The FAA's Flight Standards District Offices (FSDOs) have almost unlimited authority to interpret the FARs as they see fit. In Virginia, one flight school faces a regulatory interpretation by its local FSDO that prohibits the use of an airplane lacking two sets of brake pedals for flight instruction or for CFI practical tests. AVweb examines the implications of that interpretation for aircraft owners and operators.
August 10, 2000
|About the Author ...
Liz Swaine is
a member of the AVweb news writing team. A private instrument-rated
pilot, she owns and flies a 1966 Mooney M-20E affectionately known as "Mike" and
a Russian Yak-52 affectionately known as "Yak-52." Liz's love for aviation began
some years ago when, as a reporter at a TV station in Pensacola, Fla., she was
assigned the Blue Angels beat. From there, she moved to Shreveport, La. and, as
news anchor at the ABC affiliate, traveled the world covering the happenings at
Barksdale Air Force Base. She has traveled to Russia to cover the fall of
communism, to Saudi Arabia to report on the build up to Desert Storm, and to
Israel to look at the Arab-Israeli peace process up close. Her latest position
-- as executive assistant to the dynamic mayor of Shreveport -- is showing her
what the political world looks like from the inside, and she reports the sausage
analogy is right on ... you may enjoy what it tastes like, but you probably
don't want to see it being made. The fast pace of her life extends to her play
... she is a former triathlete and currently into high intensity weight
training. Liz recently married airshow pilot and airplane builder Steve Culp,
who likes airplanes as much as she does and can fix 'em, too. Their dark, hairy
daughter named "Mollie" looks suspiciously like a dog.
interviewed two of the FAA's
top lawyers at their offices in Washington. That meeting was occasioned,
in part, by news stories AVweb had written that were highly critical of
the FAA's attorneys and their uneven interpretations of Federal Aviation
Regulations (FARs). The meeting was a joint attempt by AVweb and FAA's
Chief Counsel Nick Garaufis to establish a dialogue between industry and the
agency. The need for that dialogue and the reason for our criticism, in turn,
had its roots in the agency's treatment of Bill Bainbridge and B & C
Specialty Products. Ultimately, our coverage of the
Bainbridge affair played a role in the FAA's ending an enforcement action
against him and his company. Now, sadly, it appears that the FAA is at it
again this time, though, it's a Flight Standards District Office (FSDO)
coming up with a regulatory interpretation that, to say the least, is
inventive and harmful to at least one aviation business. Taken to its
(il)logical extreme, the interpretation regarding the use of aircraft
lacking a dual set of brake pedals for flight instruction and practical tests
flies in the face of decades of safe operational practices and ultimately
will have a chilling effect on aviation safety.
THIS JUST IN ...
On April 27, 2000, the day
this AVweb Special Report was first published, the FAA's Office of
the Chief Counsel wrote and released a letter
clarifying and superceding previous interpretations as they apply to FAR
91.109(a) and flight instruction. According to FAA spokesman Eliot
Brenner, this new interpretation applies to all operations conducted under
Later, the FAA finally clarified
whether there was a requirement that an airplane equipped with dual brakes
must be used for practical tests as required un FAR 61.45. The later
clarification came from a revision to the Flight Standards Handbook
Bulletin for General Aviation (HBGA), FAA Order 8700.1, which was
dated May 26, 2000, but has not been widely disseminated.
With this later, final
clarification, the FAA has seemingly put to rest the question of whether
an airplane equipped with dual brakes is required for either flight
instruction or practical tests. Until the next
Mooneys don't have them, and neither do many Barons, Bonanzas, Piper Apaches
and Aztecs or other airplanes too numerous to mention. Dual brakes, that is.
And, of course, many airplanes equipped with skis or non-amphibious floats
don't have any brakes. But, if an FAA FSDO's new and inventive
interpretation of an existing regulation covering dual controls becomes the
law of the land, thousands of aircraft owners may find that they can no longer
receive dual instruction in their own airplane. Legally, anyway.
