Do instructor checkrides count for BFRs

[avbug]

Viking,

You're talking apples and oranges, and eating neither one.

A flight instructor is required to hold a pilot certificate. However, a flight instructor certificate is NOT a pilot certificate. That is why a flight instructor must hold ratings and privileges on a PILOT certificate in addition to the appropriate ratings on a flight instructor certificate.

A flight instructor is not paid as a pilot, but as an instructor. A flight instructor may conduct flight instruction without a current medical, flight review, or flight currency or appropriate recency of experience, so long as he or she is not acting as pilot in command.

A pilot must have a current medical certificate, flight review, appropriate recency of experience, etc, prior to acting as PIC, SIC, or in any other capacity as a required crewmember of an aircraft. Clearly the restrictions and privileges and requirements of a flight instructor certificate differ bountifully from that of a pilot certificate.

The privileges accorded a pilot are dependent upon his or her ability to remain current, including any proficiency checks required. A flight instructor has no such requirement, and may exercise the privileges of the flight instructor certificate without respect to recency of experience or flight review. A flight instructor may renew indefinitely without ever setting foot or butt cheek in a cockpit. Not so for the holder of a pilot certificate. There is a clear difference.

A flight instructor certificate is not a pilot certificate. A Squared has already provided a legal interpretation, which is binding in civil, criminal, and administrative court and in appeal before the Board, and is fully defensible as the true interpretation representing the Administrator of the issue in question. Personal viewpoints and even opinions proffered at the FSDO level are not relevant, nor constructive toward the issue.

Passing a flight instructor practical test does not necessarily test one as a pilot. Most certainly piloting skills are always assessed, however it is NOT a pilot proficiency check, but a check of one's abilities to instruct, to recognize errors, and to correct them. A flight instructor may instruct without being pilot in command, and has no requirement to be pilot in command except for specific cases. The assumption that a flight instructor practical test is a pilot proficiency exam is in error.

Specifically, look to 61.56(f), which states: "A person who holds a current flight instructor certificate who has, within the period specified in paragraph (c) of this section, satisfactorily completed a renewal of a flight instructor certificate under the provisions in § 61.197 need not accomplish the 1 hour of ground training specified in paragraph (a) of this section."

61.56(f) refers us to 61.197. This section covers renewal of flight instructor certificates. It speaks to all the methods of renewal, including flight checks. Therefore all methods of renewal are encompassed in the reference provided in 61.56(f), including flight checks. Unless specifically signed off as a flight review, the renewal of a flight instructor covers the hour of ground required by 61.56, but not necessarily the flight portion.

It is very reasonable to assume that different maneuvers and requirments may easily be required during the flight portion of a flight review, and the flight portion of a flight instructor practical test; especially a renewal.

Detailed discussion of the merits and weaknesses of the subject is interesting, but pointless. The legal aspects of the subject have already been given, and tearing them apart for reexamination will not change them. The legal interpretation is binding, and one need look no farther than that for the answer.

The following passage from the legal interpretation provided by A Squared is the telling one:

"Accordingly, a CFI practical test will not per se fulfill the flight review requirement. A practical test for a CFI rating under FAR 61.183, taken within 24 months of a prior flight review, can readily meet the flight review requirement of FAR 61.56(d), however, if the examiner is satisfied that a flight review endorsement can be given. To ensure that the CFI applicant gets credit for successful completion of the flight review, however, he or she should ask the examiner to conduct the CFI oral
and practical test so as to satisfy the flight review requirements as well, and to make a logbook endorsement for the flight review upon completion of the examination. "

The FAA has spoken with authority. What more is required?

 

[Viking]

I am pasting this excerpt from the FAA FAQ 61, 141 website.

QUESTION: The particular question is whether a flight instructor who passes a flight instructor practical test (for initial issuance or a CFI rating addition or for a reinstatement) is or is not exempt from needing a §61.56 Flight Review for the next two years, since the reg. specifically says PILOT proficiency check.” §6l.56 d - allows this exemption for a person who has"... passed a PILOT proficiency check.." not needing to accomplish a flight review for the next 2 years.

ANSWER: Ref. §61.56(d); If the examiner also evaluates the applicant’s piloting skills then YES, “. . . a flight instructor practical test (for initial issuance or a CFI rating addition or for a reinstatement) . . .” would meet the requirements of a §61.56 Flight Review. However, to make sure the applicant gets credit for successful completion of the Flight Review, the examiner should record that the §61.56 Flight Review was satisfactorily completed in the applicant’s logbook.

