CFI as PIC w/o 61.57 Landings
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Good Morning,

I am a CFI, but not very active. I am not current to carry passengers in single engine aircraft as I have not met the recency requirements of 61.57 for that category and class. I was asked to perform a BFR for a single engine rated pilot. He does not currently meet the requirements to act as PIC. I believe he is not considered a passenger for the purposes of my 61.57 lack of currency. Therefore, can I act as PIC, since there are only “persons receiving instruction” and no “passengers” onboard? Attached is a letter of legal interpretation regarding this subject, but slightly different circumstances. I believe I can, I am just seeking a second opinion.

https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2006/Kortokrax_2006_Legal_Interpretation.pdf

19 Replies
Votes

@Scott Knoll
When I asked for the interpretation, I asked the question in a general manner so that the answer would cover day and night.

I gave two examples, one for a night flight and one for SFAR 73, which deals with Robinson helicopters (with no mention of being limited to night flights).

The attorneys elected to address my two examples and ignore the general question.

Later on, someone else asked about day operations and the answer was the same.

Just ask yourself how much sense it would make that you could conduct the BFR at night, based on my letter of interpretation, but that you might not conduct it during the day.  That would make no sense.

I asked the question in 2003 and they delayed answering it until 2006, after I made several calls asking about the status of my question.  Later on, while I was an FAA Inspector, I had a chance to speak with the attorney who issued the interpretation.  He told me that they really didn't want to answer my question.

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1590 Posts

@Scott Knoll
 

Attached is a letter of legal interpretation regarding this subject, but slightly different circumstances. I believe I can, I am just seeking a second opinion.

https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2006/Kortokrax_2006_Legal_Interpretation.pdf

There are other AGC-200 letters about this, and they all say what you want to do is totally legal.

Olshock-PanAm2_2007_Legal_Interpretation (faa.gov)

Schaffner_2014_Legal_Interpretation (faa.gov)

In any event, if the FAA Chief Counsel says it's legal, it's legal unless/until a Federal court says otherwise. – you don't need a “second opinion” on that.  See (in sequence):

4530 (ntsb.gov)

FAA, et al v. NTSB, et al, No. 98-1365 (D.C. Cir. 1999) :: Justia

4814 (ntsb.gov)

 

Votes

@Scott Knoll if the pilot is not current you are the PIC and you must be current. Giving instruction when you yourself are not proficient is asking for it. You are flying with an unknown pilot of unknown skills in a unknown plane. Things can happen rapidly and unless you are proficient you could end up hurting  yourself and the pilot or worse.
 

Votes

@John Majane Iii
You used two completely different terms in your answer.

The original post dealt with currency.  The pilot stated that he was not current for single engine airplanes.  He might be a Commercial pilot flying multiengine airplanes every day.

Currency is defined in 61.57.  The legal interpretations address it and state that the FAA's position is that a student (person receiving instruction), is not a passenger with respect to currency.  The pilot asking the question could legally fly with the pilot receiving instruction without having done 3 takeoffs and landing in the last 90 days.

One could go for a year without flying, get into a single engine airplane, do 3 takeoffs and landings and be current for single engine airplanes.  That does not mean he would be proficient.

Proficiency is the other term you used.  This would be more dependent on having completed a flight review and practicing the maneuvers frequently.  Merely flying frequently would not guarantee the proficiency needed for instructing.  If one flew cross country a couple of times a week for lunch, that would not, in and of itself, make him proficient to teach maneuvers for a flight review.

Bottom line, he can legally perform the flight review without having done 3 takeoffs and landing in the past 90 days.

Votes
No he cannot give the BFR. He is not current. If the pilot who was going to receive the BFR was current he could do it. However he stated the pilot was not.  Neither one of them can act as PIC with another occupant in the plane. Prociency is another issue. If the CFI is not proficient  whether he is current or not he should not be giving instruction. 
Votes

@John Majane Iii
I based my answer on 15 years experience as an FAA Operations Inspector and as the recipient of a legal interpretation concerning 61.57(b).  A later interpretation states “Although the Kortokrax interpretation speaks specifially to paragraph (b) of 61.57, the same logic applies to paragraph (a) of 61.57.” (Schaffner interpretation, May 5, 2014).

Upon what do you base your opinion?