logging instrument approach question

[bobbysamd]

FAA FAQ and crap v. the ALJ

[H]ere's the real answer direct from the FAA's office of chief counsel:
For currency purposes, an instrument approach under Section 61.57(e)(1)(i) may be flown in either actual or simulated IFR conditions.

Well, duh . . .

Further, unless the instrument approach procedure must be abandoned for safety reasons, we believe the pilot must follow the instrument approach procedure to minimum descent altitude or decision height.

(emphasis added)

That part is crap. What if I commence an ILS in IMC and break out at 500' AGL? I don't get to count the approach?? Baloney!

Even though it might be the FAA's assistant general counsel who writes these FAQs, you cannot rely upon them as black-letter law. Same with John Lynch, to whom Midlifeflyer refers above. If you were to go before an ALJ, the facts of your situation would be evaluated against the reg, and the ALJ will interpret the law for your situation on the spot. The ALJ's interpretation for you could be completely different than an identical set of facts for a different situation and pilot. Situations are intepreted on a case-by-case basis. Bottom line: Take the regs at their plain meaning, don't look for loopholes, don't read into them, and do what they tell you to do.

 

[A Squared]

>>>>Even though it might be the FAA's assistant general counsel who writes these FAQs, you cannot rely upon them as black-letter law. Same with John Lynch, to whom Midlifeflyer refers above.

Bobby, there’s a very important distinction between the Office of Chief Counsel and John Lynch. John Lynch’s opinions have no legal standing, the opinions issued through the Office of Chief Counsel are the interpretations which will be used for enforcement purposes. You are apparently not aware that the NTSB ALJ’s and the NTSB board has a statutory obligation to defer to the FAA’s "validly adopted interpretation of its regulations" This obligation is referenced in numerous NTSB orders. An interpretation issued by the Office of Chief Counsel is a "validly adopted interpretation of its regulations" and yes, it does become something very close to black letter law. In order to challenge an interpretation from the office of chief counsel. You must be able to move beyond the NTSB court system to a real court. Even if you are able to do that the Federal court system is extremely reluctant to rule against an FAA interpretation. I’m assuming that you are attempting to apply your understanding of real courts to the NTSB court. The NTSB judge is statutorily enjoined from interpreting the law counter to an FAA Counsel interpretation. The role of the NTSB ALJ is limited to reviewing factual and procedural aspects. Recently the NTSB opined that an FAA interpretation was not a "validly adopted interpretation of its regulations" because there was no written record of it, and the interpretation was made by an FAA prosecutor in the course of an enforcement proceeding. The FAA appealed to the DC court of appeals and the Court essentially ruled that *any* interpretation made by FAA legal counsel is a "validly adopted interpretation of its regulations" (FAA vs. NTSB No. 98-1365 ) Do not underestimate the vast legal power of the FAA and do not overestimate the very limited power of the NTSB.

>>>>If you were to go before an ALJ, the facts of your situation would be evaluated against the reg, and the ALJ will interpret the law for your situation on the spot. The ALJ's interpretation for you could be completely different than an identical set of facts for a different situation and pilot.

Again, not true, the FAA chief counsel interprets the law, and the NTSB is bound to that interpretation. If you read NTSB orders, (and I’ve read a bunch of them) you will see repeated reference to the NTSB’s inability to interpret a regulation differently that FAA’s Legal Counsel.


>>>>>>(emphasis added) That part is crap. What if I commence an ILS in IMC and break out at 500' AGL? I don't get to count the approach?? Baloney!

I will concede that the interpretation is not terribly clear. It says that the approach must be "flown in either actual or simulated IFR conditions" and it says that except for safety considerations it must be flown to the minimum altitude. So does that mean that it must be flown in IMC to Minimums? Certainly there are 2 different ways of looking at that. It seems that this interpretation could use a little interpretation. However, it would be a mistake to ignore this interpretation, because you believe that an interpretation by the assistant chief counsel is invalid. This interpretation, as any other from the office of chief counsel is about as close as you can come to being black letter law, without actually being black letter law. In order to prevail over the FAA’s interpretation, you would have to go way, way up in the federal court system, I don’t know how far. It is significant that the DC federal court of appeals has already refused to question an FAA legal interpretation or allow the NTSB to question it.

added later: The requirement for the NTSB to defer to a "validly adopted interpretation" comes from the FAA Civil Penalty Administrative Assessment Act of 1992, P.L. No. 102-345.