§61.56(d) states:

(d) A person who has, within the period specified in paragraph (c) of this section, passed a pilot proficiency check conducted by an examiner, an approved pilot check airman, or a U.S. Armed Force, for a pilot certificate, rating, or operating privilege need not accomplish the flight review required by this section.

 

[A Squared]

Viking,

Have you not understood ANYTHING that's been posted?

How many times do you need to be told?

It is an official legal opinion from FAA legal counsel.

There are 3 ways that can be overruled. I have listed them in a post above.

As far the Part 61 FAQ page....ummm so what? Did you happen to notice the bit printed at the top of the FAQ page?

It says: Disclaimer Statement: The answers provided to the questions in this website are not legal interpretations. Only the FAA's Office of Chief Counsel and Regional Chief Counsel can provide legal interpretations.

I honestly don't know why you keep on with this. Do you need Jane Garvey to personally come over to your house and tell you that an instructor checkride doesn't count as a flight review?

I'm sorry for my tone, but I am just astonished that someone can post an official legal interpretation from FAA legal Counsel, yet people keep arguing that it's wrong.


Maybe we should direct the discussion to how to CYA if you find that you've been mistakenly depending on a CFI check for a flight review. Any ideas anyone? What's the best way to deal with this. Falsify your logbook? Pray it never comes up?


regards

 

[tdvalve]

A squared: Ms Alkalay is certainly entitled to her opinion, but it is an opinion, not a legal interpretation of the regulation in question. Her opinion is binding only upon those FAA employees within the Eastern Region who might have reason to enforce the regulation in question. It has not been endorsed by the FAA Chief Counsel, so has no application outside the Eastern Region. In practical terms, the weight of her opinion is much the same as the weight applied to the FAA position during an enforcement proceeding. If appealed to the NTSB, her opinion has no more credence than a countering opinion from a defense attorney. Personally, I find her interpretation very interesting and look forward to seeing it tested in court. I suspect it will be overturned much the same as many of her other legal positions have been overturned in the past. The Eastern Region has a well-deserved reputation for over-reaching their authority, and their findings have routinely been overturned by NTSB law judges.

 

[GooodLaaa]

Hey, here's a good one....your flights an hour long, right? Have the DE sign your logbook. Then it's taken care of.

CJC

 

[Viking]

A Squared,
If you read the FAQ I pasted, it merely presents a solution to obtaining a Flight review by having the examiner sign it off in your logbook as one after the checkride.
For you to assume that I do not understand what you are saying is an arrogant assumption and quite frankly displays a condescending attitude!
Chill out and eat some of those apples and oranges you were talking about.

 

[A Squared]

tdvalve,

>>>>Ms Alkalay is certainly entitled to her opinion, but it is an opinion, not a legal interpretation of the regulation in question.

Ok, I'll admit to being hazy on the differetnce between a legal opinon and an interpretation.

They are all opinions. Even coming from the Office of Chief Counsel, it's an opinion of what the law means. While collecting the list of addresses of Regional Legal Counsel, I found that least one of the FAA Region's websites said to write to that region's Office of Legal Counsel for an *interpretation*.

Please also note that the document from Ms Alkalay is titled :Interpretation of FAR 61.56(d)

Does that make it an interpretation, or is she overstepping her authority?

Furthermore the disclaimer from the Part 61 FAQ site states: Only the FAA's Office of Chief Counsel and Regional Chief Counsel can provide legal interpretations.

So when does an opinion become an interpretation, and what exactly is the difference?


>>>>Her opinion is binding only upon those FAA employees within the Eastern Region who might have reason to enforce the regulation in question.

OK, so it seems that we agree that in the Eastern Region at least, this is the interpretation, or opinion, if you prefer, which will be used to determine whether you are in violation of 61.56, should an enforcememt be brought against you. Right?

Now, like I said in my first post, I'm unsure how this affects other regions. Would a region adopt an interpretation from another region? If a region's counsel knew of this interpretation, would they be guided by it, or at least influenced by it? What happens if another Region's counsel issues a contrary opinion? what happens then? I'd be interested to hear your comments on this.

