CFII currency

[WMUSIGPI]

in that case maybe the rules should be changed so that instructors shouldn't be able to log any time unless they are actually operating the controls. No more using flight instruction as a time builder to the airlines.... at least this would weed out most of the bad instructors teaching just to build time and not give a d@mn about their students.
Course this would probably also create a great shortage of instructors and cause instructor fees to skyrocket.
Then maybe instructors would get paid what they are worth.
Though then how many people could afford to learn to fly?
Well, so much for instructor demand and pay raises.
Oh heck lets all just go back to horses for transportation.

OK now seriously, I agree that some hands on flying needs to be done every so often. Some of the worst pilots I saw when doing rental checkouts were airline pilots used to turing on the autopilot at all times above 200 feet. yet these are the most experienced pilots in the country... what gives? well I'm guessing it was a combination of lack of any real hands on flying in some time and forgetting how to fly a little single engine piston plane.... (they won't land at 120kts)
But they had the best checklist and flow skills of anyone.
had they flown completely hands on at least once a week and remembered how to fly a little plane they probably would have done much better but that's life

 

[avbug]

Again, it's not about monitoring. There can be no correlation between monitoring a student, and monitoring an autopilot. An autopilot during a coupled approach is part of the aircraft flight control sytem. Weather one physically moves a yoke or control column, or uses the trim system or control servos to do the same thing, is not relevant. When hand flying the approach, or performing a coupled approach, a pilot is still performing the approach.

A student is NOT part of the aircraft flight control system. A student is a person flying the approach. Monitoring a student is not the same as performing the approach. The issue is not one of monitoring something or someone else performing the approach. The issue is about actually performing the approach, and the person logging the approach must be the one that performed it.

If I hand fly an approach to minimums by reference to instruments, I may log the approach. If I fly a coupled approach to minimums by reference to instruments, I may log the approach. If I fly on board as PIC during an approach to minimums while the SIC performs the approach, I may not log the approach for recency of experience purposes, no matter how much monitoring I may have done. Good experience, to be sure...but it doesn't meet the recency of experience requirements.

Lynch does a good job and the site is good entertainment.

The FAA doesn't change "rules" in the middle of a trial. What case law are you referring to?

 

[midlifeflyer]

avbug said:
The FAA doesn't change "rules" in the middle of a trial. What case law are you referring to?

They don't really "change" them, but the FAA has been known to write them in the middle of trial. As I recall, John Yodice may have done an article on it for AOPA Pilot. I know that I've heard him speak on it at aviation legal seminars.

It's not FAA-specific. Standard US Administrative Law.

1. The interpretation that an agency gives to a regulation it wrote is entitled to deference by the courts.
2. An agency can give an interpretation of a regulation for the very first time during a trial.
3. This interpretation given during trial is due the same deference as one that was given long before trial.

So, in the CFII-logging-the-student's-approach scenario, it is entirely possible (if the issue came up during a certificate action) for the FAA to say "no" to the logging issue for the very first time and make it stick, no matter what John Lynch says.

 

[avbug]

Again, cite an example of administrative case law involving 14 CFR in which this applies.

 

[midlifeflyer]

Again, cite an example of administrative case law involving 14 CFR in which this applies.

Sure. There are lots, but you might remember this one because everyone was talking about it when it came down.

Pilot hears a clearance. Thinks it's meant for him. Reads it back. ATC doesn't correct him. Follows the clearance and is violated. FAA charges violation of 91.123 (failure to follow clearance). Pilot argues that he followed proper readback procedures. FAA says "tough."

NTSB agrees with the pilot. Not every error is a violation. People make honest mistakes. The FAA's interpretation doesn't promote safety. And the NTSB has other cases that interpret it the same way. And this was the first time that the FAA interpreted the regulations this way.

Goes up on appeal and the NTSB gets reversed. Everyone remembers the case because a lot of people feel the pilto got hosed. But on the Admin Law level, the case is one of many that satdn for the principles we've been talking about. Legally, the case is pretty technical (though not all the difficult to follow), but this quote (supported by a line of prior authority and parts of which are repeated numerous times throughout the opinion) probably says it as succinctly as anywhere (some emphasis added):

More important, even if the NTSB had followed an unvarying line contrary to the regulatory interpretation the FAA advances here, that would not be sufficient to uphold the Board's decision in this case. As we noted at the outset, the interpretation of air safety regulations is an area in which the Board owes deference to the FAA. For that reason, consistency with the FAA's position is more important than consistency with the Board's own. As both the NTSB and Merrell concede, the FAA is authorized to initiate new regulatory interpretations through adjudication. And because the Board is bound to follow such interpretations, it may at times be both necessary and proper for the Board to depart from its prior case law

The case is Garvey v. National Transp. Safety Bd., 190 F.3d 571 (DC Cir 1999). You can read it online at
www.ll.georgetown.edu/federal/judicial/dc/opinions/98opinions/98-1365a.html

 

[avbug]

You stipulated that the FAA reinterprets administrative law during and after the fact, and that case does not support your observation. That the NTSB disagreed, or was overturned, has nothing to do with anything.