It would be difficult to argue that an interpreation authored and published by the Office of Chief Counsel is not a "validly adopted interpretation"

 

[midlifeflyer]

So why the hell are you dreaming up you're own crap? It's talking about shooting the approach down to minimums, not the weather "idiot". If the weather is IMC, that doesn't mean it has to be "at" minimums. If it did, no one would be able to maintain their currency. Last time I checked, IMC was below 1000/3.

I'm a veteran of a couple of "how much IMC before it counts" wars. I hadn't heard this take on it before. Although, like most of the "answers", it has it faults, I like it.

 

[midlifeflyer]

Uh oh. When I posted that last message, I didn't realize that another "how much is enough" war has started. For those interested in the controversy, here's a summary of the three primary positions and the support for them (no, I'm not typing this now; it's a cut and paste from my personal FAQ)

==================
If you look at 61.57(c) (instrument currency) you'll see that the 6 instrument approaches that have to have been done in the prior 6 months must be "performed and logged under actual or simulated instrument conditions..." Some of the other requirements have changed through the years, but this one has been with us for a while.

Sounds pretty simple, doesn't it? Except some idiot thought to ask, "How much actual is actual?" What if you pass through a single scattered cloud on the way down for a total of 5 seconds of "actual"? Can you count the approach?

Sometime in 1989 or 1990, it seems FAAviation News ran an article that said that you had to fly the approach to minimums in IMC in order for it to count. Someone wrote in pointing out the illogic of a rule that meant that a very experienced pilot who flew hard IMC all the time would probably not be able to log the approaches, since most approaches don't involve breaking out at minimums.

In the July/August 1990 issue, FAAviation News replied to the writer:

"Once you have been cleared for and have initiated an approach in IMC, you may log that approach for instrument currency, regardless of the altitude at which you break out of the clouds"

Problem is that this answer doesn't work either. Now, you're on a feeder route to the IAF above the cloud deck when you're cleared for the approach. You fly the full approach, enter the clouds just above glideslope intercept and break out at 200 AGL with 1/4 mile visibility. Oops! Sorry! You were not "cleared for and have initiated an approach in IMC".

(You're starting to see why I called the person who asked the "How much" question for the first time an idiot.)

In 1992, the FAA legal counsel chimed in:

"Second, you questioned how low a pilot must descend (i.e., minimum descent altitude or decision height or full stop landing) on the six instrument approaches he must log to meet the recent IFR experience requirements specified in FAR Section 61.57(e)(1)(i) (14 CFR Sec. 61.57 (e)(1)(i)). You also asked if an instrument approach "counts" if only part of the approach is conducted in actual IFR conditions. Section 61.57(e)(1)(i) states that:

No pilot may act as pilot in command under IFR, nor in weather conditions less than the minimums prescribed for VFR, unless he has, within the past 6 calendar months - (i) In the case of an aircraft other than a glider, logged at least 6 hours of instrument time under actual or simulated IFR conditions, at least 3 of which were in flight in the category of aircraft involved, including at least six instrument approaches, or passed an instrument competency check in the category of aircraft involved.

For currency purposes, an instrument approach under Section 61.57(e) (1)(i) may be flown in either actual or simulated IFR conditions. Further, unless the instrument approach procedure must be abandoned for safety reasons, we believe the pilot must follow the instrument approach procedure to minimum descent altitude or decision height."

Uh-oh! If you take the opinion at faces value, there's that reasoning again that essentially says that if you don't go missed, you can't log it.

There is a strong school of thought out there that says that what it "looks like" the FAA Counsel said is not what they meant. Note that despite the question, although the answer says that you have to follow the procedure all the way (unless it's not safe), it does not say that you have to follow the procedure all the way "in actual IFR conditions."

(You can see where his is much better fodder for arguments than anything else in the logging arena.)

The camp that says that the legal counsel didn't mean all the way in IMC (call them the "Rule of Reason" school) are essentially saying that "How much" is one of those undefined terms. Not everything is susceptible to precise definition. Try to thing of all of the scenarios and come out with a rule that covers every probably (let alone possible) approach scenario. How many pages did you use?