The new interpretations of long-standing regulations FARs 61.45 and
91.109 in this case come courtesy of the FAA's eastern region, which wrote
in late March that an airplane without dual brakes cannot legally be used for
a checkride or, for that matter, for any training. The interpretation is found
in a certified March 29, 2000, letter from
James D. Barton, manager of the Richmond (Va.) Flight Standards District
Office (RIC FSDO), to a flight school at the Shenandoah (Va.) Valley Regional
Airport, Shenandoah Flight Services Inc. (SFS). Included with that letter was
memorandum from Loretta E. Alkalay, regional counsel, which discussed the
SFS, which operates a flight school under FAR 91, somehow found itself in
the crosshairs of the RIC FSDO. How SFS found itself in that unenviable
position is a matter for debate but what is clear is that the FBO had a pretty
good flight-training business going. One of its activities was preparing
would-be flight instructors for their checkrides. Because it didn't have a
complex airplane readily available, SFS bought a late-1950s-vintage Piper
Apache twin to use for training and for check rides. Its students were
prepared for the multiengine flight instructor certificate and would later add
the single-engine rating to that certificate. The school did their training
this way for a while with the blessing of the RIC FSDO rather than use a
Cessna 172RG based at a nearby airport and, interestingly enough, in a
different FSDO's jurisdiction.
All that came to a screeching halt in June 1999, though, when SFS sent a CFI
applicant to the RIC FSDO for a checkride. According to SFS's Dave Hickey, the
operations supervisor at the RIC FSDO, Tom Jones, decided that the Apache was
not compliant with the practical test standards for the flight
instructor-airplane certificate because it lacked brake pedals for the right
front seat. The rationale, again according to Hickey, was that the examiner
would have to hold the pedals while the applicant demonstrated a short-field
takeoff. Soon thereafter, personnel from SFS and the RIC FSDO got together to
discuss the situation. In Hickey's words, it turned into a "roaring argument."
After that meeting, SFS received a copy of a letter from
Donald P. Byrne, who is assistant chief counsel in the regulations
division at FAA headquarters and is the person charged with regulatory
interpretations, to AOPA's Rob Hackman. That letter to Hackman, a senior
aviation technical specialist for AOPA, which Byrne noted had been coordinated
with the FAA's Flight Standards Service, said, "...the right seat of the
aircraft does not need to have access to toe brakes but does need to have
access to brakes (e.g. a hand brake or parking brake) to meet the intent of
[FAR 91.109]." Pretty straightforward, huh? Byrne's letter constituted a
slight change in commonly accepted operational practice but nothing with which
most airplanes can't comply. Still, it was a change in regulatory
interpretations and to commonly accepted operational practices throughout the
industry. It also was something not widely disseminated by the FAA to
But skip then to September 29, 1999. That's the day that Lauren Basham,
FAA's acting manager of its certification branch, sent a letter to
Virginia-based pilot, flight instructor and designated examiner Ken Medley.
Medley, a former FAA employee and long-time fixture in Northern Virginia
aviation circles, had requested "clarification on whether dual
instruction/flight tests may be conducted in airplanes that do not have brakes
on the right side." According to Hickey, Medley made the inquiry on behalf of
SFS through a mutual acquaintance, Scott Crossfield (yes, that Scott
responded to Medley, saying in part that, "since neither sections 61.45(a)
or (c), nor 91.109 lists brakes as a 'required control,' both flight
instruction and flight tests may be conducted in an airplane without brakes
when the instructor/examiner determines that instruction/practical test can be
conducted safely in that aircraft." All of which makes sense and is the way
it's been done for decades. And all of which would seem to reverse Byrne's
email to Hackman. All was now right with the world. For a while, at least.
