PILOT-Counsel: Logging Flight Time

January 2019 editorial comment and update: ​This article first appeared in the January 2001 AOPA PILOT magazine. It addresses how incorrect logging of flight time can lead to an FAA claim of falsification.  The cited falsification regulation, FAR 61.59, is still very much in effect and falsification remains a troublesome issue today, although it’s more frequently linked to a mistake or misstatement on an application for an FAA medical certificate than to pilot logbook entries.
 
Let’s pivot to another issue touched on in John Yodice’s article relating to the logging of second-in-command flight time.  FAR 61.51(f) specifies, in short, that SIC time may only be logged by a qualified pilot in an aircraft that requires more than one pilot by type certificate, or when more than one pilot is required by regulation (think safety pilot SIC in this latter instance). It sounds simple enough, but over the years we’ve heard from pilots and operators who have incorrectly believed that pilots can log SIC time when performing flight duties while occupying the co-pilot seat of single pilot aircraft. And some of these pilots have used this flight time in calculating the aeronautical experience hours required for eligibility to obtain an ATP and which has potential falsification implications. I think most of us will agree that right seat time can be valuable experience—it has just never been log-able, that is, until recently.
 
In 2018 the FAA amended a regulation and issued an Advisory Circular that details a pathway for pilots, under certain conditions, to log SIC flight time during operations that do not require a second pilot (see FAR 135.99 and AC 135-43). It’s called the Second-in-Command Professional Development Program. In essence, this program permits Part 135 charter operators to use qualified pilots to serve as SICs in multiengine or single-engine, turbine-powered airplanes that do not require a second pilot and in turn, the SIC pilots may log the time and use it to meet certain aeronautical experience requirements.  This is especially useful to both pilots and operators, as it expands opportunities for logging pilot time and provides increased safety inherent in multi-crew operations.    
 
The charter operator/carrier and the SIC pilot must adhere to the specific requirements prescribed in 135.99.

The logging of flight time can sometimes create real legal problems for pilots.  This is especially true, as a recent case tells us, if the FAA believes that a pilot is intentionally padding his or her time to meet some FAA requirement.  Pilots are not generally aware that then, a pilot will be facing fraud or intentional falsification charges.  According to the FAA, these are serious charges that go to the heart of the pilot’s qualifications.  The FAA will always seek the revocation of all of the pilot’s FAA certificates based on fraud or intentional falsification with respect to FAA records or applications.  Even unintentional mistakes, which we all make, can create legal problems for pilots in trying to explain them away to a skeptical FAA. 
 
The case that we are reporting involves a hapless pilot who had been planning his entire life for a career in aviation, following his father who is a retired airline pilot.  The son was a commercial pilot and flight instructor, supporting himself and his young child (he had custody) by giving flight instruction.  At the same time, in order to advance his career, he was working as a part-time pilot for a company that provided both on-demand charter service and aircraft management.  The company had four aircraft: two single-engine Beech Bonanzas, a twin-engine Beech Baron, and a twin-engine Beech King Air.  The pilot was flying as captain on the Bonanzas.  He was also receiving training from the company to upgrade to captain on the Baron.  And also at the same time, with the help of the company, he was working on getting his Airline Transport Pilot certificate.
 
The pilot got paid for all of the flying he did with the company.  Not only did he get paid to captain the Bonanzas on revenue flights, the company paid him to fly in the company’s Beech King Air and Beech Baron.  On the twins, his job was to observe company operations on Part 135 flights, to prepare him to upgrade.  On those trips, he would fly with the person who was the company’s training captain and check airman.  He would be a right-seat observer on the Part 135 legs, and he would receive flight instruction on the non-Part 135 legs when there were no passengers.  Even on the Part 135 legs, he would help out by operating the radios, helping with the charts, giving passenger briefings, and the like. 
 