The statement of a judge regarding the overturning of the Board's decision means nothing in this case, either. Of course the FAA's interpretations take precedence over the Board, as the regulations pertain to the FAA. The board is nothing more than a separate source of appeal and review.

You appear to question the opinion written that FAA regulation overrides caselaw as decided by the NTSB. Obviously the FAA takes precedence, except in cases of appeal.

I don't understand what you're getting at. Wherein did the FAA alter their legal interpretation after the fact, and then hold the pilot to it? The specific case law to which you refer involves the FAA administrator v. the NTSB, as the FAA was appealing a ruling against them by the NTSB. It was nothing more than an appeal at the next higher level.

The Administrator has always maintained that the pilot is ultimately responsible for his or her actions. It's plainly written in 14 CFR 91.3(a). In the underlying case to which you refer, a controller failed to catch a faulty readback, and the pilot attempted to excuse himself by placing the blame on the pilot. The result was a clear statement that the pilot is always responsible...a statement which hasn't wavered since long before the "FAR's" existed.

Your assertion of the following is fundamentally incorrect, for the simple principle that after the fact, one cannot be held liable for later interpretation...presupposing that adequate interpretation existed before the fact:

1. The interpretation that an agency gives to a regulation it wrote is entitled to deference by the courts.
2. An agency can give an interpretation of a regulation for the very first time during a trial.
3. This interpretation given during trial is due the same deference as one that was given long before trial.


While the ALJ may give due consideration to the current interpretation, if a prior interpretation has been given, the new interpretation will not automatically presuppose the old one. Further, consideration will be given to the timliness of the interpretation.

Yes, caselaw is often used to test or establish an interpretation, just as it is in all law. The administrator puts forth an arguement, and if the ALJ buys it, then it's a done deal. The subject of that action is always welcome to appeal.

However, we're getting away from the subject here, as the subject matter is rather clear. Further, this has nothing to do with harking back to completely unofficial and irrelevant commentaries made by the FAQ site...sources such as which only serve to muddy the topic and confuse those in this discussion. It matters not a whit what's on the FAQ site, as it won't serve you in administrative court, nor will it serve against you.

An instructor can log all time spent as an authorized instructor in instrument conditions, but is not entitled to log the student's approaches.

Monitoring a student is not the same as performing an approach using an autopilot.

A student is not a flight control, or an aircraft system.

If you want to log an approach for recency of experience, then perform the approach, don't watch it.

 

[midlifeflyer]

Originally posted by avbug (snip)

Your assertion of the following is fundamentally incorrect :

1. The interpretation that an agency gives to a regulation it wrote is entitled to deference by the courts.
2. An agency can give an interpretation of a regulation for the very first time during a trial.
3. This interpretation given during trial is due the same deference as one that was given long before trial.

We obviously read that case very, very differently. IMO, that's =exactly= what the case says, and what the case did. With one possible exception, based on our perhaps misunderstanding each other.

On No 3, I did not intend to say that if the FAA =had= a pre-existing official interpretation it could change it in midstream. Only that, in the absence of a preexisting FAA official interpretation, the FAA can make up one at the hearing and use it at that hearing against the pilot for an act the pilot did before the hearing. The deference afforded to the interpretation doesn't depend on when it was made. If you thought I meant something else, sorry.

If you still disagree, that's okay too. But of course, everyone can read it on his own and draw his own conclusions.

 

[avbug]

Mark,

There's no disagreement there. We are saying the same thing. Of course, barring a previous interpretation, or a unambiguous rendering of an origional passage, the administrator may argue in whatever manner most benifits him or her.

To issue an interpretation at the time of enforcement proceedings is in complete harmony with the lattitude granted under the CFR. The CFR was intentionally written to be open to interpretation applicable to unique situations as they are presented.

Disagreement with such an interpretation is of course, the foundation for appeal.

Most frequently, those who find themselves in such situations are those seeking to make or find a loophole. Most of the regulation is clear in intent, if not in wording. I cringe whenever I hear a pilot mutter, "well, it doesn't say it in the FAR's..." and then uses that as a justification for their actions.

To most of us, the course is rather clear. The regulation does not specifically prohibit us from flying our airplane into the side of a mountain, but I believe we can all determine that should we survive, at a minimum we are subject to enforcement action (careless and reckless operation, in this case). The point here is that absent interpretation, there are few places in the regulation that leave us stranded on the island of unclarity.

 

[midlifeflyer]

avbug says:
The regulation does not specifically prohibit us from flying our airplane into the side of a mountain, but I believe we can all determine that should we survive, at a minimum we are subject to enforcement action (careless and reckless operation, in this case).

It depends

But yes, we do agree on the general principle. The FAR do not generally leave things totally unclear. But it is the "nature of the beast" (law and regulation) that there are areas that are still (1) open to reasonable but disagreeing interpretations or (2) are intentionally not micro-regulated to permit leeway in conduct.