AOPA Pilot Magazine - January 2025 - 26

FOR THE RECORD
What is a
'passenger'?
New rule impacts flight instruction
BY IAN ARENDT
ON OCTOBER 2, 2024, the FAA adopted its final rule, Public
Aircraft Logging of Flight Time, Training in Certain Aircraft Holding
Special Airworthiness Certificates, and Flight Instructor Privileges.
The verbose title reflects important changes to several subject
areas, and everyone should read the final rule and the preceding
proposed rule to understand its impacts. While the final rule is
important to pilots flying public aircraft or experimental, limited,
and primary category aircraft, this article will focus on that last
subject in the title- " Flight Instructor Privileges. "
In the final rule, the FAA makes important changes that impact
flight instruction. First, the FAA defines the term " passenger. "
Next, the FAA replaces the term " passengers " with " persons " for
recent flight experience requirements and adopted an important
exception for flight instruction. Finally, the FAA adds clarifying
provisions to flight instructor and sport pilot instructor privileges.
To understand why the new definition of " passenger " and the
changes to the recent flight experience requirements are important,
let's go back to June 2023, before the proposed rule. FAR 61.57(a)
and (b) required three takeoffs and landings as the sole manipulator
of the controls of an aircraft of the same category, class, and type (if
required) within the preceding 90 days in order to act as PIC of an
aircraft carrying " passengers " and three takeoffs and landings to a
full stop at night for currency to carry " passengers " at night. What
you may not know is that FAA legal interpretations allowed for a noncurrent
instructor to fly with a non-current trainee, as neither was
considered to be a " passenger " to the other. In other words, a noncurrent
instructor could provide instruction to a non-current trainee,
and either could act as PIC since neither was carrying a " passenger. "
This decades-long understanding was flipped on its head
after the FAA equated flight instruction with the carriage of
" passengers " and rescinded these legal interpretations 30 days
after the proposed rule was issued. For over a year, there was no
ability for a non-current instructor to provide flight training to a
non-current trainee because at least one of them had to be current
to act as PIC carrying " passengers. "
Then, on December 2, 2024, the final rule became effective,
again allowing this type of training but with some notable changes.
Most importantly, the FAA replaced the word " passengers " with
" persons " for the general and night flight experience requirements.
This revision was deemed necessary given the new definition of
26
AOPA PILOT / January 2025
" passengers, " which includes any person on board an aircraft except
a person receiving or providing authorized flight training, checking,
or testing and certain other persons. This means that neither a flight
instructor nor a trainee is considered a " passenger " to the other.
However, the definition of " person " is much broader than the new
definition of " passenger " and includes any individual and various
legal entities. Although no longer " passengers, " a flight instructor
and a trainee are certainly " persons, " and the carriage of " persons " is
prohibited unless current. Fortunately, the rule also adds exceptions
that allow a non-current instructor to provide instruction to a noncurrent
trainee, but only for the purpose of the trainee regaining
currency, only if the trainee is otherwise capable of acting as PIC,
and only if the instructor and trainee are the sole occupants. Another
new exception clarifies that the recent flight experience rules do not
apply to an examiner or applicant during a practical test.
The rule also amended the privileges for flight instructors and
sport pilot instructors to clarify that ground training, flight training,
certain checking events, and issuance of endorsements are allowed.
Previously, the regulation only allowed instructors to " train and issue
endorsements. " The rule was amended to allow flight instructors
to provide " training to maintain or improve the skills of a certificated
pilot " (or sport pilot in the case of sport pilot instructors).
This change was intended to allow flight instructors and sport pilot
instructors to provide elective training not otherwise required for a
certificate, rating, or operating privilege, like training to transition
to a new aircraft of the same category and class, aerobatic training,
formation training, or mountain flying training. But, this only
applies to training intended to advance a certificated pilot's preexisting
knowledge or skills. Importantly, flight instructors and sport
pilot instructors must not provide this elective training to non-certificated
persons (e.g., student pilots). Finally, the new rule provides
reciprocal prohibitions against " conduct[ing] operations that would
otherwise require an air carrier or operating certificate or specific
authorization from the [FAA]. "
Everyone should review the
final rule and proposed rule to
understand the nuance behind
these regulatory changes.
ian.arendt@aopa.org
aopa.org/pps
IAN ARENDT is an
in-house attorney with
AOPA's Legal Services
Plan. He is a private pilot
and owns a Piper PA-12
Super Cruiser.
http://www.aopa.org/pps
AOPA Pilot Magazine - January 2025

Table of Contents for the Digital Edition of AOPA Pilot Magazine - January 2025
