Toeing the Line: An FSDO Changes the Definition of "Dual Controls"
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.
Now It's the FAA's FSDOs That Are Out of Control!
Last summer, AVweb 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 FAR 91.109(a).
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 time.
Give Us a Brake!
Most 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 a memorandum from Loretta E. Alkalay, regional counsel, which discussed the interpretation.
A Sad, Sordid Saga ...
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.
... Involving AOPA ...
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 operators.
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 Crossfield).
Basham 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.
... and the Richmond (Virginia) FSDO ...
The 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 brewing.
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 letter, the 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 Alkalay memorandum.
... Yes, Virginia, There Is a Problem
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.
What's an Owner to Do?
What 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 aviation safety?
And What Will the FAA Do?
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."
The FAA 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 controls."
Brenner's reference to the FAA's "original interpretation" apparently is to the letter 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.