2 in 1 Seat Legal

[Sam]

I've been doing some research to try and understand the legality of having two kids (whose combined weight is < 170lbs) share a seat in the back of a DA40 (3 in total sitting in the back). I was surprised to come upon this from the FAA. My question to the group is do you think a PIC is legally exposed if a family of 5 uses a DA40 that way?

[Rules and Regulations]
[Pages 30885-30886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12554]
[[Page 30885]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. FAA-2011-0628]
Clarification of Prior Interpretations of the Seat Belt and
Seating Requirements for General Aviation Flights
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Clarification of prior interpretations.
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SUMMARY: This action clarifies prior interpretations of FAA's seat belt
and seating requirements. These prior interpretations state that the
shared use of a single restraint may be permissible. This clarification
states that the use of a seat belt and/or seat by more than one
occupant is permitted only if the seat usage conforms to the
limitations contained in the approved portion of the Airplane Flight
Manual (AFM). In addition, before multiple occupants use the same seat
and/or seat belt, if the pertinent information is available, the pilot
in command (PIC) must also check whether: The seat belt is approved and
rated for such use; and the structural strength requirements for the
seat are not exceeded. This clarification also emphasizes that, because
it is safer for each individual person to have his or her own seat and
seat belt, whenever possible, each person onboard an aircraft should
voluntarily be seated in a separate seat and be restrained by a
separate seat belt.
DATES: May 24, 2012.
FOR FURTHER INFORMATION CONTACT: Alex Zektser, Attorney, Regulations
Division, Office of Chief Counsel, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-
3073; email: Alex.Zektser@faa.gov.
SUPPLEMENTARY INFORMATION:
Background
On March 22, 2009, a Pilatus PC-12/45 descended and impacted the
ground near the approach end of a runway at Bert Mooney Airport in
Butte, Montana. After investigating this incident, the National
Transportation Safety Board (NTSB) determined the following.
At the time of the impact, the Pilatus PC-12/45 airplane was
operating as a personal flight under the provisions of 14 CFR part 91.
The pilot and the 13 airplane passengers were killed, and the airplane
was destroyed by impact forces and the postcrash fire. Among the 13
https://www.gpo.gov/fdsys/pkg/FR-2012-0 ... -12554.htm
passengers were six adults and seven children. Because the flight was a
single-pilot operation, eight seats in the cabin and one seat in the
cockpit were available to the 13 passengers. Thus, the number of
passengers exceeded the number of available seats. The NTSB was unable
to determine the original seating position for most of the occupants,
but the bodies of four children, ages 3 to 9 years, were found farthest
from the impact site, indicating that these children were likely thrown
from the airplane because they were unrestrained or improperly
restrained. The NTSB noted that if the accident had been less severe
and the impact had been survivable, any unrestrained occupant or
occupants sharing a single restraint system would have been at a much
greater risk of injury or death.
NTSB Request and Proposed Clarification
As a result of the March 22, 2009 incident described above, the
NTSB has requested that the FAA withdraw its prior interpretations of
14 CFR 91.107(a)(3), which permit the shared use of a single restraint
system. In response to the NTSB's request, the FAA proposed to clarify
that Sec. 91.107(a)(3) permits multiple occupants to use one seat belt
and/or seat, but that such use is only appropriate if: (1) The belt is
approved and rated for this type of use; (2) the structural strength
requirements for the seat are not exceeded; and (3) the seat usage
conforms with the limitations contained in the approved portion of the
AFM (14 CFR 23.1581(j)).
The FAA received six comments in response to its proposed
clarification. After considering the information provided in the
comments, the FAA clarifies its prior interpretations of the seat belt
and seating requirements of 14 CFR 91.107(a)(3) as follows.
Discussion of the Final Clarification
For part 91 operations, Sec. 91.107(a)(3) requires that ``each
person on board a U.S. registered civil aircraft * * * must occupy an
approved seat or berth with a safety belt and, if installed, shoulder
harness, properly secured about him or her during movement on the
surface, takeoff, and landing.'' For commercial operations under part
121, Sec. 121.311 requires that each person ``occupy an approved seat
or berth with a separate safety belt properly secured about him.''
Under both parts, children under the age of two may be held by an adult
who is occupying an approved seat or berth and no restraining device
for the child is used.
When Sec. 121.311 and Sec. 91.107 (previously Sec. 91.14) were
first promulgated in 1971, the FAA clarified that the separate use
provision for safety belts under part 121 was not intended to apply to
part 91 operations. Rather, part 91 ``requires only that each person on
board occupy a seat or berth with a safety belt properly secured about
him.'' 36 Federal Register 12511 (July 1, 1971). The FAA has previously
interpreted this provision as not requiring separate use of safety
belts. See Legal Interpretation 1990-14. At the time, this allowance
was permissible because seat belts were generally rated in terms of
strength and some were rated for more than one occupant to accommodate
side-by-side seating arrangements (i.e., bench seats) in certain
aircraft that are commonly used in operations conducted under part 91.
Thus, under the previous interpretations, the use of a seat belt and
seat by more than one occupant may have been appropriate only if: (1)
The belt was approved and rated for such use; (2) the structural
strength requirements for the seat were not exceeded; and (3) the seat
usage conformed with the limitations contained in the approved portion
of the Airplane Flight Manual (14 CFR 23.1581(j)). See 36 FR 12511; see
also 14 CFR 23.562, 23.785; Legal Interpretation 1990-14; Legal
