ?

This is for entertainment purposes only…..

 

[mondtster]

I should keep my trap shut, but this IS needed. The current situation is that the faa says training requires an exception. This should *never* have been allowed, and should absolutely be fixed. Training in your own aircraft should never require a written exception to the rules. It’s a horrible message that training is a bad thing that requires an approval by the Faa before you do it.

To me, this proposal looks like an attempt to fix what the FAA screwed up with the warbird deal that triggered the LODA. It's likely a good thing, for the reasons you cite.

 

[aggie06]

Looks like some Congress critter wants to be FAA. Besides, there really isn’t a need for most of that language, and whoever wrote it doesn’t give details of which rules, regulations, guidance, or procedures that they want the FAA to issue, revise, or repeal to conform to this act. They just say to do it.

But, regardless of that fact, I hate when those types add extra garbage into a bill that has nothing to do with the main purpose of a bill. And this has nothing to do with defense authorization. Yes, I know it happens all of the time but it shouldn’t. Put it in the FAA reauthorization bill or make it a stand alone bill. The should be hard and fast rules regarding germaneness. It would help to reduce such nonsense being tacked onto bills.

Unfortunately, that’s how all regulations work. We fly under a set of rules not determined by congress but which carry the force of law. They are regulations. I think that’s BS because no one is then accountable for laws that come in the form of regulations and the courts defer to the agency for interpretation however they want when even the regulations are unclear. Because of the way the regulatory framework works, we’re seeing more and more of that. It’s easier to pass something when a CBO score isn’t even possible because the laws aren’t clear enough. Large pieces of the 2017 tax reform package just said the Commissioner shall write regulations with broad mandates instead of specific rules, so a lot of the new rules came from some bureaucrats at Treasury.

 

[Tarheelpilot]

Unfortunately, that’s how all regulations work. We fly under a set of rules not determined by congress but which carry the force of law. They are regulations. I think that’s BS because no one is then accountable for laws that come in the form of regulations and the courts defer to the agency for interpretation however they want when even the regulations are unclear. Because of the way the regulatory framework works, we’re seeing more and more of that. It’s easier to pass something when a CBO score isn’t even possible because the laws aren’t clear enough. Large pieces of the 2017 tax reform package just said the Commissioner shall write regulations with broad mandates instead of specific rules, so a lot of the new rules came from some bureaucrats at Treasury.

unfortunately the reset button for those problems are often not buttons at all…

 

[steingar]

They tried this in the FAA reauthorization, but it got shot down for reasons I don't recall. Someone trying to fix something the FAA broke. Good for them.

 

[Llewtrah381]

To me, this proposal looks like an attempt to fix what the FAA screwed up with the warbird deal that triggered the LODA.

I beg to differ. It was the other way around. Had Warbirds of America not called their bucket list joyrides “instruction” - and pressed the matter in the courts - this would never have been raised as an issue.

This proposed change seems to bring us back to square one: as written, it seems to allow Warbirds to go back to what they were doing before. Primary training in a P-51?!? C’mon.

The LODA sounds clunky but, as an Experimental owner, I can attest that it’s a complete non-issue for me.

Yet again, a reg seems to be written because someone did something stupid. We “get the government we deserve” because people do stupid s#!t, IMHO.

 

[Salty]

I beg to differ. It was the other way around. Had Warbirds of America not called their bucket list joyrides “instruction” - and pressed the matter in the courts - this would never have been raised as an issue.

This proposed change seems to bring us back to square one: as written, it seems to allow Warbirds to go back to what they were doing before. Primary training in a P-51?!? C’mon.

The LODA sounds clunky but, as an Experimental owner, I can attest that it’s a complete non-issue for me.

Yet again, a reg seems to be written because someone did something stupid. We “get the government we deserve” because people do stupid s#!t, IMHO.

I see what you are saying, but to repeat myself. The problem never was the rule. The warbirds guys were breaking the rule. All they had to do was enforce the rule.

 

[flyingron]

I beg to differ. It was the other way around. Had Warbirds of America not called their bucket list joyrides “instruction” - and pressed the matter in the courts - this would never have been raised as an issue.