When Part 61 was revised in 1997, there was a proposal to write the rule so that, in order to count, approaches had to be flown to MDA or DA to count. They got a lot of comments, including one that said,

"One commenter suggests revising the definition to permit the pilot to terminate the approach prior to DH or MDA for safety reasons. Another commenter proposes to define "instrument approach" as " * * * an approach procedure defined in part 97 and conducted in accordance with that procedure or as directed by ATC to a point beyond an initial approach fix defined for that procedure." The commenter explains that this definition would allow for logging instrument approaches that require some portion of the published approach procedure to be followed in order for the pilot to establish visual references to the runway"

The FAA decided against the new requirement.

Some point to the fact that the FAA posted this comment as support for the rule of reason approach.

Whew!

 

[bobbysamd]

So what IS black-letter law for the FAA?

An interpretation issued by the Office of Chief Counsel is a "validly adopted interpretation of its regulations" and yes, it does become something very close to black letter law. In order to challenge an interpretation from the office of chief counsel. You must be able to move beyond the NTSB court system to a real court.

So, is this something like an IRS Private-Letter ruling? Although you might have precedent on your side in an IRS matter, each case is decided on a case-by-case basis. Private-Letter rulings at least give you an idea where the wind is blowing, but are not authority.

Do the Office of Chief Counsel interpretations establish precedent? I realize that administrative law procedings operate differently than courts of law. Courts of law are bound to follow precedent. Having said that, ALJs can find that your set of facts are different than a similar set of facts. Although these interpretations may be persuasive, I don't think that I would rely on them 100% for rules interpretations.

And if I was in IMC, and the ATIS reported weather below VFI mins, that the ILS 35R approach is in use, and ATC was giving me vectors to the localizer or cleared me for the approach, I established myself on the approach and broke out in the clear at even 800' AGL with good vis, I would still count the approach for currency, despite the Chief Counsel's opinion that it must be flown to mins. After all, I needed the approach to let down to the airport. On the other hand, if the weather is CAVU but I decided the remain on the guages instead of taking a visual approach, I would not count it for currency.

 

[A Squared]

Mark,

Thanks for the history lesson. I agree that the strictest reading of the legal counsel is not a particularly reasonable one and probably serves no-one. I don't particularly favor that strictest reading, and I probably overstated the case when I first introduced it. Anyway, the point I was trying to make was that JungleJetFO's assertion that you may log approaches when not in IMC conditions and not simulating instrument conditions is absurd. I think that we all agree on that. (with the possible exception of JungleJetFO)


bobby,

>>>>So, is this something like an IRS Private-Letter ruling?

I don't know, I have no idea what an IRS private letter ruling is. I am not an attorney, merely someone who is interested in legal matters pertaining to aviation. That said, my understanding of the situation comes from reading a lot of NTSB orders. I know that it is very common for the board to refuse to examine an FAA legal interpretation. The statutory mandate to abide by the FAA's own interprtation of thier own regulations comes from the legislation I mentioned earlier. Prior to that act, that same requirement to abide by the FAA's interpretation was based on a precedent established in some court of appeal. If I recall correctly it involved OSHA, but was construed to apply to all federal administrative law courts. I could look up the case for you if you're interested, but it would be only of historical interest as that precedent has now been adopted into legislation.

On top of that, the recent DC court of appeals decision FAA vs. NTSB, sets an extrordinarily low standard for what is a "validly adopted interpretation"

My understanding, perhaps flawed, is that it is impossible to challenge within the NTSB court system, an interpretation issued by the office of Chief Counsel, and it seems (based on FAA vs. NTSB) that the first level of appeal within the federal court system also refuses to question the FAA's own interpretations.

As far as I understand the situation, if the Office of Chief Counsel issues an official interpretation of 61.3 which says that you have to carry a laminated photo of Elvis along with your pilot certificate, the NTSB has no recourse but to sustain your violation if you are caught without your Elvis photo in a ramp check.

I assume that somplece within our justice system, there is a court in which you could challenge an FAA legal Counsel interpretation which is not suppoerted in the regulations. I don't know where that court is.

regards

 

[JungleJetFO]

can you log an instrument approach if its VMC, single pilot IFR?...assuming you're IFR current and you just shot an ILS approach down to the DH (in an IFR flight plan and cleared for the approach) and full stop landing.

