FAA Legal Interpretations

Periodically, the FAA will issue legal interpretations.  These are questions about how to interpret a regulation that are submitted to the FAA Legal team who then interpret how the regulation applies to the question asked.  They usually include a fairly technical legal discussion but can be very enlightening about how the regulatory process works.  These interpretations have also been known to completely change how regulations are applied to operators and airmen.

Here we collect interpretations that we think apply to our audience or that might be helpful to our audience.  We keep copies here to improve performance.  Current interpretations can be found on the FAA’s Legal Interpretation site.

Crew Rest/Duty Time Limitations

FAR 117

  • Application of FAR 117 Duty Time and Rest Requirements to Distance Learning (McEldowny 2015) – This interpretation covers scenarios where an employer requires the pilot to do various activities during a period of time without actually assigning when they needed to be done (except a deadline.)  The common scenario here is distance learning where a pilot is assigned to have it completed by a particular date but it doesn’t need to be completed at a certain time.  In these cases, it does not impact rest requirements or duty time limitations.  The time is considered “voluntary” because they pilot has an opportunity to manage their own time.  The pilot does have a requirement to show up for work rested.  Separately, the interpretation also limits the employer’s responsibility for personal activities that may induce fatigue.  (FAR 117.25)
  • Interpretation on Whether Drug and Alcohol Testing is Flight Duty Time under part 117 – One of the changes under FAR 117 was the shift in thinking from duty periods, where the pilot has responsibilities to the company, to a flight duty period which is a duty period in which the pilot has or expects to have a flight assignment or assignments.  It ends when no further flight assignments are expected.  The question in this interpretation surrounds the status of a random drug and alcohol test at the end of a pilot’s duty.  According to the interpretation, it is neither flight duty nor rest.  Under older terms, it would be duty time but as duty time is not limited under the new rules, there are no limits except that the carrier may not count it toward rest and still has the same requirements of travel time to the hotel, etc.
  • Exceeding Cumulative Limits Due to Circumstances Known Before Takeoff – This interpretation deals with delays in which a pilot’s schedule would have planned to complete within limits but due to unforeseen circumstances, it will exceed only the cumulative limits.  In this scenario, the pilot knew about the increased time and that they would exceed the limits, before takeoff.  There are some very narrow exceptions when doing governmental operations (e.g. CRAF) (FAR 117.23)
  • Definition of Other Commercial Flying as Relates to FAR 117/121 – This interpretation combines both 121 and 117 asking about outside ground instruction as it relates to other commercial activities. As should be expected, response was that ground instruction is not flight time and therefore doesn’t impinge on the cumulative limits of 117. At the same time, and this is important for pilots to remember, the pilot has a responsibility to show up for work fit for duty, including being rested regardless of outside activities.
  • Legality of Changing a Deadhead Only Duty Period to a Flight Duty Period – This one is pretty straightforward. Here’s the scenario: a pilot was originally scheduled for a duty period that only involved a deadhead. Therefore, it wasn’t a flight duty period.  However, after the pilot showed up for the deadhead, the company changed the assignment to operate the leg. So, it’s now a flight duty period going back to the show time for the deadhead (or duty on time if that was earlier for some reason).  The question in this interpretation was whether the company could do that without giving them a new 10 hour rest period. The answer is that this is a legal assignment provided that the pilot had a ten hour rest period prior to the starting time of the FDP, and that all other requirements are met. Basically, the new assignment is legal if it would have been legal had it been the original assignment. (FAR 117.25)
  • Ability to Part 91 Tail-End Ferries under FAR 117 OperationsHistorically, ferries at the end of a duty period were considered under Part 91 operations and therefore basically didn’t have any legal limits.  This interpretation clearly says that if the duty period started with passenger carrying operations, tail-end ferries are part of the 117 limits for that duty period, regardless of other considerations (i.e. Part 117 limits still apply.) (FAR 117.1, 117.11. 117.23, 117.25)

FAR Part 121

  • Definition of Other Commercial Flying as Relates to FAR 117/121 – This interpretation combines both 121 and 117 asking about outside ground instruction as it relates to other commercial activities. As should be expected, response was that ground instruction is not flight time and therefore doesn’t impinge on the cumulative limits of 117. At the same time, and this is important for pilots to remember, the pilot has a responsibility to show up for work fit for duty, including being rested regardless of outside activities.