relationship between SFS and the RIC FSDO then settled into a sort of "don't
rock the boat" situation wherein the flight school did its best to accommodate
the FAA. At least on the surface, relations between the two appeared to be
normal, if not healthy. Beneath the surface, though it appears a storm was
That brewing storm struck in November 1999, when SFS sent an applicant for
the CFI-Airplane practical test to the RIC FSDO. Exactly what happened next is
open for interpretation. What is clear is that the applicant got a pink slip
and went away thoroughly humiliated. So humiliated, in fact, that once he got
back to SFS' base, he got in his car and drove straight through to his home in
Tennessee. Only when he had returned home was he able to adequately
communicate to SFS the events of the previous day. In part, his email to SFS
read, "If being a flight instructor means I need to bow to the whims of petty
tyrants like John Phelps and Tom Jones [Phelps and Jones are in operations at
the RIC FSDO Ed.] for the rest of my working life, then maybe I don't
really want to be a flight instructor."
Between then and last month, Hickey wrote three letters to the FAA's
eastern region offices, one massive missive of 15 pages to Barton and two more
to Nicholas A. Sabatini, manager of the region's flight standards division.
The first two letters sought to bury the hatchet between SFS and the RIC FSDO.
But it was not to be. On March 29 of this year, SFS received another certified
one from Barton with the Alkalay
memorandum attached. In part, that letter stated:
"As of the date of receipt of this letter, any flight instruction
provided by your flight training organization in aircraft that do not have
fully functioning dual controls, with brakes available to both pilot
stations, will not be creditable toward a pilot rating. Any flight training
conducted in such aircraft and logged by the flight instructor providing the
instruction may be subject to enforcement action. This information is being
disseminated to all flight schools in the district."
But that's not all. The Barton letter/Alkalay memorandum also includes two
other concepts of interest. The first is that, under FAR 61.45, an aircraft
used for a flight instructor practical test must be equipped with dual brakes.
The other is the concept of a "secondary pilot position," a term used in the
Alkalay memorandum. Interestingly, AVweb had never before heard of this
latter concept, the "secondary pilot position." Indeed, a search of the
current versions of FAR Parts 1, 23, 61, 63, 91 and 141 failed to uncover any
verbiage that would further define the concept of a secondary pilot position
or, more importantly, provide a regulatory basis for its inclusion in the
Whoa, Nelly! Something just hit the fan. That "something" is a wholesale
change in the way FARs 61.45 and 91.109 and their predecessors have been
interpreted for years, decades in fact. It's a change that can only be found
in an obscure letter from one FSDO to an FBO in its jurisdiction. Moreover and
contrary to Barton's letter, it hasn't been disseminated to all flight schools
in the territory covered by the RIC FSDO. In fact, an informal survey
conducted by AVweb while preparing this story indicates that no flight
schools in that area have received such notification. Failing that, however,
is the larger question of how an airplane lacking dual brakes can be legally
used for flight training in one part of Virginia but in another part, one
covered by the Washington FSDO, no such requirement applies.
if you own a Mooney 201 lacking dual brakes and want to train for an
instrument ticket in your own plane? Too bad, according to the FAA, or at
least that part of it covering southern Virginia. You'll have to rent a Cessna
150 that has dual controls including dual brakes even if you'll never
fly the 150 again. Even more complicated, what if you own a Bonanza with a
throw-over yoke but no brakes on the right side? FAR 91.109 carves out an
exemption for such aircraft when used for instrument training and simulated
instrument flight, but says nothing about brakes. Is that long-standing,
regulatory exemption now null and void for instrument training? Or, can a
Bonanza so equipped only be used for instrument training and no other kinds of
instruction? Are you starting to get the idea?
