logging instrument approach question

[bobbysamd]

FAA FAQ and crap v. the ALJ

[H]ere's the real answer direct from the FAA's office of chief counsel:
For currency purposes, an instrument approach under Section 61.57(e)(1)(i) may be flown in either actual or simulated IFR conditions.

Well, duh . . .

Further, unless the instrument approach procedure must be abandoned for safety reasons, we believe the pilot must follow the instrument approach procedure to minimum descent altitude or decision height.

(emphasis added)

That part is crap. What if I commence an ILS in IMC and break out at 500' AGL? I don't get to count the approach?? Baloney!

Even though it might be the FAA's assistant general counsel who writes these FAQs, you cannot rely upon them as black-letter law. Same with John Lynch, to whom Midlifeflyer refers above. If you were to go before an ALJ, the facts of your situation would be evaluated against the reg, and the ALJ will interpret the law for your situation on the spot. The ALJ's interpretation for you could be completely different than an identical set of facts for a different situation and pilot. Situations are intepreted on a case-by-case basis. Bottom line: Take the regs at their plain meaning, don't look for loopholes, don't read into them, and do what they tell you to do.

 

[A Squared]

>>>>Even though it might be the FAA's assistant general counsel who writes these FAQs, you cannot rely upon them as black-letter law. Same with John Lynch, to whom Midlifeflyer refers above.

Bobby, there’s a very important distinction between the Office of Chief Counsel and John Lynch. John Lynch’s opinions have no legal standing, the opinions issued through the Office of Chief Counsel are the interpretations which will be used for enforcement purposes. You are apparently not aware that the NTSB ALJ’s and the NTSB board has a statutory obligation to defer to the FAA’s "validly adopted interpretation of its regulations" This obligation is referenced in numerous NTSB orders. An interpretation issued by the Office of Chief Counsel is a "validly adopted interpretation of its regulations" and yes, it does become something very close to black letter law. In order to challenge an interpretation from the office of chief counsel. You must be able to move beyond the NTSB court system to a real court. Even if you are able to do that the Federal court system is extremely reluctant to rule against an FAA interpretation. I’m assuming that you are attempting to apply your understanding of real courts to the NTSB court. The NTSB judge is statutorily enjoined from interpreting the law counter to an FAA Counsel interpretation. The role of the NTSB ALJ is limited to reviewing factual and procedural aspects. Recently the NTSB opined that an FAA interpretation was not a "validly adopted interpretation of its regulations" because there was no written record of it, and the interpretation was made by an FAA prosecutor in the course of an enforcement proceeding. The FAA appealed to the DC court of appeals and the Court essentially ruled that *any* interpretation made by FAA legal counsel is a "validly adopted interpretation of its regulations" (FAA vs. NTSB No. 98-1365 ) Do not underestimate the vast legal power of the FAA and do not overestimate the very limited power of the NTSB.

>>>>If you were to go before an ALJ, the facts of your situation would be evaluated against the reg, and the ALJ will interpret the law for your situation on the spot. The ALJ's interpretation for you could be completely different than an identical set of facts for a different situation and pilot.

Again, not true, the FAA chief counsel interprets the law, and the NTSB is bound to that interpretation. If you read NTSB orders, (and I’ve read a bunch of them) you will see repeated reference to the NTSB’s inability to interpret a regulation differently that FAA’s Legal Counsel.


>>>>>>(emphasis added) That part is crap. What if I commence an ILS in IMC and break out at 500' AGL? I don't get to count the approach?? Baloney!

I will concede that the interpretation is not terribly clear. It says that the approach must be "flown in either actual or simulated IFR conditions" and it says that except for safety considerations it must be flown to the minimum altitude. So does that mean that it must be flown in IMC to Minimums? Certainly there are 2 different ways of looking at that. It seems that this interpretation could use a little interpretation. However, it would be a mistake to ignore this interpretation, because you believe that an interpretation by the assistant chief counsel is invalid. This interpretation, as any other from the office of chief counsel is about as close as you can come to being black letter law, without actually being black letter law. In order to prevail over the FAA’s interpretation, you would have to go way, way up in the federal court system, I don’t know how far. It is significant that the DC federal court of appeals has already refused to question an FAA legal interpretation or allow the NTSB to question it.

added later: The requirement for the NTSB to defer to a "validly adopted interpretation" comes from the FAA Civil Penalty Administrative Assessment Act of 1992, P.L. No. 102-345.