Since this is your thread and it should really be about answering your question, I will point out where I'm coming from, since you're probably a lot more confused now. Some on this thread have made asumptions that I was telling you that you could log VMC approaches for currency. Never wrote or said that anywhere. This thread is about logging VMC approaches. Very simply, making entries in your logbook to reflect what you flew. I assume you are well aware of currency issues and assume you know that you have to be in actual or simulated conditions to log an instrument approach for currency. We all know that as instrument rated pilots. If you did not, now you do and your question has probably been answered. But I am of a different mind then others on what you can put in or "log" in your logbook. My goal has always been to fly for hire . I do not believe there is any problem with you logging a VMC instrument approach. Your logbook is and should be a record of your aeronautical experience. Some will say that is falsification, but as long as you are not counting that approach toward currency, I do not believe it's a falsification issue.
So, I make the assumption that your real question is, what is a VMC instrument approach worth then? If it doesn't count for anything, then why put it in your logbook? I think it counts for a lot. Countless ways. One, it reflects your abilities and experience if you are flying complex instrument approaches, no matter what the weather. That goes a long way if you ever have a desire toward flying for a profession. Second, heaven forbid you get in a mishap, it will be proof of your abilities and professionalism as a pilot. Lastly, you never know what the FAA will write in the future or what companies will look or ask for when they want to hire a pilot. Let's say you start flying international with very difficult non-precision approaches in VMC. Where are you going to record that? Put it in your logbook.

 

[avbug]

I learned a lot sitting in the window aisle of a ticketed flight in a 737 two weeks ago. Can I log that, too? Uh-huh. That's what I thought.

Your logbook is a legal document, and a required document under 14 CFR 61. You should treat it as such, logging in strict accordance with 61.51, and appropriate interpretations thereof, and advisory circulars pertaining thereto.

As one who wants to be a professional pilot, it behooves you to log in a manner that is legal, and virtually universally accepted. Perhaps you have a column for low level that you log any time you're below the customary FL350...12,000 would be low level. Not a classification by the FAA, but then neither is logging of approaches not flown for currency. Also sort of a ridiculous classification.

Jim, that tactic might work if your opposing counsel were a 12 year old with a sheepskin from a box of crackerjacks. But as your opposing counsel is an attorney for the FAA, you'll find it is really a waste of time. Reference to ASquared comments above, he is dead on the money about the weight that the interpretation carries...and bear in mind that you're not burning new territory here. This interpretation will have the weight of 11 years caselaw behind it (it was issued in 1992). Therefore, you're not just going to combat the verbiage of the legal rendering, but also the decisions in every single case in which it has been used...each supporting it.

But if you have the money to throw away trying, go for it!

 

[bobbysamd]

bobby,

>>>>So, is this something like an IRS Private-Letter ruling?

I don't know, I have no idea what an IRS private letter ruling is

The following is a good definition of IRS Private Letter Rulings:

Private Letter Rulings ("PLRs"), Technical Advice Memoranda ("TAMs") and Field Service Advice Memoranda ("FSAs") are taxpayer-specific rulings furnished by the IRS National Office in response to requests made by taxpayers and/or Service officials.

It is important to note that, pursuant to 26 USC 6110(k)(3), such items cannot be used or cited as precedent.

(emphasis added)

Straight from the horse's mouth. Which would lead me to believe that FAA Chief Counsel Office opinions carry the same lack of authority. "Authority" meaning, in the legal sense, that these opinions are not binding precedent.

I (finally) would agree with Jim that the FAA Chief Counsel issued a flawed opinion. "Actual" or "simulated" instrument conditions are visual and/or meteorological phenomena.

I used to write in my logbooks every approach I shot or was a participant. Meaning, for the latter, that I wrote in my logbook my students' approaches. But I wrote them in, along with the type of flights they were, to have a record of all of the details of the flight. I did that to (1) to have a thorough record of the flight, (2) to have a complete record of my training activities and (3) to help a student reconstruct his/her logbook if it ever became lost. The approaches that I logged for currency, in simulated or actual instrument conditions, I listed in a separate column, even if it duplicated the "remarks" section of my logbook. For those reasons, I agree with Jungle Jet's rationale.

