Rescinded Olshock-PanAm Legal Interpretation - 2007

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Office of the Chief Counsel 800 Independence Ave., S.W.
Washington, D.C. 20591
Memorandum
Date: August 16, 2024
To: Lawrence Fields, Executive Director, Flight Standards Service, AFX-1
From: Laura Megan-Posch, Assistant Chief Counsel for Regulations, AGC-200
Cc: Lynsey Scott, Acting Manager, AGC-240
Subject: Rescinding the Olshock Legal Interpretation (May 4, 2007)

This memorandum memorializes that the Olshock Legal Interpretation (May 4, 2007) was rescinded as of July 23, 2023.1 The Office of the Chief Counsel rescinded this Legal Interpretation because it is not supported by current FAA regulations. The Olshock Legal Interpretation found that a flight instructor need not comply with the recent flight experience requirements in § 61.57(a) or (b) when conducting flight training with someone receiving training who is not qualified to act as pilot in command or someone holding only a student pilot certificate. The NPRM stated that there is no adequate safety or regulatory justification to continue to enable this activity. Therefore, the Olshock Legal Interpretation is no longer valid and may not be relied upon for any purpose. If you require further assistance, please contact my staff.

1 See Public Aircraft Logging of Flight Time, Training in Certain Aircraft Holding Special Airworthiness Certificates, and Flight Instructor Privileges, 88 FR 41194 (June 23, 2023). This Notice of Proposed Rulemaking (NPRM) rescinded the Olshock Legal Interpretation 30 days after the NPRM’s publication in the Federal Register.

LAURA JANE

MEGAN-POSCH

Digitally signed by LAURA

JANE MEGAN-POSCH

Date: 2024.08.16

14:42:10 -04'00'

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U.S.Department

of Transportation
Federal Aviation
Administration

John G. Olshock, Chief Ground Instructor

Pan Am International Flight Academy

Career Pilot Division

530 W. Deer Valley Road, Ste. 300

Phoenix, AZ 85027

Dear Mr. Olshock,

MAY 4 2007

This responds to your letter dated January 2, 2007, requesting an interpretation of section 61.57(b), Title 14, Code of Federal Regulations, as it pertains to a flight instructor and student conducting a flight at night where neither is night current under §61.57(b). You specifically inquire whether "it is legal for a properly rated and current flight instructor (except for §61.57(b», and a student pilot (who is not yet rated in the airplane but receiving training) to be on board the airplane together during night hours." Your letter references a 2005 interpretation from this Office to Kris Kortokrax, which you believe would make this practice "acceptable, but ... the student referred to in that interpretation ... is appropriately rated, just not current with regard to §61.57." The issue is whether the Kortokrax interpretation, which concluded authorized instructors and individuals receiving instruction are not passengers with respect to each other under §61.57(b), applies where the individual receiving instruction is not rated in the aircraft.

Set forth below is pertinent part of the regulation.

§61.57 recent flight experience: Pilot in command.

(b) Night takeoff and landing experience. (1) Except as provided in paragraph (e) of this section, no person may act as pilot in command of an aircraft carrying passengers during the period beginning 1 hour after sunset and ending 1 hour b~fore sunrise, unless within the preceding 90 days that person has made at least three takeoffs and three landings to a full stop during the period beginning 1 hour after sunset and ending 1 hour before sunrise, and- (i) That person acted as sQle manipulator of the flight controls; and (ii) The required takeoffs and landings were performed in an aircraft of the same category, class, and type (if a type rating is required).Rescinded

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The answer is that the analysis of the Kortokrax opinion applies where the individual receiving instruction is not rated in the aircraft. The Kortokrax opinion was based on the instructor-student relationship, and was not limited by specific rating of the particular student. Therefore, it would be "legal for a properly rated and current instructor (except for 61.57 (b», and a student pilot, (who is not yet rated in the airplane but receiving training), to be on board the airplane together during night hours."

You also ask whether another student pilot may "occupy the rear seat during the same flight? The student in the rear will switch seats with the student at the controls at an interim airport to receive training as well." You believe that "the student in the rear seat would be classified as a passenger and this would be prohibited by the regulation." While the FAA has never addressed this hypothetical situation, and even though everyone aboard the aircraft has an instructional connection to the flight, we limit the application of the Kortokrax interpretation to the situation where the individual being instructed is actively receiving instruction. Anyone aboard the aircraft not actively receiving instruction (unless acting as a required flight crew member), would be a passenger for application of §61.57. This response was prepared by Viola Pando, an Attorney in the Regulations Division of the Office of the Chief Counsel and has been coordinated with the General Aviation Division of Flight Standards Service. If you have additional questions regarding this matter, please contact us at your convenience at (202) 267-3073.

Sincerely, _

'lJ~L~?z~·,-<-iL~;i....~

Rebecca B. MacPherson

Assistant Chief Counsel

for RegulationsRescinded