Mirkin-FlyRight 2018

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U.S. Department of Transportation Federal Aviation Administration SEP 1 ~ Mark H. Mirkin, Esq.

Chief Legal Officer FlyRight 7075 Aviation Blvd., Suite A Concord, NC 20027 Office of the Chief Counsel 800 Independence Ave., S.W.

Washington, D.C. 20591

Re: Requirements for instructor (simulator) and check airmen (simulator) under 14 C.F.R. §§ 135.337(f) and 135.338(f).

Dear Mr. Mirkin,

This letter responds to your May 4, 2018 request for a legal interpretation of 14 C.F.R. §§ 135.337(±) and 135.338(±), which prescribe qualifications for check airman and flight instructors who perform checking or instructor functions for a particular aircraft in a flight simulator, flight training device, or both. You represented that FlyRight is an FAA-certificated part 142 training center providing FAA-approved training programs for BE-200, BE-300, CE-208, DHC-8-100, and DHC-8-300 type aircraft. First, you asked if FlyRight would fulfill the requirements of§§ 135.337(±) and 135.338(±) if its instructors (simulator) and check airmen (simulator) flew their 12-month two-segment requirements referenced in those regulations in a light piston twin engine. Second, you requested that this office revisit its May 22, 2014, legal interpretation of 14 C.F.R. §§ 135.337(±) and 135.338(±). See Legal Interpretation to Brian Sutch, from Mark W. Bury, Assistant Chief Counsel for International Law, Legislation and Regulations (May 22, 2014). Section 135.337(±) provides in pertinent part:

A check airman (simulator) must accomplish the following:

(1) Fly at least two flight segments as a required crewrnember for the type, class, or category aircraft involved within the 12-month preceding the performance of any check airman duty in a flight simulator; or (2) Satisfactorily complete an approved line observation program .... In addition, Section 135.338(±) provides that:

A flight instructor (simulator) must accomplish the following--

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(1) Fly at least two flight segments as a required crewmember for the type, class, or category aircraft involved within the 12-month period preceding the performance of any flight instructor duty in a flight simulator; or (2) Satisfactorily complete an approved line-observation program .... The answer to your question is no. A check airman (simulator) and flight instructor (simulator) must fly at least two flight segments for the type aircraft involved within the 12-month period preceding the performance to comply with§ 135.337(£). As stated in the 2014 legal interpretation, recency of experience in a light piston engine would not satisfy the recency requirements for serving as a check airman or instructor in an aircraft of a different type, class, or category aircraft. Because the purpose of the requirements is for experience in a similar aircraft, the aircraft type must be the same. If the aircraft does not have a type rating, then the class and category, in that order, must be the same. As stated in the 1996 final rule, these paragraphs were intended to add flexibility to acquire the experience in a flight simulator but not to relax the existing requirements for experience in simulator aircraft. 61 Fed. Reg. 30734, 30735 (June 17, 1996). The FAA has considered your request for reconsideration. However, the 2014 legal interpretation was the appropriate interpretation of§§ 135.337(f) and 135.338(£). As stated in the 2014 interpretation, you may consult with your local FSDO or CMO for guidance on whether meeting the requirement in one aircraft may fulfill the requirement in another aircraft.

This response has been coordinated with the Air Transportation Division of Flight Standards Service. If you need further assistance, please contact our office at (202) 267- 7728.

Sincerely,

Lorelei D. Peter Assistant Chief Counsel for Regulations, AGC-200

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F MarkW.Buty l'J.eputy Chief Counsel - 8ustf'!ess Operations Federal Aviation Administration &:lo Independence Ave. S.W.

Wastitngton, OC 20591 C>Qr Mr. Bury, Iserve as Chief Legal Offker for F~ight Jnc., an FAA-certificated Part 142 sifnutator training atnf$' providing FAA-apprOlied mining programs for 8£·200, SE-300, CE-a¢&, OHC-8--ioo and OHC-8·300 type aircraft. Flymg'ht provides training and checking services to P$1: 13s air c:amers under ccntract. I am writing to discuss an important issue arlsing IJl"lder ~1u.m{f) and i.35.338(f) of the Cod~ ofFtderal Regulatlom vis a vis a legal interprttatlon you rendered in May 2014 to Th• Whitewlnd Company. Sec. 135.337(t) provides, In pertinent part, that "A check airman (simutator} must accompUsh the following: (1) t:ly at least two flight segmenu a$ a-r!equired ~wrrmnberfor" the ty~ dass, . category alrctaft involved wlthtn th4! 12--mm\thS pmc•gme ptrfotmance ef tiny ch«l(airtMn dut~dn a flfghf;simutator.::?' [colot'tkfad}; il'ild Sec; 135;338(f):prwides;.fn ~nentpart, that;"A flight lnst~Ot"(siMU!at:Or) i'mlSt:.ati:~~tfte'fb!fbWlrlgr (:t)'fty at !east twc flightu-gments as:a·requiredcrewm~forthe:~ datS;-'~; <'catlegmy aircraft~V<>flrtit!Wlthtn the 12~month period pni!cedlng,t"«! per:ft;ltMa..-tcechnyfl!ght insttuttor dtlfy m'li ft.ight s&riutator:.;:"'ttOtcr add@di. , , ; . : ,... ~; . : ... : ' ~;_( • • . A • ' • Based up-0n that key word- · >1 •- !n both regulation provisions, FlyRight bdeves it Would be compliant by having •its Part 13$ flight instnictors a.nd c~k al"""*n c1.1tretlt with mpertto thtir t:i-month twO..~t requirements by flying thE two segnwnts in a light piston twin eo"lliJlne: As you may know, Pi~·powered Gircmt.are readily .·available for rent. · Our bettef based on the language ofthe r~lat!Ofts is shaken by PNt uof the WhitEwind !egat lnh9'pfetatlon wherein your answers<to tnewr!W's·nwott-~tafs:ifrl?fytftat:a ~k'airmatt f1lUst flv•ine twO ~ritSfOrttie type, dlS~·!b~ ·cat~ aircraft>involv.td within the u:.im®th~.prececllngtht/~nt•of anythet:~awmah duty in aJUgtw simutator.[color~ddedl and.th"t a ffight:ff\atrUttor~ifftthe im ~tSfdittie tvPei tlau .~ ~'%' category alr(f!Jftlnvolved wltNn·the u-month p«lod' preceiding ttie·petformance of ari'j'>ftight t~or duty in a ftfght si~tor. [color. ad~d]. · . ·' " ~ ,. ··': ·· .. ·· , . : .._, : ,, :' '. ,. , • • • t . ..

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Mr. Mark Bury Mav-1tt20:iS Pag;!Two FlyRJght and those of Its cotnpetltors with whom it has con~ haw strug9*J <M!r the last fQ!Jf' yEaf5 to comply with the Whitewind fegal t'rteqntatlon, i~urring cOMid«able ~nse and diffitutty ~atCA":ss te turbine-powered aircraft for contract airmen ho cha!kmglng; th@f ~ r.wty offet'oo for re~t ind when they al'@ available th& eJC}')enst is prohibitive.

On behalf ofitself and othtr com~nil&s simltariy situated, FfvRight respedfulty asks yov to. revisit the Whitewlnd leg.al interpretation and to reverse wlm we stJSpt:ct was an unkrtentionel burden placed on t~ Industry, affirming that the us~ ofthe word- "' - in the cited~ Cati bt retied upon by us and·thetrainingwitet"s with whom we compete.

Thank yov for your consideration.

Verytrufy ycurs, F!ylllght. fl'IC.

~ Marie H. Mlrtcio, Esq.

Chief Legat Officer f'"··· ,,, "