61.3(d) question

[KennyFlys]

You don't need a certificate to sit in the right seat and "act in [any] capacity", except for acting in the capacity of PIC or SIC, which requires, of course, a medical and a pilot certificate. If someone has an FAA legal opinion or a regulation that proves me wrong, I'm all ears.

Anyways, where are you getting the idea that sitting in the left or right seat has any bearing on... well anything? I'll eat my hat if the regs, or a FAA legal opinion ever as much as mention the side that a pilot sits at.

So If a non-CFI sits in the right seat, and his wife (or any other non-pilot) sits on the left seat, the FAA will presume the pilot is providing an unlawful charter? Do you have a legal reference for this?

Your scenario involved a "student pilot" in the left seat and an instructor in the right seat without his CFI ticket on his person. Why is that so difficult to comprehend? If you are even remotely close to that situation, have your ticket in hand. I never fly without mine since it's with my commercial ticket. It should be a non-issue based on common sense.

 

[poadeleted20]

61.3(d)(1) never mentions "flight instruction". All it says is "when exercising the privileges of that flight instructor certificate". It has already been established that the act of giving instruction is not in and of itself a act that requires a CFI certificate.

It has become clear with your latest post seems to indicate that you think there's a difference between giving flight training and what you call giving "instruction." I don't think the FAA sees that distinction. Either one is giving flight training as defined in 14 CFR 61.1(b)(6), which may only be done by an "authorized instructor" (i.e., the holder of a current, valid CFI certificate with the appropriate ratings and endorsements), or one is not. If one is doing so, then one is exercising the privileges of that person's flight instructor certificate. As noted in Schlagenhauf:

Oversimplified, respondent appears to contend on appeal, with respect to the alleged violation of section 61.3(d)(1), that not all flight instruction (FI) by non-instructors is prohibited, just FI that is, in the words of the regulation, "required to qualify for a solo flight, solo cross-country flight, or for the issue of a pilot or flight instructor's certificate or rating" (emphasis added). He therefore argues, in effect, that because he did not endorse for solo flight or for any other purpose the certificates of the students referenced in the complaint, the FI he gave to them does not fall within the "required to qualify" category. We find respondent's argument unavailing...

The only argument one could make against a 61.3(d)(1) charge is that one was not giving "flight training." If you could prove that, you might prevail, and one way to prove that would be the lack of an entry in alleged trainee's log. However, I do not see any way in the scenario I hypothesized above for the ABCFS person to make such an argument even if they were nabbed before the logbook was filled out, although I'd like to hear your take on that.

And as far as the 135 charter issue, 119.1(e)(3) clearly states that training flights (not necessairly CFI training flights) don't require a 135 certificate.

Then you take my point -- if it wasn't a charter flight, then it must be a training flight, because there's no other legal way for them to have made that flight with the student paying for it. However, if you think there's a difference between a "training flight" and a "CFI training flight," you haven't read that definition of "flight training" -- especially the part about an "authorized instructor." If there's no "authorized instructor" (i.e., one with a flight instructor certificate), then there's no training, and that means it's not a "training flight." If they took off from Westville, and landed at Eastown, and the student is paying for the flight, and ABCFS provided both plane and pilot, then unless it's a training flight, it's a charter flight, and both ABCFS and the ABCFS pilot are in a lot more trouble than just not having one's CFI ticket handy.

And you still haven't come up with an answer for the ABCFS person to give the inspector when the inspector asks for the person's flight instructor certificate, and he can't produce it. I'll be happy to role-play this one with you as the ABCFS pilot and me as the Inspector. We'll pick it up where the scenario left off -- I've just asked you for your pilot, medical, and flight instructor certificates. You've handed me the first two, but not the second.

"Inspector" Levy: Well, Mr. dsffdssdf, I see that you have with you a valid medical certificate and a pilot certificate with the right ratings on it, but I don't see your flight instructor certificate here. Since you're in the right seat with a Student Pilot in the left seat, and he identified you as his instructor, it certainly appears you were giving flight training. I'm sure you realize that 61.3(d)(1) requires you to have that certificate with you when giving flight training. If you can't produce it here and now, I'm going to have to write you up for an enforcement action for violating that regulation. Do you have anything to say about that?

dsffdssdf: [fill in your response]

 

[dsffdssdf]

Your scenario involved a "student pilot" in the left seat and an instructor in the right seat without his CFI ticket on his person. Why is that so difficult to comprehend? If you are even remotely close to that situation, have your ticket in hand.