Interpretation to Mr. C.J. Leonard from Hays Hettinger, Associate
Counsel (July 26, 1966).
In its comment, the NTSB stated that the shared use of a single
seat belt by multiple occupants is never appropriate because this type
of use drastically reduces the safety of the occupants. The NTSB asked
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the FAA to interpret Sec. 91.107(a)(3) in a way that discourages the
``unsafe practice of allowing multiple occupants to share a single seat
and/or restraint system that [is] not certified for more than one
occupant.''
Because this is a clarification of prior interpretations and not a
rulemaking, the FAA is limited in what it can do in this matter. An
interpretation of a regulation cannot ignore the ``indications of the
agency's intent at the time of the regulation's promulgation.'' Air
Transport Ass'n of America, Inc. v. F.A.A., 291 F.3d 49, 53 (DC Cir.
2002). As discussed above, when the FAA first promulgated the section
that ultimately became Sec. 91.107(a)(3), the agency stated that, in
contrast to part 121, part 91 did not require that each person have a
separate seat and/or seat belt. See 36 FR 12511. Because the FAA cannot
rewrite Sec. 91.107(a)(3) through interpretation, the FAA is bound in
this matter by the agency's stated intent at the time of this section's
promulgation--that a separate
[[Page 30886]]
seat and/or seat belt for each person is not required in all
circumstances for part 91 operations.
In addition, the FAA notes that changing Sec. 91.107(a)(3) may
have far-reaching consequences that would best be addressed through a
rulemaking. For example, in its comment, the NTSB acknowledged that
some older airplanes currently have bench-style seating that can
accommodate multiple passengers with one restraint system. The FAA
notes that airplanes with these bench-style seats make up a significant
portion of the part 91 community. In addition, aircraft with these
types of seating have a significant diversity in their specific seating
restraint arrangements--some aircraft with bench seats have a seat belt
equipped for each individual passenger while other aircraft with bench
seats have a single shared seat belt for use by everyone in the bench
seat. Because a significant portion of the part 91 community currently
uses some manner of a shared seat/seat belt, the FAA would need to
consider, as part of a rulemaking, the effects that changing Sec.
91.107(a)(3) would have on those members of the part 91 community.
Nevertheless, even though Sec. 91.107(a)(3), as previously
interpreted by the agency, may allow for shared use of a single
restraint in certain situations, the FAA agrees with NTSB that having
each passenger use a separate seat and a separate seat belt can be
significantly safer than having passengers share a seat and/or seat
belt. Accordingly, the FAA strongly encourages PICs in part 91
operations to ensure, whenever possible, that each passenger is seated
in a separate seat and restrained by a separate restraint system. With
regard to children, the FAA also strongly encourages children to be
restrained in a separate seat by an appropriate child restraint system
during takeoff, landing, and turbulence.
In its comments, the NTSB also expressed a concern that this
clarification could be interpreted to permit multiple occupants to
share a single shoulder harness. In response to NTSB's concern, the FAA
emphasizes that the proposed clarification was drafted to address the
shared use of seats and/or seat belts--not shoulder harnesses. Because
the proposed clarification did not address shoulder harnesses, this
clarification is limited solely to the shared use of seats and/or seat
belts in part 91 operations.
In their comments, the NTSB and an individual commenter also
asserted that the structural strength requirements for a seat and the
approval and rating for a seat belt are not always available to a
general aviation pilot because this information is typically not
included in the AFM. The individual commenter added that many older
aircraft do not have an AFM, but instead have an owner's manual that
contains even less information.
In response to these comments, the FAA notes that, even though the
pertinent information is sometimes not contained in the AFM,
information about seat usage limitations and seat belt approval and
rating can, in many cases, be obtained from the equipment manufacturer.
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However, the FAA agrees with the commenters that this information
cannot always be obtained from the equipment manufacturer. Accordingly,
before multiple occupants are permitted to use the same seat and/or
seat belt, if the pertinent information is available, the PIC should
check whether: (1) The seat belt is approved and rated for such use;
and (2) the structural strength requirements for the seat are not
exceeded.
In addition, before seating multiple occupants in the same seat
and/or seat belt, PICs should always check to ensure that the seat
usage conforms to the limitations contained in the approved portion of
the AFM or the owner's manual. Owner's manuals for older aircraft
typically show the permissible seating arrangements that are to be used
for the aircraft, and the number of people using a seat and/or seat
belt should not exceed the number of people shown in the owner's manual
seating arrangement.
Issued in Washington, DC, on May 18, 2012.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations, AGC-200.
[FR Doc. 2012-12554 Filed 5-23-12; 8:45 a.m.]
BILLING CODE 4910-13-P
https://www.gpo.gov/fdsys/pkg/FR-2012-0 ... -12554.htm

[Colin]

Pretty sure Diamond says one occupant per seat, but I don't have my POH hand. You need that DA62...

[Chris]

My DA40 AFM clearly states in section 2.12 that the maximum number of occupants is four. I think it would be both illegal and irresponsible to fly with five.

[Colin]

One of the accidents I read about when I was learning to fly was a guy that put his wife, her sister, their friend, and their kid under 2yrs old in a Columbia and flew it out Kern Valley. The sister's husband was following in an SUV with the dogs. Stall spin on short final (really, too close in on the base turn).

Have more people? Make two trips or get a different plane.

[Sam]

Thank you for you responses.