How he logged this time is what got him in trouble with the FAA.  His practice was to record all the paid time he flew for the company on his kneeboard.  He would later periodically record the time in his logbook.  He believed ​he was allowed to log all of the time for which he was paid for flying with the company. He couldn’t see anywhere in the regulations where he couldn’t list it toward total flight time, so long as he didn't claim any of the time as 

pilot in command unless he actually was.  He did originally claim some time as second in command because the company listed him as second in command on the company manifests for the flights.  In two entries, amounting to less than 8 hours, he logged this second-in-command time with explanatory notes such as “charter crew concept.”  But then he was told by the POI that the flight could not be logged as second in command because he was technically not a required flight crewmember on the Part 135 flights and the company was not approved to train second in command.  So, he crossed out the two second-in-command entries but still listed the total time.  After that, while he did not log the time as second in command, in the remarks section he recorded that he was “acting” second in command.  He felt that since he was an observer, performing functions, and being paid by the company, it was proper.  He saw nothing in the regulations that prevented it.  The company knew how he was logging the time.
 
Here is how his logged flight time was called into question.  He was ready to upgrade to captain on the Baron.  He was scheduled with the company’s FAA Principal Operations Inspector to take a check ride in the Baron for the addition of multiengine privileges under Part 135.  The company, as a favor to him, asked the FAA inspector to give him the practical test for an airline transport pilot certificate at the same time using the company Baron.  He presented himself to the FAA inspector with his application and logbook to take the certification test.  On his application (FAA Form 8710-1, Airman Certificate and/or Rating Application), he claimed 1926 hours of total pilot time, 1846 hours of pilot-in-command time, and 598 hours of cross country pilot-in-command time.  These times came right out of his logbook, and included the time he flew for the company.
 
The inspector, in reviewing the logbooks to confirm the flight time, noticed that some of the entries showed time in multiengine aircraft, some in fairly sophisticated multiengine aircraft (the King Air), and some indicated that the time was flown under Part 135 or annotated with the word “charter.”  The inspector knew that the pilot had not yet been qualified to fly multiengine under Part 135.  The inspector questioned the entries.
 
After some discussion with the inspector, including a review of Part 61, the pilot became convinced that he had been mistaken in how he recorded some of the time.  So, he made changes to the entries in his logbook to comport with what the inspector told him he could log under Part 61.  Even though none of the disputed time was necessary for the ATP or Part 135 multiengine check, that didn’t solve his problem.  The check ride was suspended.  The FAA ultimately charged him with a violation of FAR 61.59.  The FAA, on an emergency basis (an immediate grounding), revoked all of his FAA certificates, including his commercial pilot and flight instructor certificates.  The FAA charges focused on ten entries in his logbook, amounting to some 23 hours of pilot time, all paid time, flying for the company.
 
Was the pilot padding his time, or more importantly, was he guilty of fraud and intentional falsification in violation of FAR 61.59?  The FAA believed so, and so did the NTSB.  The pilot appealed the case to the NTSB.  The NTSB sustained the FAA charges as well as the revocation of all of his certificates.  Whether we agree or disagree with the outcome of this case, it is a dramatic illustration of what can happen to a pilot who, innocently or otherwise, pads his or her flight time.  Pilots need to know about it. 
 
Let’s take a look at the regulation in question.  FAR 61.59(a) provides that: “No person may make or cause to be made:
(1)Any fraudulent or intentionally false statement on any application for a certificate, rating, authorization, or duplicate thereof, issued under this part [Part 61, which deals with the certification of pilots, flight instructors, and ground instructors];
(2)Any fraudulent or intentionally false entry in any logbook, record, or report that is required to be kept, made, or used to show compliance with any requirement for the issuance or exercise of the privileges of any certificate, rating, or authorization under this part [the same Part 61].”
 
Recognizing how strict the FAA and NTSB can be, it is also a good idea to review FAR 61.51 which covers pilot logbooks, and tells in detail what needs to be logged, and how.  FAR 61.51 always generates a lot of questions from pilots.  It is too long to deal with in this column.  We will address it in future columns.
 
 
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John Yodice is the Senior Partner of the Law Offices of Yodice Associates, a law firm experienced in aviation legal matters involving DOT, FAA and TSA certification and compliance, corporate governance, aircraft transactions and more. www.yodice.com
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