CFII count as IPC?

[tgrayson]

Take the old commercial AMEL/CFI-ASE teaching instruments in a multi. The FAR "clearly" says you have to have a CFI rating for an aircraft you teach in. Noting in the FAR wording says "except for instruments."

I agree that the 61.195(c) issue is ambiguous. I think the present regulation is a lot clearer, once it's pointed out to you. Most of us have been programmed to think that any checkride counts, so we don't see the words when they are printed.

When you show people 61.195(c) almost no one accepts the "correct" interpretation at first. When you show them 61.56, they buy into almost instantly. The only wriggle room is the phrase "operating privilege."

Ultimately the FAA decides what the FAR means..

Well, in the short-term and solely as a practical matter. Long-term, the NTSB, or perhaps even a civil law judge.

 

[nosehair]

The only wriggle room is the phrase "operating privilege."

To understand the term "operating privilege", see 61.31 "Type rating requirements, additional training, and authorization requirements."
(a) Type Ratings Required....

(b) Authorization in leu of a type rating. A person may be authorized to operate without a type rating for up to 60 days without a type rating, provided-bla,bla,bla.

This would be an example of an "operating privilege".

Also, see the opening statement of the Requirement for Certificates 61.3
(a) A person may not act as pilot in command of a civil aircraft of U.S. registry, unless that person -
(1) Has a valid pilot certificate or special purpose pilot authorization issued under this part...

Government officials, foreign officials, etc, may be issued these "operating privileges" in special circumstances decided by the Administator.

 

[tgrayson]

This would be an example of an "operating privilege".

I've seen many examples of "operating privilege", but I don't think that's enough to define it. The FAQ's have suggested that an SIC check constitutes an operating privilege. And then you have Sport Pilot operating privileges. You might argue that a complex endorsement is an operating privilege, etc.

 

[MidlifeFlyer]

Well, in the short-term and solely as a practical matter. Long-term, the NTSB, or perhaps even a civil law judge.

For the most part, long-term to. There is both statutory and case law that the NTSB has to defer to the FAA's interpretations of the regulations (unless the interpretation is ridiculous). For example
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49 U.S.C. § 44709. Amendments, modifications, suspensions, and revocations of certificates
(d)(1)(3)

When conducting a hearing under this subsection, the Board is not bound by findings of fact of the Administrator but is bound by all validly adopted interpretations of laws and regulations the Administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law. 49 U.S.C. § 44709(d)(1)(3).
==============================

 

[tgrayson]

I think it's overstating the case to say that the "NTSB has to defer to the FAA's interpretations of the regulations". History shows this clearly isn't the case.

The caselaw you mentioned was probably the case a few years ago where the NTSB ruled in favor of the FAA, saying that the agency was in the best position to interpret its own regulations.

That case was clearly a surprise to the aviation legal community, and most felt that the NTSB was abandoning its proper role. Many questioned whether it would survive civil litigation.

The statute you cited doesn't clearly delineate the leeway the NTSB has because it contains some legalese that I don't understand the implications of. For instance, what is "validly adopted interpretations of laws"? And under what conditions is an interpretation "arbitrary, capricious, or otherwise not according to law?" I'm not sure the latter equates to "ridiculous".

 

[tgrayson]

Here's a link about the case in question and gives some background about the NTSB's relationship with the FAA.

http://www.aviationlawcorp.com/content/dangerous.html

 

[MidlifeFlyer]

Here's a link about the case in question and gives some background about the NTSB's relationship with the FAA.

http://www.aviationlawcorp.com/content/dangerous.html

I'm familiar with Merrill and I think what surprised the aviation legal community the most was the holding that "validly adopted interpretations" included those made on the fly in a certificate action.

I was surprised by aviation lawyers who found the deference part surprising. Deference to agency interpretations of their own regulations is well-rooted as a general legal principle. What makes the FAA situation a little different than most is that those two statutes (there's one for certificate actions and one for civil penalties) mandate the deference; in most other cases, it's a matter of deference to the "expertise" developed by the agency in the area it regulates.

And under what conditions is an interpretation "arbitrary, capricious, or otherwise not according to law?" I'm not sure the latter equates to "ridiculous".

I used the word because it's be best lay word I've found that describes the legalese. The application tends to be interpretation specific but, arguably, the usually come down to them being ridiculous in some way.

 

[tgrayson]

I was surprised by aviation lawyers who found the deference part surprising. Deference to agency interpretations of their own regulations is well-rooted as a general legal principle. What makes the FAA situation a little different than most is that those two statutes (there's one for certificate actions and one for civil penalties) mandate the deference;

The objection is that interpretations done on the fly are not "validly adopted," so their surprise is not surprising. There still is no definition of validly adopted, but publishing seems to have something to do with it, with some implied support by the Administrator.

 

[MidlifeFlyer]

==============================
Before getting bogged down in more procedural gobbleygoop, the professional pilots here probably know the Merrell case. That's the one where the pilot incorrectly read back a clearance (it was meant for another aircraft). The readback was blocked by another transmission, so it was not corected by ATC and the pilot flew what he thought the clearance was. A certificate action was brought against Merrell for violating an ATC instruction. The FAA won, although, good for Merrell, he had filed a NASA form and the penalty was waived.
==============================

The objection is that interpretations done on the fly are not "validly adopted," so their surprise is not surprising. There still is no definition of validly adopted, but publishing seems to have something to do with it, with some implied support by the Administrator.

You would think so. The important things to remember about Merill are

1. That there are two separate issues the opinion deals with: (a) deference (b) validly adopted. The deference opinion isn't particularly surprising, but that "make it up during the hearing" is a bit weird. It's not the "on the fly" part; assume a reg that has no interpretive history but is subject to interpretation. I would expect the agency to argue for it's interpretation and for the courts to give deference to it. What was weird in Merrell is that there was apparently a long line of NTSB precedent - cases already holding the opposite so we were faced with what was arguably a change in existing policy being adopted to put the screws to someone.

2. Merrell is a decision of only one US Court of Appeals Circuit. I know that aviation lawyers plan, among other things, to argue that it was wrongly decided. It's not usually for federal circuits to go different ways - it's one of the reasons for the US Supreme Court to take a case.