FAR Part 135

Basically, to use the benefits of augmented crews (extra pilots to fly longer legs) the aircraft must have adequate rest facilities, all schedules must meet regulatory limits and be realistic. To meet those requirements, they can’t count time resting on the airplane as “rest” as the pilot is not free from all obligations for the operator (indeed, they scheduled them on the airplane).  Realistic schedules are somewhat elusive, but basically if the flight could normally be expected to complete in the allotted time, and the reason it isn’t is beyond the control of the certificate holder it should be okay. In this case, the operator ran multiple flight plans before the day of the flight and they met the limits. However, the winds were stronger on the day of the operation and the return leg exceeded the limit. Since this was out of the control of the operator, it was permissible.

One interesting note here, in one of the scenarios, the operator was scheduling in accordance with what had been approved by their FAA inspector, but still weren’t in compliance. This does happen and is why a carrier needs to understand the rules too. Usually the carrier won’t get into trouble for it (and the pilot is far removed, assuming it wasn’t something dumb so they’re okay) but it can mean a real mess for the operator if their business relied on that approval.

Qualifications

FAR Part 61 – Qualifications and Training

  • Flying a US Certificated Airplane with a foreign license – This is an interesting interpretation that asks a question I had never considered. Of course, I’m an FAA certificated pilot so that may be why. The question centers around flying a U.S. Certificated airplane with a foreign license. Basically, you can fly a U.S. Certificated airplane with a foreign license when operating inside the territorial boundaries of that country. Otherwise, you need an FAA issues certificate.
  • Solo Endorsement for Solo flight versus a new type rating – This interpretation draws a distinction between the solo endorsement for a student pilot, which falls under its own set of regulations, from that required to get a new type rating. When you’re going for a new type rating, you need to be current with a biennial flight review and don’t have the same time restrictions as for a student pilot certificate. Probably very limited applicability.(14 C.F.R. part 61, subpart C , FAR 61.81, FAR 61.3)

FAR Part 135

  • Age Limitations for International Operations – This one involves age restrictions under FAR Parts 125 or 135. These are basically charter operations. If you’re less than 60, you’re fine. If you’re operating domestically, you’re fine. The mess comes in when you operate internationally. Basically the FAA tries to apply ICAO restrictions. The specifics are a bit confusing for here but basically for single pilot ops you must be less than 60 and for multi pilot you’re limited to 65 in many cases. You also, as of the time of this writing (there has been talk of changing this) , be paired with someone less than 60.(FAR 61.3, ICAO Requirements)

FAR Part 125

  • Age Limitations for International Operations – This one involves age restrictions under FAR Parts 125 or 135. These are basically charter operations. If you’re less than 60, you’re fine. If you’re operating domestically, you’re fine. The mess comes in when you operate internationally. Basically the FAA tries to apply ICAO restrictions. The specifics are a bit confusing for here but basically for single pilot ops you must be less than 60 and for multi pilot you’re limited to 65 in many cases. You also, as of the time of this writing (there has been talk of changing this) , be paired with someone less than 60. (FAR 61.3, ICAO Requirements)

Operational Interpretations

FAR 121 – Scheduled Operations

  • Acceptance of a Reroute without Dispatcher Concurrence -This one will surprise a lot of pilots. For those who don’t know, part 121 (Scheduled) operations not only have a pilot in command but also a Flight Dispatcher who plans and follows the flight en route. Jointly, they are considered to be responsible for the safe and legal outcome of the flight.This question centers around whether a pilot can accept a reroute via Controller Pilot Datalink Communications (CPDLC), an electronic form of pilot  controller communications, without the consideration of a dispatcher. The answer, whether via CPDLC or not, is no. The dispatcher has responsibility for maintaining operational control for the flight and part of that involves fuel analyses for the route.There are some ways “around” that which is employed by many carriers.  If re routes are considered, including fuel planning and weather, before departure (or presumably at some other point before receiving the reroute) then the pilot may accept it without further dispatcher consideration.  Some airlines accomplish this with a reroute policy, which has been considered in advance to avoid any fuel issues. Note that this often includes shorter routes which may have an impact on landing weight. (FAR 121.533, 121.593, & 121.663)
  • Applying EWINS interpretations when using Exemption 3585 – Airlines are allowed to get a program call Enhanced Weather Information Service, which allows them to use a commercial weather provider to write forecasts to dispatch airplanes. Like Deicing and other approved programs, these programs are created under direction and supervision of the FAA and must meet certain quality and procedural guidelines. Showing that even the FAA can make mistakes, this interpretation changes a previous FAA interpretation, now allowing use of EWINS forecasts when applying a dispatch exemption numbered 3585.  This exemption allows carriers to dispatch when the “conditional” part of the forecast is below minimums. (FAR 121.101)