Warbirds of America is a division of the EAA and wasn't giving joyrides. The people who brought the court case was Warbird Adventures, a for-profit "flight training" operation.

The EAA did file an amicus brief along with AOPA, NAFI, GAMI, and a few others. It was hardly in support of "joyrides" but expressed valid concerns about experimental aircraft being used for flight training.

 

[Dana]

The warbirds guys were breaking the rule. All they had to do was enforce the rule.

The FAA did try to enforce the rule, with a cease and desist order. Warbird Adventures foolishly took it to court. The court upheld the cease and desist order, but a judge who knew nothing about aviation or flight training added an interpretation that screwed things up for everybody else.

The simple solution, which would take time, is to establish aircraft performance limitations for primary flight training.

 

[Salty]

The FAA did try to enforce the rule, with a cease and desist order. Warbird Adventures foolishly took it to court. The court upheld the cease and desist order, but a judge who knew nothing about aviation or flight training added an interpretation that screwed things up for everybody else.

The simple solution, which would take time, is to establish aircraft performance limitations for primary flight training.

Judges don't invent things out of thin air. They can't. They can only rule on what the attorneys present to them - it's the FAA's fault. Period.

 

[MauleSkinner]

The simple solution, which would take time, is to establish aircraft performance limitations for primary flight training.

Probably eliminating a small but real group of legitimate primary training operations.

 

[Llewtrah381]

I appreciate what people are saying (and stand corrected re the name of the joyriders) but I still wonder if the NDAA language will bring us back to square 1 and the Warbird group can go back to hiding joyrides under the “flight instruction” rubric - and effectively “win”? The proposed language seems to suggest so, unless there’s other language more clearly defining “instruction” somewhere.

 

[tsts4]

Once again, this language is not, repeat not in the FY22 NDAA that was signed back in December. The FY23 NDAA hasn’t been written yet.

 

[Brad Z]

I know - when they attached Basicmed to the defense bill a few years back everyone was like "Argh, another meaningless amendment! Will this ever stop?!!!" IMO, it's sometimes better to attach to a bill than to make a stand alone bill go through all the hoops and steps to get passed.

Regardless, this stops a judge's unpublished opinion from becoming a defacto regulation. This is how it should work, Congress should give small corrections when an agency starts to stray.

Except BasicMed was section 2307 of the FAA Extension, Safety, and Security Act of 2016. Not a defense bill.

 

[unsafervguy]

Warbirds of America is a division of the EAA and wasn't giving joyrides. The people who brought the court case was Warbird Adventures, a for-profit "flight training" operation.

The EAA did file an amicus brief along with AOPA, NAFI, GAMI, and a few others. It was hardly in support of "joyrides" but expressed valid concerns about experimental aircraft being used for flight training.

ron please correct me if im wrong, but my understanding is that legally the way it was written, giving instruction in an EAB that a person owns was illegal, but the FAA never enforced it that way, but when the case came about the judge really ruled that the faa could not use it both ways and the LODA was the FAAs temporary fix for it. so this legislation just fixes that problem by law?

 

[flyingron]

Getting instruction in your own experimental indeed wasn't an issue before. The problem was previously giving instruction (be it warbirds or homebuilts) in aircraft that others owned. Now the LETTER of the regulation is that unlike 100 hour inspections (beat to death in another thread) which calls out specifically both passenger carrying for hire and instruction, the rules on experimentals (actually planes without standard airworthiness certificates, the plane in the ruling was int he limited category) mentioned only passenger carrying for hire.

The FAA did indeed enforce this as if giving instruction in an experimental not owned by the student was an illegal operation based on their skewed interpretation of the rule. When WA took them to court, the judge has to defer based on the Administrative Procedures Act and prior case law that the agency is the arbiter on what their rules actually say, and then went on to say that the FAA's interpretation applied to all cases of flight instruction in experimentals.

My comments to Llewtrah381 was primarily that he blamed Warbirds of America, which was not responsible for any of this.