Toeing the Line: The Alkalay Memorandum

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Following is the complete text of 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.  As referenced in the AVweb article "Toeing the Line: An FSDO Changes the Definition of 'Dual Controls'."

U.S. Department
of Transportation
Federal Aviation


Subject: Dual Controls under 91.109 and 61.45

From: Regional Counsel, AEA-7

To: Manager, RIC FSDO
THRU: Manager, Technical Branch, AEA-230

Date: Mar 17 2000

Reply to
Attn. of: SBrice x3268

You have requested our opinion with respect to fully functional aircraft dual controls under 91.109 and 61.45 of the FARs. After further discussion, we have clarified your inquiry as consisting of three questions. The first is whether 91.109(a) requires braking capability for both pilot positions when instruction is being given. The second is whether brakes must be available for both pilot positions for the performance of a practical test under 61.45. The third is whether brakes must be available for the performance of a practical test for a flight instructor certificate also under 61.45.

Section 91.109(a) requires that aircraft being used for flight instruction be equipped with "fully functional dual controls." In an opinion issued July 29, 1999, a copy of which accompanied your request, the Chief Counsel's office interpreted this section's use of "dual controls" as including brakes. The interpretation takes the view that the dual controls need not be identical, observing that the rule would be satisfied where hand brakes are available for one side even though toe pedal brakes are used on the other. We see no reason not to apply that opinion to your inquiry.

Section 61.45 uses more specific language with respect to dual controls. Section 61.45(c), Required Controls, states that the aircraft "used for a practical test must have engine power controls and flight controls that are easily reached and operable in a conventional manner by both pilots", while allowing the examiner discretion to deviate from this requirement. We do not view brakes as either engine power controls or flight controls. We conclude, therefore, that dual braking systems are not required for aircraft being used for a practical test under this provision.

The analysis does not, however, end at this point. Section 61.45(b), Required Equipment (other than controls), requires that an aircraft being provided for a practical test must have "the equipment for each area of operation required for a practical test." Sec. 61.45(b)(1)(i). When a practical test for a flight instructor certificate is conducted, the applicant must demonstrate his or her qualifications from the secondary pilot seat. The Practical Test Standards require the instructor applicant to satisfactorily demonstrate various operations from that seat, such as taxiing and short field takeoffs and landings, which require use of the brakes. These operations thus dictate braking capability from the secondary pilot position. Although is may be physically possible for an aircraft to have braking available only from the secondary pilot position, that is not a practical configuration; for training and solo operations, all controls and equipment must be accessible to the primary pilot position. In any event, the aircraft being provided for a flight instructor practical test must be equipped with brakes from the secondary pilot position, which will dictate an aircraft configuration incorporating dual braking systems.

I trust this satisfies your inquiry. Should you have any further questions, please contact Stephen Brice in this office at extension 3268.

/s/ Loretta E. Alkalay