91 CFR 113(g) Right-of-Way Landing.
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Answered By AOPA

I'm an experienced CFI and I have discussed this question with many other CFIs and we are split on the correct answer. I wanted to know if there is an FAA official legal interpretation. The question is if an airplane on final has right-of-way over an airplane on base. Side (1) references the first line of (g) “Aircraft, while on final approach to land or while landing, have the right-of-way over other aircraft in flight…”. Side (2) references the second line of (g) which says “..the aircraft at the lower altitude has the right-of-way”.  The bottom line difference is if you read the second line as lesser then the first line.  That is, is the second line read as “if neither aircraft is on final then…” or is it just as important as the first or in fact more relevant because it is explicitly is about “when two or more aircraft are approaching an airport for the purpose of landing..”  I honestly believe either interpretation could be valid and the rule is vague.  There is AC 90-66, but I personally don't feel like any of the lines in that AC are clear enough to settle the debate.  So is there an official interpretation on this? What does AOPA legal say? Help us teach our students correctly! Thanks!

7 Replies
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AOPA Staff Answer

I could not find any Letters of Interpretation for this regulation, that cover this situation. My reading of the regulation is that the lower aircraft portion of the rule specifically states that it isn't to be used to take advantage of aircraft on final. This makes me believe that the aircraft on final ultimately has the right of way regardless, since the regulation states they have right-of-way over other aircraft in flight or operating on the surface. 

That being said, I agree with Steven, if there's any confusion try to work it out on the radio. If isn't going to happen, just yield to the other aircraft. AOPA's Pilot Protection Services team “legal team” doesn't answer questions on here. I do see that you have legal services. You can give them a call at 1-800-872-2672 and make selection #4 when prompted to speak to them, or shoot them an email at lsp@aopa.org. 

Sorry I can't offer anything other than just another CFI's opinion, but your question is a very valid one. If nothing else it's a good premise to create scenarios you can present to students to help build their ADM. Illustrating that there are regulations that are ambiguous and safety of flight is the primary concern. Even in situations where the regulations are clear they may have to give way to someone who's “understanding” is different. 

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Don't forget to include the left/right rule!

As for me, if we couldn't work things out on the radio, I'd yield to the other aircraft.

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Looks like Ron Levy posted a separate response to your question here; 

 

Looks like a well presented answer and is worth checking out for sure.

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1590 Posts

Hoss At AOPA: 
 

I could not find any Letters of Interpretation for this regulation, that cover this situation.

See Administrator v. Fekete.  In addition, interpretations advanced in the course of an enforcement action are controlling, even if they weren't advanced prior to the action.  See Garvey v. NTSB.

 My reading of the regulation is that the lower aircraft portion of the rule specifically states that it isn't to be used to take advantage of aircraft on final. This makes me believe that the aircraft on final ultimately has the right of way regardless, since the regulation states they have right-of-way over other aircraft in flight or operating on the surface. 

Exactly.

 

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@Ronald Levy
I am a CFI-AI-MEI since 1976. Been all around this issue for more years than I really wanted to be.  I appreciate your answers and references. After reading your responses and all the others, it struck me that your reference to the Fekete case was kind of a “that's it, wipe my hands together problem solved” response. To me when the case came down it caused more problems than it solved.

In my mind there is no doubt that Fekete was acting careless and reckless. No doubt he was wrong to cut others off that were on final just from a common sense and safety of flight perspective. His actions were jeopardizing peoples lives. To characterize it as a decision about ROW while fact was a mistake by the FAA and NTSB. Nothing we can do about it but still a mistake.

The problem or fallout from the decision is that the traffic pattern is being used less as pilots have figured out that a 6 or 7 mile straight in saves gas and they erroneously in my opinion (worth nothing) believe they always have the right of way. The example you use is 10 miles. The problem is the term “established on final” has never been defined. In the Fekete case those aircraft were “made to alter course or abandon the approach" which is as close to a definition to final approach as it goes. A Citation on 7 mile is on final where a Taylorcraft on 4 mile straight in is not (Opinion) Problem is pilots conveniently ignore that and use your 10 mile example and claim ROW. 

