Exactness of the Federal Aviation Regulations (FARs)

Recently, I was presented a question that I knew should be in the FARs but upon closer reading decided that the regulation in question was quite unambiguous.  I had talked with another “expert” in regulation reading and they were stumped as well. 

Unfortunately, the pilot I was helping was convinced that the FARs were incomprehensible and not easy to understand and I wish I could have convinced them otherwise.    In this post, I want to take a moment to combat this thinking.  I have often found that if we take a step back a little bit and dissect the terms in the regulation in question we can figure out what it actually means.  In other words, the architects of the FARs have exactly defined and used those terms and words necessary.  It is our job to know what those words and terms mean.

Note:  There are times when the architects have found the regulations to convey a meaning other than it was intended.  I ‘m not talking about those regulations (and there are a few) but want to convey to study the regulation before deciding it falls into one of those regulations.

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Ok, the regulation in question concerns the aeronautical experience necessary for an airline transport pilot (ATP) certificate. 

§61.159 ATP Aeronautical Experience

(a) Except as provided in paragraphs (b), (c), and (d) of this section, a person who is applying for an airline transport pilot certificate with an airplane category and class rating must have at least 1,500 hours of total time as a pilot that includes at least:

(1) 500 hours of cross-country flight time.

(2) 100 hours of night flight time.

(3) 75 hours of instrument flight time, in actual or simulated instrument conditions, subject to the following:

(4) 250 hours of flight time in an airplane as a pilot in command, or as second in command performing the duties of pilot in command while under the supervision of a pilot in command, or any combination thereof

(5) Not more than 100 hours of the total aeronautical experience requirements of paragraph (a) of this section may be obtained in a flight simulator or flight training device that represents an airplane, provided the aeronautical experience was obtained in an approved course conducted by a training center certificated under part 142 of this chapter.

(b) A person who has performed at least 20 night takeoffs and landings to a full stop may substitute each additional night takeoff and landing to a full stop for 1 hour of night flight time to satisfy the requirements of paragraph (a)(2) of this section; however, not more than 25 hours of night flight time may be credited in this manner.

So here was the question that was presented to me as I was helping the pilot fill out their 8710 was this:  I have 70 hours of night time and 150 night landings.  I can use my night landings for an additional “25” hours to meet  the regulation but that leaves me 5 hours short.  I have 39 hours of Level D night simulator time that I was told can count towards the 100 hours as well so everything is fine.  ???????

OK.  Stop reading this right now and decide for yourself if you can count Level D simulator time accrued at a Part 142 training center toward the aeronautical experience for the ATP certificate.  A couple extra places to look is the definitions page in both §1.1 and §61.1.  You may also be find something in the DPE guide Order 8900.2 or the Legal Interpretation database. 

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Have you come up with your own opinion yet?  I am going to go through my thought process as I searched the regulations for the correct answer to our question.  Naturally, I start reading from the top very carefully for any clues to answer the question.    The regulation requires 1500 hours of total time as a pilot.  What does that mean?  To me, it states 1500 hours of pilot time.  Pilot Time is defined in §61.1 as experience obtained as (1) a required pilot (2) in a simulator while receiving instruction from an authorized instructor (3) as an authorized instructor teaching in a simulator.  If we continue reading in (5) it states that we can use up to 100 hours of simulator time to count for the ATP experience so the simulator time should count right?

Let’s continue reading the regulation.  The regulation requires 100 hours night flight time.  We know what night means from §1.1 as the time between the end of civil twilight to the beginning of civil twilight.  We also know what flight time means for the same regulation.  Flight means the time when an aircraft moves under its own power to the time it comes to a stop under its own power.

At this point, I decided to look into the DPE guide Order 8900.2 to see how the examiner verifies the aeronautical experience of the applicant.  To my surprise, as well as to the surprise “expert” friend of mine, there was no guidance on how to verify the aeronautical experience.  It simply says the examiner must verify the aeronautical experience.  I now decided to see if there have been any legal interpretations of the regulation and didn’t find anything.

My expert friend decided to call the local FSDO for their interpretation and two ASI’s agreed that the simulator time did not count but really did not know what the correct answer was.  After calling AFS-600, the group responsible for pilot testing and training, we got our answer.  They read the regulation and immediately pointed out something that both of us missed.  The regulation required 100 night flight time experience.  The definition of flight time requires an airplane and not a simulator. 

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I sat down for a second and decided to process what we had learned.  First, we were not wrong in the fact that the applicant can use 100 hours of simulator time to meet the total pilot experience requirement. of paragraph (a).  The FAR architects specifically placed those words “flight time” in points (1)-(3) to differentiate between “pilot time” and “flight time” to the reader.  In the end, it was a great exercise to see that we need to step back and recall the terms that are used.  Those terms are the legal basis for the regulation.  In the end, the regulation was exact and answered our question, we were just too attached to our way of thinking to see it for what it was.