Finally, I believe that you can appeal an unfavorable NTSB ALJ decision to the Federal Court of Appeals and then to the Supreme Court.

 

[avbug]

You can do that, Bobby, but it's on your nickle, and it's a whole lot easier to go bankrupt. Yes, the legal interpretations aren't gospel, but they are accepted and given strong preferential weight, and are defensible in administrative court. Their weight is not the same in civil court, but you have to get there first, and this only on your effort and your nickle upon completion of an appeal to the full board. Most people are broke before that happens.

The FAA, on the other hand, can go as long as they like...it's just a paper shuffle, it's their own interpretation supporting their own viewpoint, and unlike civil law, you are guilty until proven innocent. The burden of proof is on you, and the FAA may use their own statements in support of their own charges. Get the case to civil court and you can do something, but it's a long road, and it's definitely not in your favor. Consider the Hoover case.

 

[A Squared]

Bobby,

>>>>"It is important to note that, pursuant to 26 USC 6110(k)(3), such items cannot be used or cited as precedent."

My understanding is that a legal opinion from FAA counsel has a much authority that, both statutorily and judicially.

>>>"I used to write in my logbooks every approach I shot or was a participant."

There's a big difference between recording in the remarks section of your log what exercises you did with a student and logging approaches flown in VMC. Go back and read JunglejetFO's initial statements, back before he realized how indefensible his position was and started trying to "spin" his meaning. If the approach is recorded in a way that leaves no question that it was flown in VMC, that's one thing. If it is merely entered in the approach column, just like any other approach, with no further explanation, that's deceptive at best. I think that any FAA inspector would rightfully look apon such with a jaundiced eye.

>>>>>>"Finally, I believe that you can appeal an unfavorable NTSB ALJ decision to the Federal Court of Appeals and then to the Supreme Court."

In general, yes, but when speaking specifically about an FAA Counsel interpretation, the DC court of appeals has refused to question the FAA's interpretaiton of thier own regulations. If i'm not mistaken, an appeal to the Supreme Court must be based on the constitutionality of a law, so such an appeal would seem to require a constitutional review of the system of administrative law in general and specifically of the law which allows the FAA to interpret thier own regulations. I'm sure that you have a better understanding of the court system, so perhaps you can shed some light on this.

regards

 

[midlifeflyer]

Finally, I believe that you can appeal an unfavorable NTSB ALJ decision to the Federal Court of Appeals and then to the Supreme Court.

Administrative Law 101.

1. A Federal agency's interpretation of it's own regulations is entitled to deference. Essentially, so long as the interpretation is reasonable, it will be upheld. In the FAA context, this means that the NTSB, the US Courts of Appeals, and even the US Supremes will not overturn an official FAA interpretation of what the reg means.

2. A Federal Agency may interpret a regulation as meaning something specific for the very first time at a hearing. This means that if the language of a regulation is open to interpretation, the FAA doesn't have to tell you in advance what it means. If the FAA brings a certificate action against you, they can what the regulation "means" at the hearing and you're stuck with it. (#1) applies)

3. Whatever the "real" legal status of the FAA Chief Counsel Opinions, it does represent the interpretation given to the regs by the people with the direct responsibility of interpreting them for the FAA. Having said something very clearly, it would be hard to backtrack.

 

[avbug]

This is very true in administrative court. However, once the court case moves to the civil system, it's open to a lot more lattitude. While the interpretation itself won't be overturned, the introduction of greater lattitude in addressing not only the interpretation but the regulation, and other pertinent facts surrounding the case is allowable.

The administrative system is unique in that those making the rules are the same ones that charge you and try you. It's also unique in that guilt is an assumption, not a question or possibility. It's also unique in that the burden of proof rests upon the defendant, and not the prosecution. This is completely reversed in the civil system. Further, the typical rights that are anticipated in the civil system do not exist in the administrative system.

Moving the case to the civil system opens up much greater avenues for the accused. It also opens up the wallet of the accused, such that justice is largely dependent upon one's ability to pay.