However, if I was in a different region, and I am, I would NOT depend on a CFI checkride as "per se" fulfilling the requirements of 61.56 without having a logbook endorsement stating that a flight review was completed. My point initially was that in the Eastern Region, at least for now, a CFI check does not equal a BFR, and in a different region, it *might* not.

>>>>In practical terms, the weight of her opinion is much the same as the weight applied to the FAA position during an enforcement proceeding.

OK, I'm not sure what you're getting at. In an enforcememt it is the FAA's opinion which counts. Hers is the FAA's opinion, at least for now in the Eastern Region. Perhaps you could clarify what you mean.


>>>>If appealed to the NTSB, her opinion has no more credence than a countering opinion from a defense attorney.

Well, yes and no. If we were talking about real law, in a real court, yes, the prosecutor's opinion theoretically has no more weight than a defense attorney's opinion, and it is up to a Judge and Jury to determine guilt and assess a penalty. The thing is, this isn't real law, it's administrative law. In administrative law, punishment (certificate suspension) is assigned *first* based on the "prosecutor's" opinion, only then can you go to court to have a (theoretically) impartial third party decide who is right. I have been led to believe that the NTSB judges tend to be reluctant to oppose FAA counsel's opinion. Along those lines, I seem to recall that sometime in the last few years the FAA had moved to have the NTSB legally bound to be guided by the FAA's interpretation of a regulation. This in essence would have required the NTSB to rubber stamp all FAA decisions, unless the FAA had erred procedurely in pursuing the enforcement. That would have meant that you would have no chance of having the FAA's opinion overturned until you had appealed to a real court. I don't know what became of this attempt.


>>>> Personally, I find her interpretation very interesting and look forward to seeing it tested in court.
Yeah, but I don't think that any one of us wants to be the test case. Yeah, you *might* win on appeal, you want to bet your certificates on it? Even if you win, it's a very unpleasent and expensive road to NTSB appeals court. Be assured that if you win on appeal the FAA won't say, oops, we were wrong , we're sorry, let us reimburse you for your legal fees and give you a little something extra for making your life a living hell for the past 6 months.


>>>>I suspect it will be overturned much the same as many of her other legal positions have been overturned in the past. The Eastern Region has a well-deserved reputation for over-reaching their authority, and their findings have routinely been overturned by NTSB law judges.

I don't know anything about her, or the Eastern region's track record. If the NTSB is regularly smacking her down, that can only be a good thing.


Viking,

>>>>If you read the FAQ I pasted, it merely presents a solution......

OK, that's the exact solution recommended in the interpretation. I don't see what your point is in posting it. This still seems like you haven't been reading very carefully.

>>>>>Chill out and eat some of those apples and oranges you were talking about.

Ummm, that wasn't me, go back and read the post again.

I'm sorry for having been short with you Viking, but you'll have to agree that so far your three posts suggest that you're not reading things very carefully.

Regards

 

[ArmyPilot]

If I could add to this question...

Does an ATP ride count for a BFR? If you added a Type rating would that count as a BFR? I was trying to figure this out the other day.

Thanks

 

[bobbysamd]

ATP ride as BFR

Oops, sorry, flight review.

You cannot really say that your ATP or type ride(s) would count as a flight review, but if you take one you don't necessarily have to take a flight review. Your ATP is a pilot certificate. Your type is a rating. 14 CFR 61.56(d) obviates the need for taking a flight review if you have passed a test for a pilot certficate or rating within the previous 24 calendar months:

(d) A person who has, within the period specified in paragraph (c) of this section, passed a pilot proficiency check conducted by an examiner, an approved pilot check airman, or a U.S. Armed Force, for a pilot certificate, rating, or operating privilege need not accomplish the flight review required by this section. (emphasis added)

I believe that an FAQ on the FAA's web site does say that a practical for a flight instructor certificate does not count for a flight review unless the examiner writes it up as such. Once again, the FAQs are for informational purposes and do not have the force of law.

I've been following this discussion with interest because I am a legal professional. The New York FAA counsel's letter and opinion are persuasive, but not necessarily controlling. I don't believe that it is black-letter law that an instructor practical does not fulfill the requirements of 14 CFR 61.56. I'm not saying it isn't so. The thing to do is to do some legal research to see if there is any case law that supports this interpretation. In law, you follow precedent. I realize that this isn't the Law Message Board, but I thought I'd throw this point out as further food for thought.