It would be difficult to argue that an interpreation authored and published by the Office of Chief Counsel is not a "validly adopted interpretation"

 

[midlifeflyer]

So why the hell are you dreaming up you're own crap? It's talking about shooting the approach down to minimums, not the weather "idiot". If the weather is IMC, that doesn't mean it has to be "at" minimums. If it did, no one would be able to maintain their currency. Last time I checked, IMC was below 1000/3.

I'm a veteran of a couple of "how much IMC before it counts" wars. I hadn't heard this take on it before. Although, like most of the "answers", it has it faults, I like it.

 

[midlifeflyer]

Uh oh. When I posted that last message, I didn't realize that another "how much is enough" war has started. For those interested in the controversy, here's a summary of the three primary positions and the support for them (no, I'm not typing this now; it's a cut and paste from my personal FAQ)

==================
If you look at 61.57(c) (instrument currency) you'll see that the 6 instrument approaches that have to have been done in the prior 6 months must be "performed and logged under actual or simulated instrument conditions..." Some of the other requirements have changed through the years, but this one has been with us for a while.

Sounds pretty simple, doesn't it? Except some idiot thought to ask, "How much actual is actual?" What if you pass through a single scattered cloud on the way down for a total of 5 seconds of "actual"? Can you count the approach?

Sometime in 1989 or 1990, it seems FAAviation News ran an article that said that you had to fly the approach to minimums in IMC in order for it to count. Someone wrote in pointing out the illogic of a rule that meant that a very experienced pilot who flew hard IMC all the time would probably not be able to log the approaches, since most approaches don't involve breaking out at minimums.

In the July/August 1990 issue, FAAviation News replied to the writer:

"Once you have been cleared for and have initiated an approach in IMC, you may log that approach for instrument currency, regardless of the altitude at which you break out of the clouds"

Problem is that this answer doesn't work either. Now, you're on a feeder route to the IAF above the cloud deck when you're cleared for the approach. You fly the full approach, enter the clouds just above glideslope intercept and break out at 200 AGL with 1/4 mile visibility. Oops! Sorry! You were not "cleared for and have initiated an approach in IMC".

(You're starting to see why I called the person who asked the "How much" question for the first time an idiot.)

In 1992, the FAA legal counsel chimed in:

"Second, you questioned how low a pilot must descend (i.e., minimum descent altitude or decision height or full stop landing) on the six instrument approaches he must log to meet the recent IFR experience requirements specified in FAR Section 61.57(e)(1)(i) (14 CFR Sec. 61.57 (e)(1)(i)). You also asked if an instrument approach "counts" if only part of the approach is conducted in actual IFR conditions. Section 61.57(e)(1)(i) states that:

No pilot may act as pilot in command under IFR, nor in weather conditions less than the minimums prescribed for VFR, unless he has, within the past 6 calendar months - (i) In the case of an aircraft other than a glider, logged at least 6 hours of instrument time under actual or simulated IFR conditions, at least 3 of which were in flight in the category of aircraft involved, including at least six instrument approaches, or passed an instrument competency check in the category of aircraft involved.

For currency purposes, an instrument approach under Section 61.57(e) (1)(i) may be flown in either actual or simulated IFR conditions. Further, unless the instrument approach procedure must be abandoned for safety reasons, we believe the pilot must follow the instrument approach procedure to minimum descent altitude or decision height."

Uh-oh! If you take the opinion at faces value, there's that reasoning again that essentially says that if you don't go missed, you can't log it.

There is a strong school of thought out there that says that what it "looks like" the FAA Counsel said is not what they meant. Note that despite the question, although the answer says that you have to follow the procedure all the way (unless it's not safe), it does not say that you have to follow the procedure all the way "in actual IFR conditions."

(You can see where his is much better fodder for arguments than anything else in the logging arena.)

The camp that says that the legal counsel didn't mean all the way in IMC (call them the "Rule of Reason" school) are essentially saying that "How much" is one of those undefined terms. Not everything is susceptible to precise definition. Try to thing of all of the scenarios and come out with a rule that covers every probably (let alone possible) approach scenario. How many pages did you use?

When Part 61 was revised in 1997, there was a proposal to write the rule so that, in order to count, approaches had to be flown to MDA or DA to count. They got a lot of comments, including one that said,

"One commenter suggests revising the definition to permit the pilot to terminate the approach prior to DH or MDA for safety reasons. Another commenter proposes to define "instrument approach" as " * * * an approach procedure defined in part 97 and conducted in accordance with that procedure or as directed by ATC to a point beyond an initial approach fix defined for that procedure." The commenter explains that this definition would allow for logging instrument approaches that require some portion of the published approach procedure to be followed in order for the pilot to establish visual references to the runway"

The FAA decided against the new requirement.

