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.

 

[Prof. ATP]

There is no possible violation here. The situation boils down to this: if an appropriately-rated and current customer wants a Seneca rental checkout, then I may legally do it (exercising the privileges of my instructor certificate), but if we hire someone to fly a Seneca then, while the flight is legal (the new hire is PIC), it does not count toward the training required in our training manual. Once the required time has passed, I may then fly with the new hire on a supplemental basis as checkride prep, etc.

Once the new hire is 135 qualified, I may even instruct on a revenue flight ("here's how we go into XYZ at night"), although I may not manipulate the controls.

This is strictly a 135 question; parts 61 and 91 are covered. The crux is the ambiguity in the use of "required" on 135.338(e). Other places refer to "required pilot flight crewmember", but unfortunately this regulation omits the word.

 

[avbug]

Okay, we're talking Seneca being flown single pilot 135, with an autopilot exemption. Got it. From your description, you also rent the aircraft for outside use.

You can do all the instruction for outside rental you like, no restrictions, so long as the pilot whom you're checking out is legally capable of being PIC, if you don't hold a medical certificate.

If you are an instructor for your 135 company and do not hold a medical certificate (legal and permissible), you may provide instruction on the ground, in a simulator and in flight without holding a medical certificate, so long as you do not act as a required crewmember.

If you are in a single pilot aircraft providing instruction to a new hire pilot, you are not a required crewmember, even though your ops manual may require some specific instruction prepatory to a checkride. The instruction may be required, but you are not a required crewmember. You only become a required crewmember when you fill fly right or left seat in an aircraft requiring two crewmembers, or when you take on a responsibility such as SIC under 135 where a SIC is required by that part. In this case you do not need to be aboard, the instruction is conducted in accordance with Part 91 and within the certificate limitations of Part 61, even though the instruction is being used for Part 135.

You do not need the medical certificate. You are not acting as a required flight crewmember. Your training flights are not being conducted under Part 135. Your aircraft does not require a second crewmember. A medical certificate is not required under Part 135 to instruct, when not acting as a required flight crewmember. There should be no distinction between a new hire receiving initial flight instruction, and one who is already one the line receiving continuing flight instruction, as the FAA and regulation make no such distinction, insofar as who may provide that flight instruction.

Once the new hire is 135 qualified, I may even instruct on a revenue flight ("here's how we go into XYZ at night"), although I may not manipulate the controls.

As for your second paragraph, quoted above, as you're not a PIC or SIC and can't act as such without a medical certificate, you're not a company check airman, a representative of the Administrator, a representative of the National Transportation Safety Board, or a representative of the United States Postal Service, are you? If not, then when operating on a revenue flight, you still can't occupy that pilot seat. This is the case weather you manipulate the controls, or not.

Seems your POI is wrong on several counts.

§ 135.113 Passenger occupancy of pilot seat.
No certificate holder may operate an aircraft type certificated after October 15, 1971, that has a passenger seating configuration, excluding any pilot seat, of more than eight seats if any person other than the pilot in command, a second in command, a company check airman, or an authorized representative of the Administrator, the National Transportation Safety Board, or the United States Postal Service occupies a pilot seat.

§ 135.115 Manipulation of controls.
No pilot in command may allow any person to manipulate the flight controls of an aircraft during flight conducted under this part, nor may any person manipulate the controls during such flight unless that person is -
(a) A pilot employed by the certificate holder and qualified in the aircraft; or
(b) An authorized safety representative of the Administrator who has the permission of the pilot in command, is qualified in the aircraft, and is checking flight operations.

There is no difference between providing initial instruction for a new hire in your company Seneca, and one who is flying the line, with respect to your ability to do so without a medical certificate. Even though your operation and training program may require the instruction, the instructional training flight is NOT being conducted under Part 135, and even if it were, there is no requirement that you hold a medical certificate to provide that instruction.

Wherein lies the ambiguity?

 

[Prof. ATP]

Again, there is no question about the legality of any of these flights. The problem is that the FSDO won't let us count them towards someone's required training. This is their call and they have made it. I gather that you have not been in this situation yourself.

By the way, a Seneca has 6 seats (some had 7), and the King Air was type certificated before 1971, so I can occupy a pilot seat in either type. Can't touch the controls, though. Of course, I've done a lot of effective instruction without touching the controls.

Happy Thanksgiving.

 

[avbug]

Been in the situation of instructing under Part 135 without a medical? No.

Been in the situation of dealing with a POI that doesn't understand the regulation, and educating him or her? Yes.

From that vantage, it's all the same. Doesn't matter if it's a medical issue, duty issues, or any other particular...it's all the same. The POI thinks he or she knows best, and doesn't, and the avenue to educating him or her is what really counts, rather than the issue itself.

How willing you are to do that, or how capable you are in any given position to do so given status, circumstance, and the freedom to act, determines our ability to do so.

 

[transpac]

I think the rules are pretty clear that a medical certificate isn't needed to flight instruct in Part 61 and Part 135, provided the instructor isn't a required crewmember. But, there are other issues that might have a bearing on the issue. If the approved training program requires a medical certificate, that would be a binding requirement on that company. More likely, the training program requires the flight instructor to cccupy a pilot seat and to act as safety pilot during simulated IFR flight. Since much if not most Part 135 flight training happens during simulated IFR, an instructor who couldn't legally function as a safety pilot would be severely limited.

 

[Prof. ATP]

Since much if not most Part 135 flight training happens during simulated IFR, an instructor who couldn't legally function as a safety pilot would be severely limited.

We start new hires VFR only, long before they reach 135 IFR minimums, so there is really quite a bit that can be done that is not simulated IFR. The bottom line is that the POI won't approve an instructor without a medical, despite the clear legality of the flight, and instructor approval is at the POI's discretion.

 

[transpac]

We start new hires VFR only, long before they reach 135 IFR minimums, so there is really quite a bit that can be done that is not simulated IFR. The bottom line is that the POI won't approve an instructor without a medical, despite the clear legality of the flight, and instructor approval is at the POI's discretion.

While it's true that POIs approve/disapprove Part 135 instructors, they don't have authority to require anything beyond that required by the FARs. Sounds to me like an individual POI or maybe a FSDO Manager is making up his/her own rules. Have you talked to the Flight Stds Division Mgr in your region? He/she would probably be interested in local rules. If you don't agree with the Division Mgr, elevate it to AFS-1 in FAA HQ. If you don't like what AFS-1 says, take it to your congressman.

 

[nosehair]

If you don't agree with the Division Mgr, elevate it to AFS-1 in FAA HQ. If you don't like what AFS-1 says, take it to your congressman.

Ditto. Don't let'em intimidate you. Be prepared to educate up the line. I am still surprised that some of the old FAA staff still does not know that you can instruct without a medical. And there are still those that refuse to adhere to it.
...But also, be sure you are squeaky clean...
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