Legal Briefing

Is FAA Guidance Legally Binding?

Pilots trying to sort through all the aviation-related information they encounter during their training often ask whether the guidance provided by the FAA in its written publications such as the Aeronautical Information Manual (AIM) is regulatory. That is, just as pilots are responsible for knowing and complying with the federal aviation regulations (FARs), are they also responsible for knowing and complying with FAA guidance? Very often, this question is quickly answered in the negative, since FAA "guidance" is not subjected to the rigors of the rule-making process. While such guidance may not be regulatory, it may still be in your best interest to know about applicable publications and consider that advice in your operations.

The FAA publishes numerous advisory circulars and agency orders. In them, the FAA sometimes attempts to interpret a regulation, either by explaining the language or by describing a factual scenario to which the regulation would apply. The AIM is a well-known FAA publication. Pilots want to know, "Do I have to comply with the AIM like I would an FAR?"

Let's first look at what the FAA says about the AIM's purpose and scope.

"This publication, while not regulatory, provides information which reflects examples of operating techniques and procedures which may be requirements in other federal publications or regulations. It is made available solely to assist pilots in executing their responsibilities required by other publications." The FAA makes a similar comment relating to advisory circulars.

It seems that the FAA specifically recognizes the guiding nature of these informal publications. The documents are meant to "assist" pilots, and there is no specific regulatory obligation that the pilot use that guidance. However, this view has been changing in practice. It seems that the FAA views its statements in these publications as interpretations of the regulations and thus binding on the pilot. Let me explain.

The FAA has the authority to suspend or revoke an airman certificate on the basis of a violation of a regulation. The certificate holder has the right to have the FAA's action reviewed by an independent arbiter, the National Transportation Safety Board. The NTSB is not bound by the FAA's findings of fact. But, under language added to the statute in 1994, the NTSB is now bound to defer to the FAA's validly adopted interpretations of laws and regulations unless the board finds the interpretation to be arbitrary, capricious, or otherwise illegal.

Many questions come to mind when we look at this statutory allowance. What is a validly adopted interpretation? Is an airman responsible for complying with FAA guidance in a publication that the airman does not know about or has not consulted? What if the FAA guidance is not the only manner of compliance? We do not yet have definitive answers for these questions. A few cases give us an idea of what may happen, however.

In older NTSB cases, both the FAA and the airman have used sections of the AIM to assess whether an airman's conduct was in violation of the FAR or not. For example, an airman attempted to justify a right turn during his approach to the airport as part of a "straight-in" approach as set forth in the AIM. But the case did not rely on the new statutory language of deference.

In a more recent NTSB case involving a pilot's misunderstood readback of an ATC instruction that ATC failed to correct and which resulted in an altitude deviation, the NTSB found that because the pilot acted as best he could to understand and comply with the ATC instruction, he could not be held responsible for the deviation. But the FAA appealed the NTSB's decision to the Court of Appeals, which held that the NTSB must defer to the FAA's interpretation that the pilot is responsible for accurately understanding and complying with an ATC instruction absent an equipment malfunction or an emergency. The court sent the case back to the NTSB, which then had to find the pilot in violation.

These cases suggest that you may be held responsible for complying with FAA guidance. Or, you could find yourself defending against an interpretation of a regulation that the FAA announces, for the first time, in response to your conduct. In any event, while it may not be a regulatory requirement to comply with any FAA written guidance, you can certainly expect any such guidance to be used in a FAA enforcement case. And, you can expect that the NTSB will be bound to defer to the FAA's interpretation of your conduct as a violation of the FAR, unless you are prepared to show the FAA's interpretation to be arbitrary, capricious, or illegal.

Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's Legal Services Plan. She is an instrument-rated private pilot.