You do not need a CFI certificate to fly with a student pilot. Someone needs to be the PIC of that aircraft. A pilot is required, but not necessarly an instructor. The FAA makes no distinction between a non-pilot and a student pilot. They are both seen as non-crewmenber passengers.

Again, is someone out there has regulatory evidence to suggest otherwise, please come forward.

I never fly without mine since it's with my commercial ticket. It should be a non-issue based on common sense.

The discussion has moved beyond this point three pages ago.

 

[KennyFlys]

You do not need a CFI certificate to fly with a student pilot. Someone needs to be the PIC of that aircraft. A pilot is required, but not necessarly an instructor. The FAA makes no distinction between a non-pilot and a student pilot. They are both seen as non-crewmenber passengers.

Where is this established? That is not automatic. I spoke of that earlier.

Besides, I'm not going to jump into a plane with a student without having my tickets on my person. There's too much room for speculation.

The discussion has moved beyond this point three pages ago.

I've noticed that. It's a huge circle.

 

[poadeleted20]

You do not need a CFI certificate to fly with a student pilot.

But if the student pilot is paying for the flight, it must be either a training flight (which requires a CFI aboard giving the training) or a passenger-carrying flight for hire (which requires either a 135 certificate or a 91.147 Letter of Authorization for a local 25sm sightseeing flight landing only at the same airport as the one from which it departed). In addition, if they find the holder of a CFI ticket in the right seat with a student in the left, and the student says it was a training flight, and has the bill to prove it, and the flight school has it on the schedule as a training flight, and there is no 135 or 91.147 paperwork for the flight, the ALJ is not going to find the CFI's statement that it was not a training fight as being credible (see "duck test").

 

[dsffdssdf]

But if the student pilot is paying for the flight, it must be either a training flight (which requires a CFI aboard giving the training) or a passenger-carrying flight for hire (which requires either a 135 certificate or a 91.147 Letter of Authorization for a local 25sm sightseeing flight landing only at the same airport as the one from which it departed). In addition, if they find the holder of a CFI ticket in the right seat with a student in the left, and the student says it was a training flight, and has the bill to prove it, and the flight school has it on the schedule as a training flight, and there is no 135 or 91.147 paperwork for the flight, the ALJ is not going to find the CFI's statement that it was not a training fight as being credible (see "duck test").

You seem to be under the impression that it's either "capital I Instruction", or its an illegal charter. Therefore the only way to get paid to fly with a non pilot is to act as a CFI and give official flight training. I don't agree.

In Part 61 they define "flight instruction", but that definition is prefaced with "for this part", meaning it doesn't carry over to other parts. Why they used that already defined term in 119, I have no idea.

I always thought "flight training" in part 119 refered to any kind of generic flight instruction (lowercase i), and paragraph (1) "student instruction" referes to the act of giving official CFI Instruction (capital I). Why else would they mention "student instruction" and "flight training" in two different spots in 119.1(e)?

dsffdssdf: [fill in your response]

Just because you look like you're committing an illegal act, doesn't mean you necessairly are. Someone with shifty eyes may look like their about to commit a crime, but that doesn't mean that they necessairly will.

Lets say you are a non-type rated FO on an airliner. If you got ramp checked and were found to be wearing a captains hat and 4 bars, they aren't going to assume you were the captain and violate you for acting as captain without a type rating. Thats a poor example, but it's the same idea. The point is that just because you are dressed like a CFI giving official instruction, or if the flight was scheduled as a flight where you're giving official instruction, it doesn't mean anything in this context.

Anyways, this is not an issue of how to find evidence to enforce, it's about defining what is enforceable and what is not enforceable to begin with.

To that FAA inspector, you could easiely make the case that you were doing instruction according to 119.1(e)(1) or 119.1(e)(3) (which ever applies)

 

[dsffdssdf]

ok, I've done a lot (way too much) thinking about this, and I think I may have it figured out:

If you have a current 2nd class medical, and a commercial certificate, then you can get paid to give instruction in a plane, regardless of it being logged, according to 119.1(e)(1) or 119.1.(e)(3), whichever one grants the ability to get paid to do generic flight instruction.

