Kortokrax, Olshock, Schaffner LOI’s (CFI currency) Rescinded

ghogue

ghogue

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ghogue
I’ve posted this on another forum but wanted to include it here as well.

While going through Chief Counsel interpretations today, I discovered three Memorandums published Aug 16, 2024 dealing with the question of CFI and student currency when flying together. The memorandums stated that the LOI’s for Kortokrax, Olshock, and Schaffner were rescinded on July 23, 2023. I just wanted to share the information. I’m not going to link them here, they’re easily found on the Chief Counsel interpretations website. Search for Kortokrax and you’ll find all three.

I decided to post links for convenience.



 
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Very interesting. I always thought the interpretation was a little bit sketchy and could be used to justify more egregious interpretations of other regs.
 
I kind of shook my head a bit when Kortokrax came out but since there were older interpretations that a student pilot is always a passenger with respect to an instructor, Olshock was downright “shocking.”
 
What’s ridiculous about this is the FAA can have more than one interpretation of their own regulations and rescind an interpretation without public notice.
 
Yeah, I'm not worked up about this. In my opinion the literal reading of the reg is how it exists now. I hated it when they invent interpretations to justify some transient position. In this case, they dug up stuff in the rulemaking that made it clear what the intent was and that the reg as written was what they meant.

If they wanted students to not count as passengers for instructors or vice versa, they'd have put an exception in the regs like they did for examiners.
 
Clip4 said:
What’s ridiculous about this is the FAA can have more than one interpretation of their own regulations and rescind an interpretation without public notice.
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They actually did in an NPRM (88 FR 41194). You may have noticed significantly fewer legal interpretations issued in the past few years.
 
Brad Z said:
They actually did in an NPRM (88 FR 41194). You may have noticed significantly fewer legal interpretations issued in the past few years.
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RussR said:
That's exactly what they did in the NPRM.
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Not exactly. As the NPRM says, the rule change doesn't make students/instructors not passengers, it just creates an exception to the currency requirement.
 
As the NPRM has not become a Final Rule yet, does that leave us in a vague neverland?

Taking as an example the "CFI and pilot are not passengers with respect to one another, so they can get night currency without either one being night current" situation/interpretation, as I understand it, this is basically the history:
- There was no guidance on this
- People wrote in for guidance
- FAA said "yes, it's okay, they're not passengers"
- FAA then last year says "there's no regulatory basis for that, so we're going to write it into the regs" and publishes an NPRM
- FAA then cancels the interpretations based on the NPRM, which seems weird and premature to me
- Final Rule is not published yet

Once the Final Rule is published then the issue goes away, but until that happens, where are we left? Can I go up with a non-passenger-current pilot to get them current? I think so, because in my mind anyway it reverts to an "uninterpreted" regulation. However, some might say that without the interpretations, it reverts to a "you can't do that" until the regulations are changed.
 
The problem with these interpretations is they aren't that easy to find, and sometimes seemingly contradict the published regulations. There is also the unintended consequences, such as the fall out from the warbird/experimental instruction LOI after the one accident of the P-40 giving "instructional" sightseeing rides.
 
The real, crippling question here, Brad, is do the attorneys work for us or do we work for them?
Is FAA going to permit a CFI not night currrent, to get night current with a pilot in the other seat who is not night current.

It appears so. But this is so convoluted.
 
I’m thoroughly confused now. I thought I understood what is being rescinded, but now I’m not sure based on some of the posts. :dunno:

So, in plain English, will a CFI have to be night current when giving instruction at night?
 
Walboy said:
I’m thoroughly confused now. I thought I understood what is being rescinded, but now I’m not sure based on some of the posts. :dunno:

So, in plain English, will a CFI have to be night current when giving instruction at night?
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Right now, as @RussR said, we're in a kind of limbo between the rescinding of the three interpretations which said "no" and the as yet not finalized Proposed Rule which partially says "yes."

So, as of this moment, whichever person, pilot or CFI, is designated as PIC, must be night current.

If the Proposed Rule is finalized in its current form, here's what it will say:

(e) (5) Paragraphs (a) and (b) [landing currency and night landing currency] of this section do not apply to a person receiving flight training from an authorized instructor, provided:​
​
(i) The flight training is limited to the purpose of meeting the requirements of paragraphs (a) and (b) of this section;​
​
(ii) Notwithstanding the provisions of paragraphs (a) and (b), the person receiving flight training meets all other requirements to act as pilot in command of the aircraft; and​
​
(iii) The authorized instructor and the person receiving flight training are the sole occupants of the aircraft.​

The wording is a bit cumbersome, but translating into English, as currently written, neither the pilot receiving training nor the CFI giving the training are required to be passenger current if these three conditions exist:
○ The person receiving the training is acting as PIC (no student pilots or pilots not otherwise qualified to act as PIC).​
○ The sole purpose of the training session is to get the person receiving training passenger current;​
○ No one else is in the airplane.​

Notice that the exception applies to the learner, not to the CFI. As it now reads, a CFI who is acting as the designated PIC must be landing current.

