logging instrument approach question

[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.