Medical certificate & 135 instruction

[Prof. ATP]

I'm hoping that someone on the forum has already fought this battle.

Can someone without a medical certificate but otherwise qualified as PIC act as a flight instructor under part 135? [It is clear that one can instruct under Part 61, as long as one does not act as a required crewmember. But Part 135 is different.]

Our POI says "no", using a convoluted reading of 135.338(e), which says "(e) An airman who does not hold a medical certificate may function as a flight instructor in an aircraft if functioning as a non-required crewmember, but may not serve as a flightcrew member in operations under this part." The convoluted reading is that the instructor is required to give instruction, so the instructor is a required crewmember. I would like to interpret required as "required by the type certificate", but he says his boss says no.

Since he doesn't have a medical, either, he would like to hear a different answer than the one he got.

Can anyone help?

 

[nosehair]

I can't tell you where I saw it, but somewhere on these boards I saw an NTSB ruling that students and instructors are not "crewmembers". I personally have held on to that idea, but not in the way it is meant in those "required crewmember" roles. That speaks to aircraft type required or pax carrying operational requirements - not training.

Unless it is written into your company training requirements - that all instructors must have a medical.

 

[Prof. ATP]

I can't tell you where I saw it, but somewhere on these boards I saw an NTSB ruling that students and instructors are not "crewmembers".

Instructors are crewmembers, as defined in FAR 1. The question hinges on the definition of "required".

 

[avbug]

The following excerpt of a FAA Chief Legal Counsel interpretation of the regulation may be of assistance. I have only included the relevant portion, as three questions were answered. Only the third is relevant to your request.

September 13, 1989

Mr. Bruce J. Brotman

Dear Mr. Brotman:

This is in response to your March 1, 1989, letter to the Federal Aviation Administration (FAA), Office of the Chief Counsel, in which you pose questions relating to certain requirements in Parts 61 and 91 of the Federal Aviation Regulations (FAR).

This also acknowledges receipt of your July 17, 1989, letter to Administrator Busey, in which you inquire about the status of this response. Please accept our apology for the delay in responding to you. The office responsible for researching and drafting answers to your questions has been preoccupied with a number of high priority activities which, unfortunately, has prevented a more timely response.

For your convenience, each of your questions is set out below in the order in which they appeared in your March 1, 1989, letter, followed by our response.

Questions Related to TAB/AERO Publication

In addition to the above two questions, you submitted a series of questions regarding interpretations previously published by FAA and which reappeared in a TAB/AERO publication. Your introductory comment, questions, and TAB/AERO responses, along with FAA's responses, are set out below.

Introductory Comment to TAB/AERO Questions

We have recently reviewed portions of a TAB/AERO publication containing excerpts from "Flight Forums" published between 1974 and 1987. The question and answers elected by TAB/AERO, according to them, have undergone a general review of TAB/AERO staff and the editorial staff of FAA Aviation News. However, recognizing that regulations and procedures occasionally change, we would seek the FAA's current interpretation.

TAB/AERO Question #3

FAR Section 61.19 states that a flight instructor's certificate is valid only while the holder has a current pilot certificate and a medical certificate appropriate to the pilot privileges being exercised. Would instruction from a CFI who has been denied a medical certificate be accepted for an additional rating?

TAB/AERO Response

A CFI who does not hold a current medical certificate, but is not acting as PIC or as a required flightcrew member, may give creditable flight instruction to a pilot who is fully qualified and currently rated to act as PIC for the aircraft. A nonmedically current CFI is not permitted to give flight instruction to a student pilot; to a pilot whose BFR has lapsed, or who is otherwise not qualified, rated, and current in the aircraft; to a noninstrument rated pilot in IMC or on an instrument flight plan; or to a pilot practicing instrument flight under a hood (which requires the presence of a safety pilot).

FAA Response

A certificated flight instructor who does not hold a valid medical certificate of any class may give creditable flight instruction under conditions which do not require that the instructor serve as a required crewmember or as pilot in command as the terms are defined under Section 1.1 of the FAR.

We trust the above response will prove helpful to you as a representative of the Allaire Airport Instructor's Association.

Sincerely,

Donald P. Byrne
Acting Assistant Chief Counsel

 

[avbug]

OCT. 5, 1978
MR. WILLMOT E. WHITE

Dear Mr. White:

This is in response to your letter of August 13, asking whether a certificated flight instructor (CFI) would be permitted to perform certain instructing duties without a valid medical certificate. You also state that the flight instructor would not necessarily have to act as pilot in command.

Section 61.3(c) of the Federal Aviation Regulations provides, in pertinent part, that no person may act as pilot in command or in any other capacity as a required flight crewmember of an aircraft under a certificate issued under part 61, unless that person has in his or her personal possession an appropriate current medical certificate issued under Part 67. Section 61.19(d)(1) provides that a flight instructor certificate is effective only while the holder has a current pilot certificate and a medical certificate appropriate to the pilot privileges being exercised.

