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Many may remember that in 2006 FAA came out with a legal interpretation that allowed non-night current CFIs to instruct with non-night current students/clients as the CFIs were not "passengers". This was the Kortokrax letter.
Well, a memo came out from Legal in August 2024 saying that Kortokrax had been rescinded in July 2023 (!).
OK, that's weird enough, a nearly 12 month hiatus in telling aviators of the change in the legal interpretation (were some CFIs violating the regulations by in the intervening year?). One can argue over the merits of the decision to axe Kortokrax, but the method was abysmal.
But wait, there's more!
I'm told that FAA has come out with a NPRM which, among other things, specifically INSERTS into the FARs the same exception that Kortokrax inserted by legal interpretation! Notwithstanding a number of CFIs who think that the exception is bonkers. Here's a snippet from the Interwebs (which may be our only source of news out of the FAA Legal area) on point:
"It gets even better... because the FAA hates consistency and making things easy, they are currently in the process of changing the actual regs to allow this *in some circumstances*... reposting what I wrote in another group:
Very awkwardly, apparently the FAA is currently in the process of amending the FARs via this NPRM to restore the ability of a non-night-current (or passenger current) CFI to provide instruction that was previously allowed under Kortokrax... ?
Apparently the main issue is they didn't like that the letters "were based on the unsupported conclusion that a flight instructor and a person receiving flight training are not considered passengers to one another". So they are amending 61.57 to specifically create an exception to the 61.57(a) and 61.57(b) rules for receiving flight training rather than claiming they don't apply because the CFI/student aren't passengers. (I suspect this is further downstream effects of the Warbird legal fight)
They go on to address this scenario exactly:
"Under the proposed rule, and consistent with the aforementioned legal interpretations, the FAA contemplates a scenario whereby neither the flight instructor nor the person receiving instruction has met the recent flight experience requirements of § 61.57(a) or (b). In this scenario, the person receiving instruction, if otherwise qualified,[21] would be permitted to act as the PIC and would not be subject to the requirements of § 61.57(a) or (b) to act as PIC."
So they will carve out an exception *only* for "otherwise qualified" pilots, i.e. fully rated and endorseed pilots... so this does *not* apply to CFIs flying with student pilots, or pilots lacking some necessary endorsement.
Anyway, there is proposed text for a new 61.57(e):
"(e) * * *
(5) Paragraphs (a) and (b) of this section do not apply to a person receiving flight training from an authorized instructor, provided:
(i) The flight training is limited to the purpose of meeting the requirements of paragraphs (a) and (b) of this section;
(ii) Notwithstanding the provisions of paragraphs (a) and (b), the person receiving flight training meets all other requirements to act as pilot in command of the aircraft; and
(iii) The authorized instructor and the person receiving flight training are the sole occupants of the aircraft."
So under this logic, the "acting PIC" in these cases is actually the person receiving the dual instruction, since they are the ones being exempted from 61.57(a) and (b).
NPRM here:
https://www.federalregister.gov/.../public-aircraft..."
Have fun y'all, and be careful out there.
Well, a memo came out from Legal in August 2024 saying that Kortokrax had been rescinded in July 2023 (!).
OK, that's weird enough, a nearly 12 month hiatus in telling aviators of the change in the legal interpretation (were some CFIs violating the regulations by in the intervening year?). One can argue over the merits of the decision to axe Kortokrax, but the method was abysmal.
But wait, there's more!
I'm told that FAA has come out with a NPRM which, among other things, specifically INSERTS into the FARs the same exception that Kortokrax inserted by legal interpretation! Notwithstanding a number of CFIs who think that the exception is bonkers. Here's a snippet from the Interwebs (which may be our only source of news out of the FAA Legal area) on point:
"It gets even better... because the FAA hates consistency and making things easy, they are currently in the process of changing the actual regs to allow this *in some circumstances*... reposting what I wrote in another group:
Very awkwardly, apparently the FAA is currently in the process of amending the FARs via this NPRM to restore the ability of a non-night-current (or passenger current) CFI to provide instruction that was previously allowed under Kortokrax... ?
Apparently the main issue is they didn't like that the letters "were based on the unsupported conclusion that a flight instructor and a person receiving flight training are not considered passengers to one another". So they are amending 61.57 to specifically create an exception to the 61.57(a) and 61.57(b) rules for receiving flight training rather than claiming they don't apply because the CFI/student aren't passengers. (I suspect this is further downstream effects of the Warbird legal fight)
They go on to address this scenario exactly:
"Under the proposed rule, and consistent with the aforementioned legal interpretations, the FAA contemplates a scenario whereby neither the flight instructor nor the person receiving instruction has met the recent flight experience requirements of § 61.57(a) or (b). In this scenario, the person receiving instruction, if otherwise qualified,[21] would be permitted to act as the PIC and would not be subject to the requirements of § 61.57(a) or (b) to act as PIC."
So they will carve out an exception *only* for "otherwise qualified" pilots, i.e. fully rated and endorseed pilots... so this does *not* apply to CFIs flying with student pilots, or pilots lacking some necessary endorsement.
Anyway, there is proposed text for a new 61.57(e):
"(e) * * *
(5) Paragraphs (a) and (b) of this section do not apply to a person receiving flight training from an authorized instructor, provided:
(i) The flight training is limited to the purpose of meeting the requirements of paragraphs (a) and (b) of this section;
(ii) Notwithstanding the provisions of paragraphs (a) and (b), the person receiving flight training meets all other requirements to act as pilot in command of the aircraft; and
(iii) The authorized instructor and the person receiving flight training are the sole occupants of the aircraft."
So under this logic, the "acting PIC" in these cases is actually the person receiving the dual instruction, since they are the ones being exempted from 61.57(a) and (b).
NPRM here:
https://www.federalregister.gov/.../public-aircraft..."
Have fun y'all, and be careful out there.
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