The practice instrument approach at my home dome has become highly problematic. Five flight schools in the area all descend on our non-towered airport because the local towered airports deny repeated approaches. It is so bad that we absolutely can not get a traffic pattern in for our PPL students. Worst yet is those same flight schools send their PPL students over because the same towers deny repeated visual approaches.  When we have 4-5 planes in the traffic pattern and then 5 aircraft line up for practice instrument approaches with 2-3 mile spacing, tell me how would you advise your solo student on downwind to proceed? (Tongue in cheek: there is a 25 mile limit on solo from field). This situation happens all summer long here, it isn't a hypothetical. 

Before the Fekete decision came out 91.113 was believed to give aircraft in the traffic pattern ROW over aircraft not in the traffic pattern. (Part of Fekete problem) Straight in and practice instrument approaches were not in the pattern and in the 70s and 80 had to negotiate (Read cooperate) with the pattern.  91.113 also mandated that we all play nice and cooperate and still does. The Fekete decision gave all the “rights” to the straight ins and gave the industry as a whole the idea that patterns don't mater. 

OK nof of the history as I saw it over the years. I am now very involved with the local FSDO as a Safety rep. My area of concern is the LOC and more to the point mid-air collisions. Those mid-airs on a 20 year average occur over 80% of the time in the traffic pattern.  Of the traffic pattern mid-airs 68% are on final and 67% of those are with a CFI onboard.  They are occurring as a result of wide downwind and long extended base.  Another aircraft enters the pattern not recognizing the wide, long aircraft and both end up on final.  Extending downwind to compensate for that straight-in is jeopardizing peoples lives. Then there is the old CFI argument that you should always stay gliding distance from the airport in the pattern. While I have lost two engines in the pattern over the years I have never given that argument much weight, its the mid-air collision potential that is real. The FAA is recognizing this as a trend. GA has 27.9 accidents per 100K flight hours where the airlines and military are less, much less than 1. Two years ago we had 30 mid-airs in the US in one year. We have had 1 a month this year. 

So excuse me, but wiping your hands and saying that's it,  is killing people and has been for 20 years. 

Fekete decision standing, Straight-in don't have the ROW until “On final Approach”. A reasonable definition for normal GA aircraft is 3 miles, before which they are not on final and the traffic pattern may turn base as long as they don't make the straight-in alter their approach or fly so close as to cause a conflict.  We in GA really need to cooperate and ROW can't be used to “force” your way into the airport.

Fire away. 

Hoss At AOPA: 
 

I could not find any Letters of Interpretation for this regulation, that cover this situation.

I can find no interpretations of 91.113 either although I can swear that in the 70s when I became a CFI 91.113 had a written interpretation that those in the pattern had ROW over those not in the pattern. Can't find it now ut it is a long time ago.

See Administrator v. Fekete.  In addition, interpretations advanced in the course of an enforcement action are controlling, even if they weren't advanced prior to the action.  See Garvey v. NTSB.

Not really sure the point you are making with the Garvey reference with regard to traffic patterns other than the FAA can change their mind.

 My reading of the regulation is that the lower aircraft portion of the rule specifically states that it isn't to be used to take advantage of aircraft on final. This makes me believe that the aircraft on final ultimately has the right of way regardless, since the regulation states they have right-of-way over other aircraft in flight or operating on the surface. 

Exactly.

 

OK so a Straight in lower on final but 4 miles out shouldn't take advantage of that?

 

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1590 Posts

@Thomas Rogers
Thomas is certainly entitled to disagree with the FAA and NTSB on this matter, but their word is law and his isn't.  Unless/until he gets the regulations and interpretations changed, he (and anyone else listening) would be wise not to do things the way he thinks they should be rather than what the powers-that-be says they are.