FAA Revises CVR Requirements
In 1988, the FAA promulgated 14 C.F.R. §135.151(a) which provides:
No person may operate a multiengine, turbine-powered airplane or rotorcraft having a passenger seating configuration of six or more and for which two pilots are required by certification or operating rules unless it is equipped with an approved cockpit voice recorder…
A cockpit voice recorder is required if two pilots are required for the aircraft on its type certificate data sheet (TCDS) or if required by an appropriate operating rule for a particular operation. One such rule is 14 C.F.R. §135.101, which addresses SIC requirements for operations under instrument flight rules and provides:
Except as provided in §135.105, no person may operate an aircraft carrying passengers under IFR unless there is a second-in-command in the aircraft.
Considering §135.151 and §135.101 in isolation, one would conclude that a cockpit voice recorder is generally required for multiengine, turbine-powered airplane or rotorcraft operations having a passenger seating configuration of six or more. However, there is an exception to the operation rule requirement in the form of 14 C.F.R. §135.105(a) which provides:
Except as provided in §§135.99 and 135.119, unless two pilots are required by this chapter for operations under VFR, a person may operate an aircraft without a second-in-command, if it is equipped with an operative approved autopilot system and the use of that system as authorized by appropriate operation specifications.
To be clear, when discussing a multiengine, turbine-powered airplane or rotorcraft having a passenger seating configuration of six or more, there are two reasons a cockpit voice recorder would be required, the first being if it is required by virtue of the Type Certificate Date Sheet, and the second if it is by virtue of an operating rule such as §135.101. On its face, §135.105 provides an exception to the rule found in §135.101.
FAA CHIEF COUNSEL REVISES INTERPRETATION ON COCKPIT VOICE RECORDER REQUIREMENTS
HISTORICAL TREATMENT OF THE COCKPIT VOICE RECORDER BY AGC-200
In 2012, AGC-200 received a request for an interpretation from the Technical Support Branch in the Central Region regarding the SIC Rules applicable to a Cessna 525 aircraft. In responding to that interpretation, AGC-200 clarified the training requirements for the SIC, but also noted that CVR Rules have nothing to do with the weight of the aircraft. AGC-200 concluded that a Cessna 525 was required to have a CVR based upon its seating configuration and the Type Certificate Data Sheet requirement for two pilots. The Cessna 525 is unique in that the Type Certificate Data Sheet specifies that the airplane requires two pilots or one pilot with a specified autopilot system. The 2012 interpretation by AGC-200 was a memorandum to Jack Swenson from Rebecca MacPherson of February 29, 2012 (the “Swenson Memorandum”). In the Swenson Memorandum, AGC-200 reasoned that the need for a cockpit voice recorder should not be based on the least common denominator of a sophisticated aircraft, i.e., the autopilot system.
On October 28, 2014, AGC-200 received a request for an interpretation regarding the applicability of §135.151 to a requestor’s Beech 200 operated under Part 135. (See letter to Bill Landis from Mark Bury, Esq., October 28, 2014, “The Landis Interpretation”). In the Landis Interpretation, AGC-200 once again declared: “The ability to operate under the exception in §135.101 using an autopilot system instead of a second pilot, does not negate the need for a cockpit voice recorder.” In effect, the Swenson Memorandum and the Landis Interpretation negated the clear language of §135.105(a) that provides relief from the requirements for two pilots if the aircraft may be flown single pilot with an approved autopilot system authorized by appropriate operation specifications.
REVISIONS TO INTERPREATIONS REGARDING COCKPIT VOICE RECORDERS
After AGC-200 issued the Landis Interpretation on October 28, 2014, Douglas Carr, Vice President of Regulatory and International Affairs of the National Business Aircraft Association dispatched a letter to the FAA of December 19, 2014, regarding the FAA’s interpretations and how they affect member-operators of the NBAA. Then, AGC-200 became aware that many Part 135 operators do not have second-in-command (SIC) programs. Rather, those Part 135 operators rely strictly on autopilot systems to operate single pilot in IFR conditions. In those instances, many Part 135 operators were not employing cockpit voice recorders. Further, AGC-200 learned that FAA field personnel were not consistent in providing guidance to operators as to whether a cockpit voice recorder was required. Accordingly, AGC-200 realized the Landis Interpretation will have a significant operational impact on single pilot operations using an autopilot system without a cockpit voice recorder.
In light of the foregoing, AGC-200 issued a revised interpretation on April 10, 2015, providing:
In light of these circumstances, we now determine it is reasonable to read §135.105(a) as an operating rule that provides relief from the two-pilot requirement of 135.101, and find that a CVR is not required for operations under §135.105 when the required autopilot is used to comply and the certificate holder possesses the appropriate operation specifications in order to conduct single pilot operations under §135.105.
However, when the required autopilot system is not functional, the aircraft is restricted to either VFR operation with a single pilot or to operation with two pilots under a valid SIC program with a CVR installed on the aircraft and used during the operation. In those cases where an autopilot is not functional for any reason, operations using an SIC may only be conducted if the operator has a fully approved SIC program and the aircraft is equipped with the CVR required by §135.151. If no CVR is installed on an aircraft configured for six or more passengers, an operator may not conduct two pilot operations with that aircraft.
We continue to hold the position that a two-pilot requirement in a TCDS requires the use of a CVR under §135.151, and that the relief by an operating rule such as §135.105 extends only to the requirement of §135.101, not to any certification rules or provisions in a TCDS.
SUMMARY AND CONCLUSION
A casual reading of the FAA interpretation on cockpit voice recorders to Douglas Carr of the NBAA issued by Mark N. Bury, Esq. of April 10, 2015, leads one to conclude that AGC-200 rendered previous interpretations in a vacuum and ignored the exception provided in §135.101(a), that a cockpit voice recorder would not be required for single pilot IFR operations conducted under Part 135 when the autopilot system and the use of that system was authorized by appropriate operation specifications. While the revised interpretation of April 10, 2015, finally gives credence to §135.105(a), and the exception to a need for a cockpit voice recorder in single pilot operations with an autopilot system, still, if the autopilot system becomes inoperative, the Part 135 operator must have two pilots,an approved SIC program and a cockpit voice recorder installed in the aircraft. Absent those requirements being satisfied, the Part 135 operator will be restricted to single pilot VFR Operations until the autopilot is repaired and returned to functional status.