Accordingly, a CFI giving flight instruction need not possess a valid medical certificate if the instructor is not exercising pilot privileges as pilot in command or a required crewmember.

It would be necessary for the CFI to act as pilot in command if the person being instructed were not qualified to do so, eg. if that person had not and the biennial flight review required by Section 61.57(a). similarly, the type certificate of the aircraft on which instruction is being given requires more than one pilot crewmember, the CFI would have to act as a required crewmember, unless another qualified pilot is in the aircraft.

We trust this satisfactorily answers your question.


Sincerely,
Original Signed by Carl B. Schellenberg
CARL B. SCHELLENBERG
Assistant Chief Counsel
Assistant Chief Counsel
Regulations and Enforcement Division
Office of the Chief Counsel

 

[Prof. ATP]

Thanks for the info, but the question is about instruction to pilots working for a Part 135 carrier, which does not require a flight instructor certificate. My FSDO agrees with the interpretations you gave as far as the requirement for a medical certificate while exercising the privileges of an instructor's certificate, but disagrees for part 135 instruction.

How long did it take to get a response from the FAA Legal department?

 

[avbug]

Two years or so, but an important medical tip: don't hold your breath

 

[atlcrashpad]

POI and FSDO

I'd go with what your POI and FSDO say. They will be the ones to violate you. Even if they are wrong, it will cost you to prove you're right.

 

[Trogdor]

I'd go with what your POI and FSDO say. They will be the ones to violate you. Even if they are wrong, it will cost you to prove you're right.

Good point.

 

[avbug]

You have no choice with the POI, but ask a hundred different inspectors at any FSDO(s) and you'll get a hundred different answers, each worth nothing, each only opinion, each without the authority to interpret the regulation.

An inspector doesn't "violate" you. The inspector initiates enforcement action, and then his or her authority is done.

Any answer you get at the FSDO level is without merit...it has no official backing, and you're on shaky ground. Further, w(h)eather it's spoken or in writing, it isn't defensible and it's nothing upon which you can fall back.

A required crewmember is one required by the regulations under which you're operating, or by the aircraft type certification. Unless the instructor is filling a required crewmember seat (eg, sitting in the right or left seat of an aircraft requiring two crewmembers by type certification), the instructor isn't a required crewmember...even if the person receiving the instruction is required to receive the instruction.

Remember that when acting under the auspices of a flight instructor certificate, one is not acting a pilot, but as a teacher. One does not need a medical certificate to teach. Even if it's important or required instruction. One does not require a medical certificate to teach a private pilot to fly instruments, even though one may be providing instruction required for the instrument rating. One need not hold a medical certificate to teach under 135, as previously identified by regulation.

§ 135.338 Qualifications: Flight instructors (aircraft) and flight instructors (simulator).

(b) No certificate holder may use a person, nor may any person serve as a flight instructor (aircraft) in a training program established under this subpart unless, with respect to the type, class, or category aircraft involved, that person -
(1) Holds the airman certificates and ratings required to serve as a pilot in command in operations under this part;
(2) Has satisfactorily completed the training phases for the aircraft, including recurrent training, that are required to serve as a pilot in command in operations under this part;
(3) Has satisfactorily completed the proficiency or competency checks that are required to serve as a pilot in command in operations under this part;
(4) Has satisfactorily completed the applicable training requirements of § 135.340;
(5) Holds at least a Class III medical certificate; and
(6) Has satisfied the recency of experience requirements of § 135.247.

(e) An airman who does not hold a medical certificate may function as a flight instructor in an aircraft if functioning as a non-required crewmember, but may not serve as a flightcrew member in operations under this part.

14 CFR 135.338(e) clearly shows that a flight instructor may or may not be a required crewmember, depending on the position he or she fills in the aircraft. This subparagraph makes a distinction between a flight crewmember serving as a non-required crewmember, and also as flight crewmember under Part 135.

Part 119, which establishes and defines the need for (among other things) part 135, provides the following regarding the applicability of training flights:

§ 119.1 Applicability.

(d) This part does not govern operations conducted under part 91, subpart K (when common carriage is not involved) nor does it govern operations conducted under part 129, 133, 137, or 139 of this chapter.

(e) Except for operations when common carriage is not involved conducted with airplanes having a passenger-seat configuration of 20 seats or more, excluding any required crewmember seat, or a payload capacity of 6,000 pounds or more, this part does not apply to -

(1) Student instruction;

(3) Ferry or training flights;

Instruction and training flights under Part 135 operations are still conducted under Part 91, not under Part 135, in accordance with the operating regulations prescribed under Part 91. As the regulation defining the requirement for instruction and other flights conducted in accordance with Part 91 is Part 61, the requirements for flight instructors operating under Part 91 are also established under Part 61...and under Part 61, a flight instructor who is not acting as a required crewmember need not hold a medical certificate.

If one is not required by the type certification or the regulations under which one is operating (eg, a 135 operation requiring a SIC, for example), then one is not a required crewmember, even if giving instruction necessary to meet the requirements of Part 135.