Greg Reigel's Aero Legal Services

When Is A Touch-And-Go Landing Not A Landing?

By Gregory J. Reigel

© December, 2015 All rights reserved.

As pilots, we all know that with every takeoff we perform, at some point after that takeoff a landing will occur, some better than others. This is true whether we are flying to a destination or simply performing touch-and-go takeoffs and landings in the local pattern. However, the term "landing" may mean different things in different contexts.

For example, in a recent decision issued by the National Transportation Safety Board, Administrator v. Boylan, the Board determined that a touch-and-go landing did not qualify as a "landing" for purposes of determining compliance with 14 C.F.R. § 91.151(a)(1). The case involved a round-trip flight in which the airman departed from his home-airport with the intention of performing touch-and-go's at two other airports before returning back to his home-airport. Unfortunately, after performing the touch-and-go's at those two airports, the airman was unable to make it back to his home-airport due to fuel exhaustion, and the flight terminated in an off-airport landing.

Naturally, the FAA was not pleased. The FAA initiated an enforcement action to suspend the airman's ATP certificate for a period of 120 days for the airman's alleged violation of 14 C.F.R. §§ 91.103(a) (failure to become familiar with all information regarding the proposed flight), 91.151(a)(1) (day VFR fuel minimums requiring enough fuel to fly to the "first point of intended landing" and for another 30 minutes) and 91.13(a) (careless and reckless). The airman appealed the order of suspension, and after a hearing the Administrative Law Judge ("ALJ") determined that the airman failed to adequately preflight the aircraft because he did not ensure the aircraft contained sufficient fuel for the flight. As a result, the ALJ found the airman violated §§ 91.103(a) and 91.13(a).

However, in a surprise decision, the ALJ concluded the airman did not violate § 91.151(a)(1) because his touch-and-go landing at the first airport was a landing that occurred at the airman's "first point of intended landing." As a result, the ALJ reduced the suspension of the airman's ATP certificate to 105 days. Not surprisingly, the FAA appealed the ALJ's decision to the full Board.

On appeal, the FAA argued the ALJ's determination that a touch-and-go qualified as a landing for purposes of § 91.151(a)(1) was in error. The FAA also argued the ALJ should have deferred to the FAA's interpretation of the regulation. The Board agreed with the FAA and concluded “first point of intended landing” in § 91.151(a)(1) is "the point at which the aircraft finally comes to rest."

In support of its decision, the Board stated:

The Administrator could not achieve the safety purpose of reducing the risk of fuel exhaustion accidents if an operator only needed to have sufficient fuel to conduct a touch-and-go, as well as fly for an additional 30 minutes, notwithstanding the duration of the remaining flight before the aircraft finally comes to rest.

The Board also rejected the ALJ's reliance upon 14 C.F.R. § 61.57 (recent flight experience: pilot in command) and observed that "[w]hat constitutes a “landing” or “landing to a full stop” under § 61.57 does not define what would constitute the “first point of intended landing” under § 91.151(a)." It further disagreed with the ALJ's finding that a touch-and-go landing marks the end of one flight and the beginning of a new one. Rather the Board found such an interpretation would be illogical because a pilot performing a touch-and-go doesn't have a chance to perform a preflight checklist or visually inspect the fuel tanks before the aircraft takes off again.

Additionally, the Board observed that if the ALJ's interpretation were correct, then § 91.151(a)(1)'s fuel requirement would begin anew with each touch-and-go takeoff. As a result, even under the ALJ's interpretation, in the case before it the evidence still supported the airman's violation of § 91.151(a)(1) because the off-airport landing due to fuel exhaustion showed that he did not meet his fuel reserve minimums when he departed his second and third airports. Thus, the Board reversed the ALJ's decision regarding the § 91.151(a)(1) violation and reinstated the 120 day suspension of the airman's ATP certificate.

So, what can we learn from this case? Well, the obvious answer is to make sure you have enough fuel for your intended flight in compliance with the applicable regulations. The not-so-obvious answer is that a "landing" isn't always a "landing." Not particularly helpful, I know.

However, this not-so-obvious answer highlights the importance of understanding not only individual regulations, but also the distinctions between the regulations. Although it may seem reasonable to think that the language of one regulation should mean the same thing in the context of a different regulation, that isn't always the case, unfortunately. As airmen, we all need to understand the meaning of each regulation applicable to our flights in order to operate in compliance with the regulations and safely.