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A couple weeks after writing this post, I decided to research how far back the words “flight time” appeared in the ATP experience and to my surprise discovered it was listed in the CARs; the predecessor to the FARs.  I’ve since discovered that the architects wanted to differentiate between flight engineer time and pilot time when an applicant went up for their ATP certificate.  Another interesting thing is that simulators started popping up in the early 1950s so it is possible my original hypothesis is correct.  At this point, there is no way to know.

Good Moral Character for Airline Transport Pilots

It becomes quickly obvious when you start to study for you Airline Transport Pilot (ATP) certificate that part of the prerequisites for the certificate is to have good moral character.  See FAR §61.153 ATP General Eligibility Requirements.  What does good moral character actually mean?

To be eligible for an airline transport pilot certificate, a person must:

(a) Be at least 23 years of age;

(b) . …

(c) Be of good moral character;

(d) ….

The most obvious place to look is the definition sections of §1.1 and §61.1 but you won’t find anything there.  In fact, there is no definition of what “good moral character” actually means.  It would appear that the FAA can violate us for not having good moral character without actually defining what that means.  In fact, this wording precedes the modern FAA back to at least 1949 when the U.S. aviation industry was regulated by the Civil Aeronautics Board (CAB). 

Fortunately for us, the NTSB Administrative Law Judges (ALJ) have defined exactly what good moral character means and how it can be upheld in a legal proceeding. 

The term “good moral character,” as used in section 61.153(c), was first discussed at length by the Civil Aeronautics Board (CAB) (the Safety Board’s predecessor in adjudicating air safety proceedings) in Administrator v. Roe, 45 CAB 969 (1966). In that case, the CAB explained:

“With regard to pilots, good moral character is established as a requirement only for the holders of airline transport pilot certificates. Only the holders of these certificates may act as pilots-in-command of common carrier aircraft, and it is evident that the requirement that such persons be of good moral character reflects the responsibilities and duties entrusted to them…. Section [61.153(c)] reflects the Administrator’s determination that a person entrusted with these responsibilities must not merely comply with specific requirements of technical competence but also must display a firmness and stability of moral character that indicates his ability and willingness to assume such responsibilities. It is essential that he possess to a high degree an awareness of the responsibilities entrusted to him irrespective of his own desires.”

Although we don’t have access to the original Administrator vs. Roe decision (at least I can’t find it) another case decision cites part of that decision in Administrator vs. Saunders.

Administrator v. Roe, 45 C.A.B. 969 (1966), contains a detailed discussion of the “good moral character” standard.  The CAB there said:

We find that the Administrator had ample grounds for revoking respondent’s air transport rating. The record establishes a pattern of conduct which departs from ordinary patterns of morality and shows that respondent is capable of acting without inhibition in an unstable manner and without
regard to the rights of others. . . . [H]is conduct was vindictive and entirely self-motivated. The publication of the photographs destroyed a marriage, subjected [two other persons] to extreme humiliation, and resulted in an attempted suicide by [one of them]. Such action indicates a significant character deficiency and a complete disregard for the rights of other human
beings. . . .[T]he moral character traits disclosed in this record provide us with no reasonable assurance that these character deficiencies will not result in future behavior inimical to safety in air transportation.

Let me put this into perspective for you.  Since 1992 on the NTSB case decision database there have been 15 cases appealed to the full administrative law judges panel.  We can assume that the actual number of pilots violated under this “good moral character” clause is somewhat higher as not all pilots have appealed the decision of the initial oral decision from the NTSB law judge. 

Some of these cases deal with a previous felony or conviction not reported to the FAA on a medical application. See FAA vs. Spyke.  (Remember the question, have you ever been convicted of a non-traffic violation?)  The ALJ have further stated,

We noted that evaluation of assertions that an airman lacks the moral character required of ATP certificate holders is significantly facilitated by reference to the “moral guidance that written prohibitions in a criminal code can typically supply, given the societal judgments about right and wrong that our criminal laws can reasonably be said to incorporate.”

Other cases deal with intentional fraudulent work by a mechanic who was also an ATP certificate holder. (FAA vs. Robbins) In that case, the mechanic intentionally falsified an annual entry and then tried to extort the aircraft owner for money to keep his mouth shut.  That, I would say, is not good moral character.  Period.

Another case (FAA vs. Minter) describes an ATP certificate holder as falsifying a check due to signing the check as “President: for a corporation that hasn’t been incorporated in any state.  The respondent embezzled money and tried to take advantage of the bankruptcy proceedings.  The ALJ stated this ATP certificate holder does not have good moral character.

I think that we can definitely conclude that there is a definition of “good moral character” and the FAA will use the regulation as a violation to suspend or revoke all of your certificates.  The best bet is to talk to a lawyer if you are ever convicted of something; no matter how small it is.  A single conviction may not justify a violation of “good moral character” (see FAA vs. Saunders) but if previous behavior shows the same disregard for the laws of the land… watch out.