Murphy 2009

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U.S. Department of Transportation Federal Aviation AdmlnJslTa11on ~UN 3 0 m9 Daniel Murphy

Dear Mr. Murphy:

Office of the Chief Counsel 800 Independence Ava., S.W.

Washington , O.C. 20591 This is in response to your requests for a legal interpretation that were postmarked on January 29, 2009, and February 4; 2009. In your letters you requested clarification regarding three issues:(]) whether 14 C.F.R. § 9l.126(b)(l) allows a pilot to conduct a circling approach with turns to the right to ·an uncontrolled airport in instrument meteorological conditions (IMC) if the pilot determines that turns to the left are undesirable; (2) whether a pilot may log pilot-in-command (PIC) flight time under 14 C.F .R § 61.Sl(e)(l) during a practical test when 14 C.F.R. .§ 61.47(b) requires that the pilot act as PIC; and (3) to what point must an approach continue to constitute an instrument approach under 14 C.F.R. §§ 61.65(d)(2)(iii)(B}and 61.57(c)(l)(i).1 · Your letter requested clarification of the requirements in section 9l .126(b)(1) using the following example. A pilot, flying an aircraft under instrument flight rules in IMC, executes a circling approach to an uncontrolled ai.tport. The airport, by operation of section 91.126(b)(l), has established turns to the left for the approach. However, the ·pilot detenni.nes that turns to the left are undesirable because they are not in the interest of safety (for example, the wing of the aircraft blocks the view of.the runway during turns to the left). You ask wheth~r that pilot can make turns to the right on the approach.

Section 91.126(a) statcs,_in relevant part, that each person operating an aircraft on or in the vicirut)' of an airport ·in Class G airspace area must comply With the requirements of section 91. 126 "[u]nless otherwise authorized or required." Section 91. l 26(b)(1) states, in relevant part, that when approaching to land at an airport without an operating control tower in Class G airspace, "{e]ac~ pilot of an airplane must ·make all turns of that airplane to the left ·unless the airport displays approved ligQt signals or visual markings indicating tha_t turns should be made to the right, in which case the pil.ot must make all turns to the right." The use of"must" in sections 91.126(b)(l) and 91.126(a) do not permit a pilot's discretion in determining in which direction to make turns when approaching the airport. Section 91 .126(a) provides an exception to the requirement to make turns to the left if authorized or required by all- traffic control (ATC). This exception pennits a pilot to request clearance to 1 Although the incoming request cited "6 l .67(c)(l Xi); ~ we believe that the Mr. Murphy int.ended to cite section 6 l .57(c)(l)(i) because that section requires six instrument approaches for the purpose of recent instrume~t experience.

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make right hand turns under these circumstances. However, the regulation does not obligate A TC to grant such a request.

Secondly, you inquired about the.interplay between section 61.47(b), which states that the examiner is not the PIC for a practical test in the absence of a prior agreement, and section 61.51 (eXl ), which governs logging of PJC time. You ask first whether a private pilot · certificate holder talcing a practical test for an additional rating may log PIC time for the ., practical test. Additionally, you ask whether a student pilot taking a private pilot practical test may log PIC time for the practical test. · Section 61.47 states, in relevant part, that an examiner is not the PIC of the aircraft during a practical test unless there is a prior agreement with the applicant or a person who otherwise would act as PIC. The practical effe9t of this section is that the person performing the practical test acts as PIC. As previously stated by the FAA, there is a distinction between logging ~IC time and acting.as a PIC. See Interpretation to Jason E. Hennan (May 21, 2009). 14 C.F.R. § t .1 defines a 'pilot in command as the person who has "final authority . and responsibility for the operatjon and safety.ofthe flight." The PJC must be designated before or during the flight and hold the appropriate category, class, and type rating for the conduct of the flight. Id Section 61.Sl(e) governs the logging of PlC time and, in relevant part, allows logging under three circumstances: (l) when a person is the "sole rnap.ipulator of the controls of an aircraft for which the pilot is rated or has privileges"; (2) wh~n a person is the sole occupant of the aircraft; and (3) when a person is acting as PIC of an aircraft on which more than one pilot is required. Section 61 .5l(e)(4) allows logging of PIC time for student pilots when the student pilot is the sole occupant of the aircraft and has a current solo flight endorsement or is undergoing training and when the student pilot is undergoing trruning for a pilot certificate or rating.

In your exampJ'e, the pilot talcing a practical test does not meet any of the circumstances for logging PJC tlme in section 61.Sl(e). The pilot is neither the sole occupant of the aircraft nor acting as PIC of an aircraft on which more than one pilot is required. That pilot is the sole manipulator of the controls but is not rated and does have privileges for the aircraft. Under the section 1.1 definition, a pilot must be rated in the aircraft to act as PIC. An exception .to this rating requirement has existed since the FAA issued section 61.47 (then as 14 C.F.R. § 61.26) on July 3, 1965. 30 FR 85 15. In that final rule, the FAA explained that an unrated pilot is qualified to act as PIC during a practical test because that pilot possesses the appropriate experience priot to the practical.test for the particular certificate or rating. · Though there have been multiple changes to Part 61 in the intervening years, this exception never has beei') withdrawn. No similar exception has been made with respect to logging PIC time under section 61.5 l(e). It is inconsistent that a pilot is pennitted to act as PIC but not log PIC time when both sections 1.1 and 61.51 require that the pilot be rated for the aircraft, and the pilot must possess the appropriate experience prior to the practical test. Therefore, a pilot may log PIC time for the practical test. With respect to the student flight referenced in your letter, the student pilot may log PIC flight time for the practical test for the same reason even though the student pilot does not meet any of the section 61.5 l(e)(4) circumstances.

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Finally. you asked to what point must an instrument approach continue, whether under actual or simulated conditions, to constitute an instrument approach under sections 61.57(c)(l)(i) and 61.65(d)(2)(iii)(B). ·

Section 61.57(c)(I )(i) prescribes the recency of instrument e"perience requirements' to act as PIC under .JFR or in IMC and states, in relevant part, that a pilot must perform six instrument approaches in the preceding 6 calendar months in the appropriate category of aircraft for which instrument privileges are sought. Section 61.65(d)(2)(iii)(B) establishes the requirements for an instrument rating and states, in relevant part, that an applicant for an instnunent rating must complete 4.0 hours of actual or simulated instrument time that includes at least one cross-country flight in an airplane that is performed under IfR and consists of an instrument approach at each airport.

The.FAA previously has interpreted section 61.57(c)(l)(i) to mean that a pilot must follow an instrument approach procedure to the minhnum descent altitude or decision height. See Interpretation to Timothy Slater (Jan. 28, 1992). The FAA has not previously. interpreted to what point an instrument.approach must be followed under section 61.65(d)(2)(iii){B). However, because of the similarities between the two instrument approach requirements, an instrument approach under that section also must continue to the mhiimum descent altitude or decision height.

Titis response was prepared by Robert Hawks, an Attorney in the Regulations Division of the Office of Chief Counsel and coordinated with the Airspace and Rule Group of the Air Traffic Organization and the C~rtification and General Aviation Operations Branch of Flight Standards Service. We hope this response has been helpful to you. If you have additional questions regarding this matter, please contact us at yo·ur convenience at (202) 267-3073.

Sincerely, ·

~f::.#J-- .

Assistant Chief Counsel for Regulations, AGC-200