But most importantly, what about normal recurrent training in such
aircraft? Owners are out there flying around in literally thousands of
aircraft without dual brakes. Sooner or later, say within the next couple of
years, those owners are going to need a biennial flight review (BFR). Will the
FAA say that a BFR obtained in such an aircraft is null and void? Will a
turbocharged Bonanza owner need to rent a Cessna 150 to get his BFR? If so,
how valuable will that BFR really be? Or will that only apply in the territory
covered by RIC FSDO? What about float- or ski-equipped airplanes? The Barton
letter/Alkalay memorandum are silent on these points, possibly because SFS
doesn't do this kind of training. Ultimately, what will be the impact on
Seem stupid? It certainly does to AOPA President Phil Boyer, whose
organization is giving away a "Millennium Mooney" which does not have dual
brakes. Boyer wrote to a CFI and a member of a Mooney mailing list that AOPA
"will not be awarding the Millennium Mooney to any lucky winner who can't get
checked out in it!" AVweb columnist and CFI Rick Durden who is also
an aviation attorney says the FAA has waived any claim to this "renewed"
interpretation with the passage of time and the thousands of airplanes that
were certified "dual control" without dual brakes.
In an email, AOPA's Boyer calls it part of the continued insanity of some
FAA rules, and promises to bring it to FAA Administrator Jane Garvey's
attention. Indeed, that may already have happened. While preparing this
Special Report, AVweb asked AOPA for a comment. As our deadline
approached, AOPA responded, saying that they have been "working the issue for
months" and that a meeting between the association and the FAA was occurring
"right now." Indeed, Drew Steketee, AOPA's senior vice president of
communications, tells AVweb, "We expect that, by the end of the week,
this will be a non-issue."
seems to agree. While AVweb was developing this story, we also asked
the FAA to comment. In an 11th-hour response, FAA spokesman Eliot Brenner told
us, "We're drafting another letter to clarify and make it clear that our
original interpretation went to the issue of identical controls vs.
functionally equivalent controls. We will make it clear that in the original
interpretation we did not consider the issue of whether brakes were even
required controls. The follow-up is to clarify that brakes are not required
Brenner's reference to the FAA's "original interpretation" apparently is to
from Donald P. Byrne, the attorney in the agency's Office of Chief
Counsel, to AOPA's Rob Hackman, referenced above. The impact this forthcoming
letter will have, however, is unclear. For example, will it address the "new"
interpretation requiring dual brakes for the CFI-Airplane practical test? Will
a handbrake suffice? Will it fully and completely overturn the March 29, 2000,
Barton letter to SFS? AVweb intends to publish the contents of this new
letter and to update this Special Report as soon as it is available.
What to do in the meantime? Be careful about giving any instruction in an
airplane without dual brakes, for one thing. At least until the FAA's
forthcoming letter clarifies the issue, once again.
Perhaps the more important question, though, is what will the FAA do about
FSDOs and regional offices that seemingly go "off the reservation" and
promulgate regulatory interpretations with such far-reaching impact? And when?
This is by no means the first time an event like this has occurred within
the ranks of FAA's employees and field offices. As evidence, one need look no
further than the Bill Bainbridge affair. Sadly, it probably won't be the last,
either. But it should be. Ms. Garvey, now would be a good time to address this
problem. Put a stop to it. To use a bad pun, apply the brakes.
Oh, and the CFI applicant who drove back to Tennessee after his less-than
satisfactory experience with the RIC FSDO? He recently received his CFI
ticket, taking the practical test from "another FSDO." That FSDO told SFS that
the CFI applicant was the best-prepared they had ever seen.
- The July 29,
1999, letter from FAA Assistant Chief Counsel, Regulations Division, Donald
P. Byrne to AOPA's Rob Hackman.
- The September
29, 1999, letter from FAA Acting Manager, Certification Branch, Lauren D.
Basham to Ken Medley.
- The March 29,
2000, letter from James D. Barton, manager of the Richmond (Va.) FSDO, to
Shenandoah Flight Services.
- The March
17, 2000, memorandum from FAA's eastern region counsel that accompanied the
March 29, 2000, letter from James D. Barton, manager of the Richmond (Va.)
FSDO, to Shenandoah Flight Services.
- The April 27, 2000, letter from FAA Assistant Chief
Counsel, Regulations Division, Donald P. Byrne to Rob Hackman at AOPA.
According to FAA spokesman Eliot Brenner, this letter supercedes both the
Barton letter/Alkalay memorandum as they apply to FAR 91.109 as well as Mr.
Byrne's own previous letter.