FAR Part 91/Corporate/Business Aviation

  • Equippage Requirements for Aircraft When Filing IFR – This interpretation would only be applicable to owner-operator (Part 91) operations. It discusses that a pilot may file an IFR flight plan to an airport without an instrument approach provided that they file with a suitable alternate (which would require an approach).  Similarly, the questioner asks if you can file an IFR flight plan without equipment suitable to fly the filed route if you file with an alternate. I had to read that part twice because I couldn’t understand how a pilot would expect to get to the destination without the proper equipment to fly the route filed, regardless of whether or not if they filed an alternate. So, you can’t do that. No surprise there. (FAR 91.169 & 91.205)
  • Inoperative Equipment without an MEL – This is an interpretation where I have to wonder if the author of the question walked away with no more clarity.  The question centers around whether a piece of equipment that is not required by certification or operational rule can be “disabled by appropriate methods, techniques, and practices” so long as an appropriate maintenance entry was made under 91.213. Presumably, as mentioned in the interpretation, this is for operations without a Minimum Equipment List (MEL).

It seems that what the questioner is getting at is that they want to know if a piece of equipment is not required under certification or for the given operation, if it can be appropriately disabled and then not considered “inoperative” so that the restrictions of 91.213 would not have to be applied.  The FAA basically repeats back the regulation and any disabled equipment is considered inoperative and either the limits of an MEL or the limits of 91.213 must be applied.

These limits are that a person may takeoff an aircraft with inoperative instruments and equipment without an approved MEL provided:

  1. The flight is conducted in one of the types of aircraft listed in § 91.213( d)(l ), 2. The inoperative instruments and equipment are not those listed in 91.213(d)(2)(i)-(iv).
  2. The inoperative instruments and equipment are either a. removed from the aircraft, the cockpit control placarded, and the maintenance recorded in accordance to § 43 .9, or b. deactivated and placarded “inoperative” in accordance with par 3 and 4. A determination is made by an appropriate person that the inoperative instrument or equipment does not constitute a hazard to the aircraft. (FAR 91.213)
  • Filing an IFR Flight Plan without a Suitable Alternate – This interpretation would only be applicable to owner-operator (Part 91) operations. It discusses that a pilot may file an IFR flight plan to an airport without an instrument approach provided that they file with a suitable alternate (which would require an approach).  Similarly, the questioner asks if you can file an IFR flight plan without equipment suitable to fly the filed route if you file with an alternate. I had to read that part twice because I couldn’t understand how a pilot would expect to get to the destination without the proper equipment to fly the route filed, regardless of whether or not if they filed an alternate. So, you can’t do that. No surprise there. (FAR 91.205, 91.169)
  • Instructing in a Limited Category Airplane – Pretty straightforward and I feel for owners of limited category aircraft. The question answered here is whether instructing in a limited category civil aircraft is operating under compensation or hire, because 91.315 prohibits such activities. The answer is, yes it does based on the definition of operating for compensation or hire, regardless of whether or not you are operating as PIC. (FAR 91.315)

Other Interpretations of Note

Part 91/Corporate/Business Aviation

  • Cockpit Voice Recorder requirements on FAR Part 135 aircraft with one pilot instead of two – This is an interesting interpretation because I highlights a number of the challenges in the way FAA governs, interprets and applies regulations. At it’s core, the question is whether a requirement to have a CVR in certain 135 operations with two pilots still applies when the operator utilizes a provision allowing a single pilot and an approved autopilot. In this interpretation, the FAA has determined that it can indeed be done.
    What’s more interesting, though is the path to getting here. There are no indications that FAA intended the interplay between these regulations when they passed the.  Therefore, in a previous interpretation, the FAA had said that you couldn’t use the single pilot provision to get out of having a CVR.
    They later learned that some inspectors were approving carriers with programs that had no provisions for dual pilot IFR operations (which is when they apply), using single pilot only and not even having a program to train SICs. Of course, as often happens, some inspectors weren’t approving this, and so the previous interpretation disproportionately penalized some operators. With that knowledge, the FAA reinterpreted the requirement. It’s nice to see that they were willing to apply that level of reasonability. It doesn’t always happen. (135.105, 135.151)
  • Authority of FAA to issue deviation for Space Training in Experimental Aircraft – I highlight this interpretation because it helps to exemplify the FAA legal interpretation process. The question is whether the FAA can issue a deviation to allow training for a space vehicle. The answer is no because it isn’t legally flight training.  That’s not all that relevant to most of us.
    • What’s more interesting is the source. Note that this one is an FAA internal memo (they forgot the cover page for the TPS report) and not the usual letter format. That’s because it was requested by John Duncan who is the FAA Director Flight Standards Service (the Grand Poobah over all the inspectors and other Flight Standards folks). The process allows him to ask publicly instead of picking up the phone. The result is a public response for others to find. (FAR 91.319)