“The AIM is not Regulatory”
August 12, 2014 1 Comment
"The AIM is not regulatory" is an often-heard refrain among pilots and flight instructors. And technically, of course, that’s correct.
From the introduction to the Aeronautical Information Manual:
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.
However, when aviators say, “The AIM is not regulatory,” they generally seem to argue that the procedures and guidance in the AIM (and related FAA publications, such as advisory circulars), are suggestions that pilots, at their discretion, may adopt or ignore.
I’m certainly not an attorney. But I offer this background on the authority of the AIM from AOPA Flight Training. That Legal Briefing (written by an attorney) notes in part:
…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.
So, while it’s true that guidance in the AIM is, technically, just that–guidance–the information in the AIM, ACs, etc. isn’t just the FAA’s suggestions or a matter of procedure. If you choose to invent techniques for complying with the letter of the regulations, you may find the "AIM isn’t regulatory" a weak defense.