But, if the case may be that you don't have a 2nd class medical, then you can't get paid for giving flight training in accordance to the 119.1 exceptions. Therefore, in order for you to get paid for the flight, you must take advantage of that rule that allows a flight instructor receive payment for his services without a medical. I'm not sure exactly where that privilege is spelled out (it's not in the regs, probably in an AC), but if you choose to take advantage of that, then you must act as certified flight instructor for that flight. And you must have the certificate with you.

The case of a flight instructor getting paid without a medical is the only circumstance I can think of where the person is exercising a privilege in an airplane that is not granted to him anywhere else. So I guess thats the only time you would ever need to conduct a flight as a certified flight instructor.

Does this all sound right?

 

[RotorAndWing]

Does this all sound right?

Simple answer. No.

 

[Greg Bockelman]

Ditto. No.

 

[dsffdssdf]

Don't be so verbose there, guys...

 

[KennyFlys]

To quote Dr. Bruce...

"Sigh..."

 

[Greg Bockelman]

If you have a current 2nd class medical, and a commercial certificate, then you can get paid to give instruction in a plane, regardless of it being logged, according to 119.1(e)(1) or 119.1.(e)(3), whichever one grants the ability to get paid to do generic flight instruction.

For one thing, part 119 only has to do with part 121, 125 and 135. It has nothing to do with part 91 flight instruction.

For another thing, only a third class medical is necessary if the CFI is required to act as PIC. Otherwise a medical is not necessary if the CFI does not have to act as PIC.

But, if the case may be that you don't have a 2nd class medical, then you can't get paid for giving flight training in accordance to the 119.1 exceptions.

Again, 119 does not apply so it is irrelevant.

Therefore, in order for you to get paid for the flight, you must take advantage of that rule that allows a flight instructor receive payment for his services without a medical.

Well the flight instructor isn't getting paid to fly. He is getting paid to instruct.

I'm not sure exactly where that privilege is spelled out (it's not in the regs, probably in an AC),

Here is the Regional Council ruling on that. You have to click on the first link on the list. It is the "Fretwell.RTF" doc.

(edit. I can't get the link to copy properly. Go to this link, http://www.faa.gov/about/office_org.../agc/pol_adjudication/agc200/interpretations/ and in the search string type in "Certificated Flight Instructor Medical" without the quotes. If it works right, the first link is the Fretwell.rtf doc I mentioned.)

The case of a flight instructor getting paid without a medical is the only circumstance I can think of where the person is exercising a privilege in an airplane that is not granted to him anywhere else.

I don't understand. He is exercising his privileges as a flight instructor. Other than that, I am not sure what your point is.

So I guess thats the only time you would ever need to conduct a flight as a certified flight instructor.

If a student wants to get a license, he needs to fly with an instructor. Those flights are conducted with a CFI onboard and that CFI is conducting that flight as a CFI. In that case, since the CFI HAS to act as PIC, (the student can't, he isn't rated) he must have at least a third class medical. I don't understand why this is so hard for you to grasp.

I think you have a notion of how you think things should be and you are trying to come up with ways of justifying your notion. How many post, and how many references must people make before you get the idea that your notion is wrong?

It is what it is, you have been given all the references there are, it is time to move on.

Does this all sound right?

Again, no. Is that verbose enough?

 

[dsffdssdf]

For one thing, part 119 only has to do with part 121, 125 and 135. It has nothing to do with part 91 flight instruction.

That is my point.... We obviously are not on the same page here.

119.1 is a list of operations that do not require a 135, 121, or 125 certificate. Flight instruction is listed, ferry flights are listed, "student instruction" (whatever that exactly is) is listed...

Hence, doing flight instruction does not require a 135 certificate... ferry flights do not require a 135 certificate...

My point is that regulation has one entry for "training flights", and another for "student instruction". Are those two things the same thing? I have no idea. Regardless, they are operations that you can do without requiring a 125, 121, or 125 certificate.

I believe (and as always, if someone can prove me otherwise, please please please please feel free to chime in) than one of them is meant to allow "official" training for certificates and ratings, and the other one is meant to allow "informal" instruction not for the purpose of a certificate or rating, such as a non-CFI commercial pilot with a 2nd calss medical getting paid to teach aerobatics.

For another thing, only a third class medical is necessary if the CFI is required to act as PIC. Otherwise a medical is not necessary if the CFI does not have to act as PIC.

I'm not referring to acting as PIC. I'm referring to getting paid to act as a commercial pilot.

Well the flight instructor isn't getting paid to fly. He is getting paid to instruct.