So, in plain English, will a CFI have to be night current when giving instruction at night?
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If the learner is acting as PIC, no. If the CFI is acting as PIC, yes.
 
midlifeflyer said:
Right now, as @RussR said, we're in a kind of limbo between the rescinding of the three interpretations which said "no" and the as yet not finalized Proposed Rule which partially says "yes."

So, as of this moment, whichever person, pilot or CFI, is designated as PIC, must be night current.
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Mark, is that necessarily correct, though? The interpretations themselves were rescinded, but (at least in my mind) that doesn't automatically make the conditions stated in them become not valid. Much like when the Part 61 FAQ was disavowed, it didn't mean the answers in the FAQ were necessarily wrong, in fact many of them were still accurate, just the FAQ itself wasn't official and was no longer going to be recognized.

The whole (original) question came up of course because 61.57 refers to "passengers" and a CFI would not in most people's minds (I assume) be considered a "passenger" while performing CFI duties. "Passenger" is undefined in 61.1 or 1.1, but in 121.583 some examples of non-passengers are provided, some of which a CFI could be argued to fit.

It's my opinion that right now, we're back in the same vagueness we were in prior to the interpretations, where there effectively is no guidance (except, of course, the NPRM, which certainly does state the FAA's intent with this whole thing).
 
RussR said:
Mark, is that necessarily correct, though? The interpretations themselves were rescinded, but (at least in my mind) that doesn't automatically make the conditions stated in them become not valid. Much like when the Part 61 FAQ was disavowed, it didn't mean the answers in the FAQ were necessarily wrong, in fact many of them were still accurate, just the FAQ itself wasn't official and was no longer going to be recognized.

The whole (original) question came up of course because 61.57 refers to "passengers" and a CFI would not in most people's minds (I assume) be considered a "passenger" while performing CFI duties. "Passenger" is undefined in 61.1 or 1.1, but in 121.583 some examples of non-passengers are provided, some of which a CFI could be argued to fit.

It's my opinion that right now, we're back in the same vagueness we were in prior to the interpretations, where there effectively is no guidance (except, of course, the NPRM, which certainly does state the FAA's intent with this whole thing).
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“Necessarily” correct? No.

But I seem to recall earlier statements from the FAA - before any of those three were issued - that those who are not required crew are passengers and one specifically saying that a student pilot is always a passenger relative to their instructor. Until those three I don’t recall anyone taking the position that neither CFI nor passenger needs to be current. I think the retraction and the discussion of the retraction in the Proposed Rule puts us there.

I’m actually embarrassed I didn’t know about this. I saw the Proposed Rule come up but bypassed it because I didn’t read the full title.
 
midlifeflyer said:
I’m actually embarrassed I didn’t know about this. I saw the Proposed Rule come up but bypassed it because I didn’t read the full title.
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Same. Leading off with "Public Aircraft logging of flight time" likely caused me and many others to just skip it since it didn't apply.
 
RussR said:
Mark, is that necessarily correct, though? The interpretations themselves were rescinded, but (at least in my mind) that doesn't automatically make the conditions stated in them become not valid. Much like when the Part 61 FAQ was disavowed, it didn't mean the answers in the FAQ were necessarily wrong, in fact many of them were still accurate, just the FAQ itself wasn't official and was no longer going to be recognized.

The whole (original) question came up of course because 61.57 refers to "passengers" and a CFI would not in most people's minds (I assume) be considered a "passenger" while performing CFI duties. "Passenger" is undefined in 61.1 or 1.1, but in 121.583 some examples of non-passengers are provided, some of which a CFI could be argued to fit.

It's my opinion that right now, we're back in the same vagueness we were in prior to the interpretations, where there effectively is no guidance (except, of course, the NPRM, which certainly does state the FAA's intent with this whole thing).
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The FAA said those prior interpretations had no legal basis. If your concern is an enforcement action by the FAA, that's what matters. If you're concerned with eventually winning your case after many appeals, then the regs' correct interpretation is what matters.

Now, whether the FAA would bring an enforcement action under a rule it's on record wanting to change is a different question.
 
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