Legal Briefing

The standard works both ways

Legally, this kind of FAA guidance is not subject to the rulemaking process, which includes a notice to the public that provides the opportunity for comment, legal publication of the rule, and a published preamble that could provide understanding of why and how the rule is to be applied. Therefore, such guidance is not regulatory and, by itself, you cannot be strictly held to a standard of conduct embodied in such guidance. Still, we concluded that it might still be in your best interest to know of applicable guidance, because the FAA may try to use that information to hold you responsible for compliance with a rule that does exist.

Well, it seems that what is good for the goose must also be good for the gander. That is, just as the FAA may hold up guidance as something that you should have been following, the FAA is not free to disregard such guidance when trying to hold an airman responsible for a violation of the federal aviation regulations. An enforcement case that was decided by the National Transportation Safety Board specifically finds that the FAA is bound to consider its own guidance before holding an airman to a standard of conduct that may differ from that guidance.

In the case, the FAA charged a pilot with operating an unairworthy aircraft in violation of FAR 91.7(a) ("No person may operate a civil aircraft unless it is in an airworthy condition") and 91.13(a) ("No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another") and ordered the individual to surrender his pilot certificate for a 30-day suspension. One of the airworthiness discrepancies that the FAA identified was an allegation that the nosewheel showed signs of dry rot. However, "dry rot" is not defined by the regulations. There is an FAA advisory circular that identifies specific criteria under which a tire must be removed from service, and both the FAA and the pilot recognized the AC's applicability in this case. The AC does not use the term dry rot, but it describes the extent to which cuts, cracks, snags, and bulges in a tire would require its removal.

The FAA's evidence about the condition of the tire and the opinion that it rendered the aircraft unsafe came from a single FAA inspector. According to the NTSB's review of the record, the inspector testified that he observed cracks in the grooves of the tire that extended all the way around it, and that he personally opined, based on his inspection of the tire, that such condition required its replacement. The basis of the inspector's opinion is not evident from the NTSB's decision, and indeed, the NTSB was uncertain as to why the inspector believed that the tire needed to be replaced. We do know, however, that the inspector did not describe or evaluate the nature of the cracking that he observed on the tire under the criteria contained in the advisory circular.

Because of this, then, the NTSB said: "We hold, nevertheless, that the inspector's personal opinion cannot fairly be the basis for a violation finding when an airman's conduct comports with the Administrator's own written advice on how to judge the continued serviceability of a tire.

"We do not agree with [the FAA attorney's] suggestion that the inspector's assessment that the tire exhibited 'severe' dry rot must be deemed a sufficient basis to conclude that it had to be replaced, as a matter of airworthiness, even if replacement would not be required under the terms of the circular. While the circular may be 'advisory,' it purports to inform the industry of practices that are acceptable to the Administrator. Pilots and mechanics should not be subject to enforcement action because their paths cross with an inspector who does not find the Administrator's published advice to be controlling."

The NTSB dismissed the FAA's allegations against the pilot as unproven.

So, while FAA guidance is not regulatory, it does exist to assist airmen and FAA personnel by providing more information, and often in simpler language, in knowing how to act safely and efficiently within our aviation system. And, it seems that such guidance may also be used in evaluating an airman's conduct under the regulations.

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.