“Hangar-flying lawyers” (like “guard-house lawyers” to us military veterans) who are not really lawyers at all but are usually experienced and insightful pilots and flight instructors, enjoy wrestling with interesting legal problems. I have enjoyed many such discussions.
Here is one raised by a just-issued (August 2013), legal interpretation from the FAA chief counsel that delves into the question of who—when two qualified pilots of a dual control aircraft are on board—may log time as pilot in command of a typical general aviation aircraft (that is, one that is certificated for single-pilot operation). We last dealt with this subject a few years ago (“Pilot Counsel: Logging Pilot-in-Command Time,” March 2010 AOPA Pilot). This recent interpretation deals with a commonly encountered situation in which one pilot is flying to maintain instrument currency and the other pilot is acting as the required safety pilot.
Pilots A and B rent a light twin-engine aircraft in order for Pilot A to operate it to maintain instrument currency. (The logging rules apply regardless of whether the pilots are flying a multiengine aircraft.) Pilot A intends to make several practice instrument approaches under simulated IFR conditions while flying VFR. Both pilots have appropriate ratings for the aircraft being flown. After takeoff, Pilot A puts on a view-limiting device and Pilot B acts as a safety pilot (“Pilot Counsel: Safety Pilot,” August 2013 AOPA Pilot). Pilot A is the sole manipulator of the controls throughout the entire flight. The interpretation assumes that Pilot B is acting as PIC for the flight. The question is who may log multiengine PIC time in this scenario?
It is FAR 61.51(e) that governs the logging of PIC flight time. The relevant part states that a private (or commercial, sport, or recreational) pilot may log PIC time for the time during which that pilot is “the sole manipulator of the controls of an aircraft for which the pilot is rated or has privileges” or “acting as pilot in command of an aircraft on which more than one pilot is required under…the regulations under which the flight is conducted.”
According to this 2013 interpretation, “Pilot A may log the entire flight as PIC time as that pilot is the sole manipulator of the controls for the entire flight. Assuming that Pilot B is acting as PIC for the flight, Pilot B may log any portion of the flight during which Pilot A operated in simulated instrument flight and Pilot B acted as the safety pilot because Pilot B’s presence is required for that portion of the flight under FAR 91.109(c). [Here is where the interpretation gets sticky.]However, if Pilot A is acting as PIC for the flight, then only Pilot A may log PIC time during the flight. Pilot B is a required crewmember under FAR 91.109(c) and may log second-in-command time under FAR 61.51(f) during the time that Pilot A operates in simulated instrument conditions.” This quote can be read to mean that Pilot B may not log any time as PIC because it says, “then only Pilot A may log PIC time during the flight.”
Another FAA interpretation, one issued in 2009, that has a similar scenario, raises the same question, but maybe a different result. In this 2009 interpretation, the total flight time was 2.2 hours and the total simulated instrument time was 2.0 hours. This interpretation says “that Pilot A may log the entire flight (2.2 hours) of PIC flight time because that pilot was the sole manipulator of the controls for the entire flight. Pilot B may log the portion of the flight during which Pilot A operated in simulated instrument flight and Pilot B acted as safety pilot (2.0 hours) because Pilot B was a required flight crewmember for that portion of the flight under 14 C.F.R. Section 91.109(b).”
Is there an argument allowing Pilot B to log PIC time? Can FAR 61.51(e) be interpreted to allow both pilots to log PIC time? Of course, there is no question about Pilot A. But cannot Pilot B be covered by the language of FAR 61.51(e)(1)(iii) that says in pertinent part that “a sport, recreational, private, commercial or airline transport pilot may log pilot-in-command flight time for flights—when the pilot…acts as pilot in command of an aircraft for which more than one pilot is required under…the regulations under which the flight is conducted?” Both of these interpretations concede that more than one pilot, a safety pilot, is required in simulated instrument flight by FAR 91.109.
An interesting legal conundrum for hangar-flying lawyers: Buried in these interpretations is the puzzling differentiation between “acting as pilot-in-command” that apparently sometimes may not be logged as PIC, and “logging pilot-in-command” time.