 

[A Squared]

Mark,

I should point out the sentance you quoted was actually a quote from bobby's last post, I should have annotated it as such. The paragraph following it is mine and is a response. For what it's worth, your primer on administrative law fits fairly well with my understanding. One thing I wonder is at what stage can an unreasonable interpretation be challenged? Take for example my previous hypothetical example of the photo of Elvis. At what stage does someone with authority tell the FAA "hey, bonehead, there's nothing about elvis photos in 61.3"? (or words to that effect)

I can think of at least 2 legal counsel interpretations which seem to be at odds with the text of the regulation as written. What hapens in those cases?

 

[JungleJetFO]

?

Go back and read JunglejetFO's initial statements, back before he realized how indefensible his position was and started trying to "spin" his meaning. If the approach is recorded in a way that leaves no question that it was flown in VMC, that's one thing. If it is merely entered in the approach column, just like any other approach, with no further explanation, that's deceptive at best. I think that any FAA inspector would rightfully look apon such with a jaundiced eye.

ASSquared, were you beaten as a child or what?

 

[A Squared]

JunglejetFO,

I don't think anyone's talking to you. About you, perhaps, but not to you. If you have something intelligent to contribute, by all means, go ahead. If you're commentary is limited to irrelevant insults and trying to explain what you *really* meant by "Who cares what the weather is?" perhaps it would be better if you kept that to yourself.

 

[CitationLover]

calm down guys, you are arguing about government reg's......how pathetic is that?!?!

how many people actually "fly" their currencies versus just doing 6 in an approved PCATD?

 

[bobbysamd]

Logging approaches - back to square one

>>>"I used to write in my logbooks every approach I shot or was a participant."

There's a big difference between recording in the remarks section of your log what exercises you did with a student and logging approaches flown in VMC.

Of course there is. That's why I said that the approaches that I counted toward currency, which were, of course, only the ones I flew myself, are the ones that appeared in a separate column for "approaches." Only the ones that you fly yourself and, once again in actualor simulated instrument conditions, can count for currency.

If a case makes it to the Supremes and is granted certioari it usually means that the underlying law is coming under review.

 

[bobbysamd]

Actual "currency"

calm down guys, you are arguing about government reg's......how pathetic is that?!?!

how many people actually "fly" their currencies versus just doing 6 in an approved PCATD?

That's a good point. I never flew enough IFR myself to have the privilege of counting approaches toward currency. I always maintained currency by getting a colleague to give me an ICC (proficiency check), or by getting one on a 141 periodic ride. My most recent was ten years ago - before the rules were tightened to make IPCs almost like taking the instrument practical all over again.

 

[midlifeflyer]

One thing I wonder is at what stage can an unreasonable interpretation be challenged?

It would normally take place during an enforcement proceeding. I'm a little rusty on my admin procedure, but I'm pretty sure that the challenge could not be raised for the first time in an appellate court. Whether it has to be raised for the firtst at the FAA hearing stage or can wait until the NTSB level is what I'm not too sure about.

You =could= write to the FAA l;legal division about a concern and maybe they'll get around to answering it. That's how these things got started to begin with.

I can think of at least 2 legal counsel interpretations which seem to be at odds with the text of the regulation as written. What happens in those cases?

"Seem to be" might not cut it for "unreasonable". Which ones are you referring to?

 

[A Squared]

Mark,

One of the interpretations regards tail end repositioning (no revenue passengers or cargo) of empty aircraft by Part 135 or Part 121 operators, and whether such a flight is subject to the flight time limitations of the respective parts. FAA counsel has on several occasions issued interpretations which said that the flight times did not apply to the repositioning flights, as long as the pilot(s) met all applicable flight and duty limitations before being assigned a subsequent revenue flight. I agree with the *principle* of this interpretation, in that the purpose of the flight and duty time limitations are for the protection of the fare paying public, not to protect the safety of the pilot beyond the level that part 91 protects the pilot. So if the fare paying public is not on board, then the fatigue state of the crew is an issue between the crew, the company and the provisions of Part 91. Such a flight would be considered "commercial flying" as the pilots would be paid.

So far so good. Except; this interpretation seems to me to be at odds with the text of the regulation.

Here’s the text of 121.471. The equivalent regulation in Part 135 is worded almost identically.

