After hearing from a certificated flight instructor–instruments and AOPA member whose student was denied an IFR checkride on the basis of an old FAA legal interpretation of FAR 61.65 that did not age well, AOPA formally asked the agency to revisit the issue in January 2021.
The resulting February 28 memorandum overruled two prior FAA legal interpretations of FAR 61.65, specifically reversing interpretations in 2008 and 2012 that required the use of “three different kinds of navigation systems” to meet the requirements of 61.65 (d)(2)(ii)(C). In the first case, the FAA had determined that three different navigation systems had to be used, and the 2012 interpretation affirmed that conclusion—and went a step further by determining that precision approach radars and airport surveillance radars do not count as “navigation systems” for the purposes of satisfying the applicant’s required experience.
“The regulation’s plain language requires three different types of approaches, not three different navigation systems,” FAA Assistant Chief Counsel for Regulations Lorelei D. Peter noted in the February 28 memo, which rescinded the prior legal interpretations and concurred with AOPA’s position.
AOPA Vice President of Regulatory Affairs Murray Huling thanked the FAA for reconsidering the previous interpretations that had proved burdensome for flight schools and students applying for an instrument airplane rating. The 2008 and 2012 interpretations required applicants to, among other things, have completed a 250-nautical-mile flight with three approaches using different navigation systems (such as VOR, GPS/RNAV, or instrument landing system). AOPA argued this goes beyond the regulation’s requirement that this long cross-country include “three different kinds of approaches with the use of navigation systems.”
Huling said this distinction makes quite a difference, particularly for individual CFIIs and applicants who may not have access to aircraft equipped to fly approaches with three separate navigation systems—and the agency’s stance since 2008 has been unnecessarily burdensome for everyone involved. In 2020 alone, the FAA issued 31,632 instrument ratings.
“Look at the number of CFIIs and instrument students in the country, because this is going to affect every one of them,” Huling said of the recent legal reinterpretation. AOPA General Counsel Justine Harrison commended the FAA Regulatory Counsel team: “Changing a longstanding legal opinion is a heavy lift that requires a lot of internal analysis and coordination, as well as the will to revisit the status quo. The work done with issuance of a new, clear, commonsense interpretation and rescindment of outdated opinions will benefit tens of thousands of instrument students as well as their CFIs and DPEs.”
The FAA legal team agreed that the distinction between an instrument approach and a navigation system is clear in the related practical test requirements:
“Furthermore, the [airman certification standards] directs the evaluator to test an applicant on three different kinds of approaches, consisting of one precision approach and two non-precision approaches, which must use two different kinds of navigational aids,” the FAA memo states. “Therefore, ‘approach’ in §61.65(d)(2)(ii)(C) reasonably refers to an instrument approach, which is separate from a navigation system. Furthermore, under §61.65(c), an instrument rating applicant must receive training in eight different areas of operation, two of which are navigation systems and instrument approach procedures. This indicates part 61 considers navigation systems and instrument approaches as separate from one another. Therefore, ‘three different’ should be read as solely modifying ‘kinds of approaches’ in §61.65(d)(2)(ii)(C).”