If you're a CFI without a 2nd class medical, you have no choice but to get paid as a CFI since you can't get paid as a commercial pilot. If you have a 2nd class medical, then you CAN get paid as a commercial pilot.

My point was that even if you don't have a CFI, 119.1 gives you the ability to get paid to do flight instruction as long as you have the ability to get paid as a commercial pilot.

If a student wants to get a license, he needs to fly with an instructor. Those flights are conducted with a CFI onboard and that CFI is conducting that flight as a CFI. In that case, since the CFI HAS to act as PIC, (the student can't, he isn't rated) he must have at least a third class medical. I don't understand why this is so hard for you to grasp.

Again, we are totally not on the samew page here. I never said a 2nd class medical is required to act as an instructor or to act as PIC.

No one can get paid to do anything in an aircraft unless they have a commercial certificate and a 2nd class medical. Peroid. If you happen to have a CFI certificate, there is a special case that allows you to get paid to act as CFI regardless of which medical you have. Again, I'm only refering to GETTING PAID not simply acting as PIC.

 

[bbchien]

To quote Dr. Bruce...

"Sigh..."

Yeah. I've been watching this thread. Beat the horse some more.....

When the naval aircraft commander (usually a O-2 or O-3) is on board, and one of the other rated pilots is flying, he's still PIC, whether he's physically in the seat or not.

And if something bad happens, you can bet your Board of Review that he's going to be responsible. So, when I'm a passenger and instructing is not going on, I always am paying a bit of attention to the goings-on. And everyone knows it, even if I say nothing and do little.

AND, I have already determined that the a/c and pilot are LEGAL.

 

[Greg Bockelman]

119.1 is a list of operations that do not require a 135, 121, or 125 certificate. Flight instruction is listed, ferry flights are listed, "student instruction" (whatever that exactly is) is listed...Hence, doing flight instruction does not require a 135 certificate... ferry flights do not require a 135 certificate...

You are missing the whole point of 119. It deals strictly with 121, 125 and 135 operations. Those exceptions you cite just means that those carriers don't have to apply all of the respective regulations to those exceptions. You are trying to connect a couple of dots that don't really relate to each other. 119 does not apply. Period.

My point is that regulation has one entry for "training flights", and another for "student instruction". Are those two things the same thing? I have no idea. Regardless, they are operations that you can do without requiring a 125, 121, or 125 certificate.

Again, you are missing the point of those exceptions. The 121, 125 and 135 operations can do those things outside their certificate.

I believe (and as always, if someone can prove me otherwise, please please please please feel free to chime in) than one of them is meant to allow "official" training for certificates and ratings, and the other one is meant to allow "informal" instruction not for the purpose of a certificate or rating, such as a non-CFI commercial pilot with a 2nd calss medical getting paid to teach aerobatics.

AS IT APPLIES TO 121, 125, and 135. NOT PART 61 FLIGHT INSTRUCTION.

I'm not referring to acting as PIC. I'm referring to getting paid to act as a commercial pilot.

Well, since acting as a CFI isn't a commercial pilot thing, how is that relevant?

If you're a CFI without a 2nd class medical, you have no choice but to get paid as a CFI since you can't get paid as a commercial pilot. If you have a 2nd class medical, then you CAN get paid as a commercial pilot.

But you are not acting as a commercial pilot if you are acting as CFI. Again, irrelevant.

My point was that even if you don't have a CFI, 119.1 gives you the ability to get paid to do flight instruction as long as you have the ability to get paid as a commercial pilot.

Point 1. You can do flight instruction and training in part 121, 125 and 135 operations outside of the limitations of their certificates. THAT is what 119.1(e) allows for. It has no relevance on part 61 flight instruction.

Point 2. Being able to get paid as a commercial pilot is irrelevant in the case of flight instruction, because a CFI is NOT acting as a commercial pilot, only as an instructor.

Again, we are totally not on the samew page here. I never said a 2nd class medical is required to act as an instructor or to act as PIC.

Evidently, your page isn't even in the same book.

No one can get paid to do anything in an aircraft unless they have a commercial certificate and a 2nd class medical. Peroid.

Hmm. No exceptions?

If you happen to have a CFI certificate, there is a special case that allows you to get paid to act as CFI regardless of which medical you have.

Looks like an exception to me.

Part 119 only applies to the 121, 125 and 135 folks. THEY can do the instruction and training outside of the other limitations of their certificates. The exceptions allow THEM to do that sort of training. It does not and never has applied to a 61 operation.