121.471 "No certificate holder conducting domestic operations may schedule any flight crewmember and no flight crewmember may accept an assignment for flight time in scheduled air transportation or in other commercial flying if that crewmember's total flight time in all commercial flying will exceed ...(states flight time limitations)..."

Now, I’ve read this as carefully as I can and thought about it from as many different angles as I can and the words still mean the same thing to me.

The way I read those words are as follows:

A certificate holder is prohibited from scheduling a pilot for scheduled air transportation *or in other commercial flying* which will exceed the stated time limits.

It seems to me that if the regulation was intended not to include tailend repositioning flights, the regulation would have been worded this way:

"No certificate holder conducting domestic operations may schedule any flight crewmember and no flight crewmember may accept an assignment for flight time in scheduled air transportation if that crewmember's total flight time in all commercial flying will exceed....(flight time limitations)

This wording would clearly permit non-part121 flight assignments which would exceed the flight limitations, whereas the actual wording of the regulation seems to me to explicitly prohibit non-part 121 flights which would exceed 121 flight time limitations.

Is the FAA free to interpret the regulations contrary to their plain english meaning?

regards

 

[midlifeflyer]

One of the interpretations regards tail end repositioning (no revenue passengers or cargo) of empty aircraft by Part 135 or Part 121 operators, and whether such a flight is subject to the flight time limitations of the respective parts.

Ah! Part 135/121 flight time requirements and how they are calculated. I've seen a couple of discussions about them, tried to look up some of the interpretations and have noticed that they do generally twist and turn quite a bit. Never found the personal interest in diving into them myself, though. Still don't

No answer, but let me take a wild guess. You're talking about a situation in which the pilot is at the end of her duty day and is then assigned a repositioning flight, right? They said that a repositoning flight is a part 91 flight, no matter who you're repositoning it for. So it's simply not subject to 135 or 121 time limits. (But it would be counted as "commercial flying" to figure out if the next 121/135 flight exceeded the limits).

Am I close? Are there any time limits that apply to corporate pilots operating exclusively under Part 91?

 

[KickSave]

original question?

Ok I've read most every word here. While I understand the FARs are not clear on what IS an Instrument Approach, therefore loggable as one for CURRENCY, this is what I understand so far.

Lynches interpretation was that an approach in Simulated, or Actual, must be flown to the minimums to be logged. Sounds silly to me. Seems much more sensable that simulated approaches must be done to minimums, but when actual IMC is involved, requiring it to be IMC all the way down to mins is unrealistic and would prevent the logging of 95% of those real life IMC approaches. What about an approach, like most of the ones here in SoCal, where you have a thin layer all around the airport that you might not poke into until well past the FAF, but you break out of well before the DH or MDA? That sure sounds like an actual instrument approach to me.

One of my instructors told me that if you are in Actual IMC at the IAF or FAF, at the OM, or at the IM, then you should log it as an Instrument Approach. This makes sense to me, as you really did need an Approach to get in safely, but not necessarily 100% of the approach was flown in IMC. This is how I've been logging my approaches. But the Regs do not state this, nor does Lynch. It seems obvious to me that an approach done IFR but completely in VMC will not qualify as an instrument approach because you DID NOT fly solely by reference to instruments at all, and therefore should not be logged for currency. Log it in your notes if you want, but not under the Approach column that totals up approaches for currency.

Does anyone want to support or disprove this method?

/Dave

 

[A Squared]

Mark,

>>>> Are there any time limits that apply to corporate pilots operating exclusively under Part 91?

No, the only "limitation" is 91.13, careless and reckless operation. Flying when fatigued could be considered to be a violation of 91.13. Other than that, there are no limits to flight hours or duty time in Part 91, corporate or otherwise.

>>>>You're talking about a situation in which the pilot is at the end of her duty day and is then assigned a repositioning flight, right? They said that a repositoning flight is a part 91 flight, no matter who you're repositoning it for. So it's simply not subject to 135 or 121 time limits. (But it would be counted as "commercial flying" to figure out if the next 121/135 flight exceeded the limits). Am I close?

Yes, that is the situation. The flight would not be subject to part 135 or 121 regulations, but it is considered commercial flying, as the pilot is getting paid to exercise privileges of his Pilot Certificate.

Clearly, the time must be considered for subsequent revenue flights, that's not an issue.