 

[A Squared]

Armypilot,

I don't think that there's any question that an ATP ride or a type rating ride can be substituted for a Flight Review. As Bobbysamd pointed out, either would unquestionably fulfil all the requirements of 61.56 (d).

OK, regarding the question of what to do if you find yourself in the position of having depended on a CFI checkride to substitute for a Flight review. Fortunately, I'm not in this position, but I bet there's a few of us out there who are. How long ago was that period of time? If that time in your career was logged in a previous logbook, don't ever present that logbook to a fed. Give him your current logbook, which presumabley could not be used the prove that you had flown without a flight review. Your first logbook(s) got lost when you moved, stolen with your flight bag 3 years ago, thrown away by your ex-wife when you got divorced...etc. Your current logbook shows that you were current and legal to make the flights you have flown recently. what more do they need? If I was going to an interview at another airline, I perhaps might suddenly "find" those earlier logbooks, but that is none of the FAA's business. I'm skeptical that an airline interviewer would catch something like this, and if it were noticed, I'd be prepared to discuss how you were, like a lot of others, unaware of this stance by the FAA. I would expect an airline interviewer to be a more reasonable, understanding person than a Fed who is looking for a violation.

If this time period is in your current logbook, what do you do? One approach might again be to make sure thay don't get to look at the logbook.
If requested, present them with a cheapo "first flight" logbook having only the minimum flights logged to show currency. Don't make up flights, log flights that you actually made, flights that you can substantiate by rental records or other means would be much better.

For me, that would be pretty easy. I fly for a Part 121 carrier. I don't have to show a current flight review as I've passed Pilot proficiency checks. My comapny flight records show that I am instrument current, current for night flight, and have done more than 3 takeoffs and landings in the last 90 days in multiengine airplanes. The only things I would have to show in a logbook are 90 day currency in a single engine airplane, tailwheel airplane, or seaplane.

There is of course the question of high performance, complex, or tailwheel endorsements. For me, I've logged time in all those aircraft before August of 1997, so that's all I'd need. My "display" logbook that i'd present to the FAA would have one flight in 1996 in a C-310 I used to fly. If push came to shove, I could probably document this with flight records from this company, or at least testimony from someone there. Tailwheel qualification would be taken care of by showing one flight I made in a tailwheel aircraft before 1997. The logbook would show the minimum takeoffs and landings needed to show currency for the flying I had been doing. If your endorsememts came after 1997, how about this? Have one sheet of paper showing the endorsements (requires tracking down the instructors who gave you the endorsements and getting them to sign endorsements again) and keeping that paper seperate. any time your logbook is demanded, show the endorsement list, and a throwaway logbook listing those flights you need to show currency.

Anyone have thoughts on this sort of approach? Potential pitfalls?


regards

 

[bobbysamd]

Handing logbooks to Feds

For one thing, you should never immediately hand your logbooks to a fed on demand, even if you have them with you. The regs do say you have to let the FAA inspect them upon reasonable request. "Reasonable request" means making an appointment with the inspector at his/her office for the purpose of presenting your logbook. That is your opportunity to buy time.

Any event that warrants a fed asking to see logbooks is probably serious enough to warrant representation. Go see an aviation attorney after making your appointment. Then, you can show the attorney your logbooks and he/she will help you with strategy to address the supposed lack of flight review problem.

Now, I am not an attorney licensed to practice law, but my gut reaction is if you don't present all of your logbooks that you will found to be obstructing an investigation.

AOPA has counselors who can help with legal problems. I also recommend this book, Practical Aviation Law by J Scott Hamilton, ISBN: 0813818176. I also recommend checking out this series of articles on Avweb: Enforcement School: Tips on Protecting Your Certificate, http://www.avweb.com/articles/enforce1/ .

 

[A Squared]

>>>>>Now, I am not an attorney licensed to practice law, but my gut reaction is if you don't present all of your logbooks that you will found to be obstructing an investigation.

Perhaps, but they have to have some way of knowing that you have a logbook you are not presenting. Logbooks do indeed get lost, stolen, destroyed in house fires, etc. Who's to say yours didn't?

I personally know pilots who only log the very minimum required to stay legal. The most any logbook will show ever is one flight review, and 3 takeoffs and landings every 90 days. When they have a new flight review, they start a new logbook and burn the old one. The idea is never to have any more than the bare minimum written down, the less there can be to trip you up.

regards