Don't know how else to explain that.

 

[Greg Bockelman]

Yeah. I've been watching this thread. Beat the horse some more.....

FWIW, I am about done. I think my board is about to break.

 

[dsffdssdf]

You are missing the whole point of 119. It deals strictly with 121, 125 and 135 operations.

No it doesn't. 119.1(a)(1) states it applies to commercial operators. If you're doing sightseeing flights, you are operating as a commercial operator, but since it's listed as one of those exceptions, you don't need a 135 certificate to conduct sightseeing flights. When you operate a ferry flight, you are acting as a commercial operator, but since it's listed as an exception, you don't need a 135 certificate do ferry flights. When you are conducting crop dusting operations, you are operating as a commercial operator, but since crop dusting is listed as an exception, you don't need a 135 certificate to conduct crop dusting operations.When you are conducting cargo hauling operations, you are acting as a commercial operator, but since it's NOT listed as an exception, you must have a 135 certificate in order to conduct cargo hauling operations.

When you are a commercial pilot, getting paid to do instruction, you are operating as a commercial operator. But since "flight training" is listed as one of those exceptions, you don't need a 135 certificate to conduct flight training operations. Therefore, you can get paid to do flight instruction as a commercial pilot acting as a commercial operator without needing a 135 certificate.

There are two ways to look at the generic situation of a person getting paid to give instruction to another person in an airplane:

1) A certified flight instructor getting paid to give instruction as a CFI. He does not need a medical at all to operate this way, but he does need his CFI certificate on him at the time, since he is envoking a privilege of his CFI certificate in order to get paid. This is how many people seem to think is the only way that an instructor can conduct instruction. I'm by no means saying this is false, I'm just saying there is another way. That other way is:

2) A commercial pilot getting paid to give instruction as a commercial operator. He must have a 2nd class medical to operate this way, or he can't get paid. 119.1(e) lists "flight instruction" as an operation you can do legally without needing a 135 certificate.

The rule that lets you get paid to be a CFI without a medical does not necessarily mean that the ONLY way to get paid as an instructor is under that condition. If you don't have a medical certificate, the only way you can legally get paid is #1. If you have a 2nd class medical, then you can either get paid according to #1 or #2.

Also, I truly have no idea where you are getting the idea that part 119 only applies to 135, 121 or 125 certificate holders... Verbatim from page 1-3 of the Commercial Oral Exam Guide published by ASA:

As a commercial pilot certain operations are allowed without being in possession of an "Operating Certificate". Examples of such operations are: student instruction, certain non-stop sightseeing flights, ferry or training flights [...]

Sounds like to me it doesn't just apply to part 135, 121, or 125 operators...

Hmm. No exceptions?
Looks like an exception to me.

Now you're just being argumentative for the sake of being argumentative.

 

[KennyFlys]

A CFI is neither an air carrier nor a "Commercial Operator" by definition. You'll find that in Part 1.

 

[dmccormack]

When the naval aircraft commander (usually a O-2 or O-3) is on board, and one of the other rated pilots is flying, he's still PIC, whether he's physically in the seat or not.

And if something bad happens, you can bet your Board of Review that he's going to be responsible. So, when I'm a passenger and instructing is not going on, I always am paying a bit of attention to the goings-on. And everyone knows it, even if I say nothing and do little.

Similar logic in the Army -- the Unit Commander is "responsible for all that happens or fails to happen within his command."

Assume the responsibility carefully, then guard it carefully.

No room for inane mental gymnastics, and all the better.

 

[RotorAndWing]

Now you're just being argumentative for the sake of being argumentative.

Pot calling the Kettle black????????

 

[poadeleted20]

The horse is dead. Thread closed.

 

[Greebo]

Thread re-opened after M-C review.

Lets be sure not to let the debate get into personal remarks, folks. Thanks!

 

[SkyHog]

Lock a thread on Friday, its dead by Monday anyways. Too bad it went the way of "Personal remarks."

 

[SkyHog]

I think everyone's missing his point (and I may have too):

You are required to have your CFI Certificate on you whenever you are exercizing the privlidges of that certificate in the airplane.

When are you exercizing the priviliges in an airplane?

The only time I can think of is when you have a chart in the back seat, and you're teaching the student with a pointer.

But its obvious that is not what the FAA intended. I think they meant anytime you are logging "Instruction Given" or whatever the fancy columns CFIs log is.

I concede being wrong! Oops.