However 121.471 (and it's counterpart in Part 135) seem to prohibit the certificate holder from assigning and the pilot from accepting assigments for"other commercial flying" in excess of the flight time limits.

If not, what are the purpose of the words "in other commercial flying" in this phrase:

".....an assignment for flight time in scheduled air transportation or in other commercial flying.."


My question is twofold. First it seems to me that the plain english meaning of the words prohibit a certificate holder from assigining "other commercial flying" in excess of 121 or 135 limits. Is there something I'm missing here? The second part is if the plain english meaning is that the certificate holder may not assign "other commercial flying" is FAA counsel permitted to interpret the regulation contrary to it's plain english meaning? (There are several Chief Counsel interpretation which say that repositioning flights may exceed flight time limitations)


To add a little more food for thought, a pilot I know well was the subject of an enforcement preceeding for this. It was a while back, I don't know how long ago. He was flying for a Part 135 operator. According to my understanding of the story he had flown a full day under part 135, then was asked to fly a mechanic, tools and parts to another location to fix a helicopter which belonged to the certificate holder (obviously not a part 135 flight), and the FAA brought an enforcement action against him for exceeding flight time limitations in "other commercial flying" assigned by the certificate holder. Ultimately it was dismissed as a stale complaint, but the enforcement seems to support my reading of the regulation.


regards

 

[avbug]

A Squared,

There isn't a conflict. The issue must be approached in the language that no certificate holder may assign, and no flight crew member may accept an assignment.

Part 91 flying, as a commercial paid venture, may be flown so long as it doesn't exceed the assignment. If a pilot flies his daily limit and then is presented with the opportunity to remain over night or ferry the airplane home under Part 91, he may do so. He is not assigned to make the flight, and is not accepting an assignment. He's given the choice, and he returns home. This is how it's typically done.

His assigned duty ends, but his rest period doesn't begin until he gets home. His flying is not part of as assignment, and doesn't violate the regulation.

The situation in which your associate was violated for taking a company assignment at the end of his 135 duty assignments does not meet these requirements. This is clearly another assignment, which he cannot accept, nor can the company assign.

Kicksave,

Re-read the material again. Your question has been covered in-depth. Starting the approach in instrument conditions is not adequate. It must be flown to minimums in actual or simulated conditions.

John Lynch's commentary is not an interpretation, and has no standing or bearing. It's nice to know, but not always accurate, and sometimes rather opinionated.

The regulations are not unclear on what constitutes an approach, or a legal approach for currency.

 

[bigD]

The regulations are not unclear on what constitutes an approach, or a legal approach for currency.

If they weren't unclear, then you wouldn't have so many questions about it. While it may be clear to you, it's apparently not so obvious to everyone else, including me. This issue of having to fly approaches to mins to log them is a pretty big deal...

 

[avbug]

It really is quite clear. Many times these questions come from those determined to fine loopholes, those who refuse to read, those who would rather ask than study, or those who have made up their minds and only want to argue about it. The regulation itself is quite clear on the subject.

Many times it's a matter of those who take no thought, but to ask.

Add to it the interpretations provided to further understand the material, and it isn't rocket science.

The minute portion of the code of federal regulations to which we refer as the "FAR's" is actually one of the shortest, and most concise of any set of regulations in the entire compendium.

 

[Checks]

ok, avweb, I'll play.

define in "actual instrument conditions"

 

[bigD]

Well Avbug, you're a smarter man than I. Feel free to write me off as just another dumb, lazy low time pilot, but I have yet to see anything in the words of the FAR's themselves that address the issue one way or another.

 

[midlifeflyer]

define in "actual instrument conditions"

Although I disagree with AvBug's conclusion that an approach "must be flown to minimums in actual or simulated conditions" where the conditons must exist all the way down to minimums to count (which means that the pilot who hand flies hard IMC every single day when the weather is 50' above minimums is not current, but the guy who puts the hood on twice a year and lets his autopilot fly his home base approach is), I'm sure we will agree with the definition of "actual instrument conditions" given in an almost 14 year old FAA legal opinion.

"Actual" instrument flight conditions occur when some outside conditions make it necessary for the pilot to use the aircraft instruments in order to maintain adequate control over the aircraft.