Some point to the fact that the FAA posted this comment as support for the rule of reason approach.

Whew!

 

[bobbysamd]

So what IS black-letter law for the FAA?

An interpretation issued by the Office of Chief Counsel is a "validly adopted interpretation of its regulations" and yes, it does become something very close to black letter law. In order to challenge an interpretation from the office of chief counsel. You must be able to move beyond the NTSB court system to a real court.

So, is this something like an IRS Private-Letter ruling? Although you might have precedent on your side in an IRS matter, each case is decided on a case-by-case basis. Private-Letter rulings at least give you an idea where the wind is blowing, but are not authority.

Do the Office of Chief Counsel interpretations establish precedent? I realize that administrative law procedings operate differently than courts of law. Courts of law are bound to follow precedent. Having said that, ALJs can find that your set of facts are different than a similar set of facts. Although these interpretations may be persuasive, I don't think that I would rely on them 100% for rules interpretations.

And if I was in IMC, and the ATIS reported weather below VFI mins, that the ILS 35R approach is in use, and ATC was giving me vectors to the localizer or cleared me for the approach, I established myself on the approach and broke out in the clear at even 800' AGL with good vis, I would still count the approach for currency, despite the Chief Counsel's opinion that it must be flown to mins. After all, I needed the approach to let down to the airport. On the other hand, if the weather is CAVU but I decided the remain on the guages instead of taking a visual approach, I would not count it for currency.

 

[A Squared]

Mark,

Thanks for the history lesson. I agree that the strictest reading of the legal counsel is not a particularly reasonable one and probably serves no-one. I don't particularly favor that strictest reading, and I probably overstated the case when I first introduced it. Anyway, the point I was trying to make was that JungleJetFO's assertion that you may log approaches when not in IMC conditions and not simulating instrument conditions is absurd. I think that we all agree on that. (with the possible exception of JungleJetFO)


bobby,

>>>>So, is this something like an IRS Private-Letter ruling?

I don't know, I have no idea what an IRS private letter ruling is. I am not an attorney, merely someone who is interested in legal matters pertaining to aviation. That said, my understanding of the situation comes from reading a lot of NTSB orders. I know that it is very common for the board to refuse to examine an FAA legal interpretation. The statutory mandate to abide by the FAA's own interprtation of thier own regulations comes from the legislation I mentioned earlier. Prior to that act, that same requirement to abide by the FAA's interpretation was based on a precedent established in some court of appeal. If I recall correctly it involved OSHA, but was construed to apply to all federal administrative law courts. I could look up the case for you if you're interested, but it would be only of historical interest as that precedent has now been adopted into legislation.

On top of that, the recent DC court of appeals decision FAA vs. NTSB, sets an extrordinarily low standard for what is a "validly adopted interpretation"

My understanding, perhaps flawed, is that it is impossible to challenge within the NTSB court system, an interpretation issued by the office of Chief Counsel, and it seems (based on FAA vs. NTSB) that the first level of appeal within the federal court system also refuses to question the FAA's own interpretations.

As far as I understand the situation, if the Office of Chief Counsel issues an official interpretation of 61.3 which says that you have to carry a laminated photo of Elvis along with your pilot certificate, the NTSB has no recourse but to sustain your violation if you are caught without your Elvis photo in a ramp check.

I assume that somplece within our justice system, there is a court in which you could challenge an FAA legal Counsel interpretation which is not suppoerted in the regulations. I don't know where that court is.

regards

 

[JungleJetFO]

can you log an instrument approach if its VMC, single pilot IFR?...assuming you're IFR current and you just shot an ILS approach down to the DH (in an IFR flight plan and cleared for the approach) and full stop landing.

Since this is your thread and it should really be about answering your question, I will point out where I'm coming from, since you're probably a lot more confused now. Some on this thread have made asumptions that I was telling you that you could log VMC approaches for currency. Never wrote or said that anywhere. This thread is about logging VMC approaches. Very simply, making entries in your logbook to reflect what you flew. I assume you are well aware of currency issues and assume you know that you have to be in actual or simulated conditions to log an instrument approach for currency. We all know that as instrument rated pilots. If you did not, now you do and your question has probably been answered. But I am of a different mind then others on what you can put in or "log" in your logbook. My goal has always been to fly for hire . I do not believe there is any problem with you logging a VMC instrument approach. Your logbook is and should be a record of your aeronautical experience. Some will say that is falsification, but as long as you are not counting that approach toward currency, I do not believe it's a falsification issue.
So, I make the assumption that your real question is, what is a VMC instrument approach worth then? If it doesn't count for anything, then why put it in your logbook? I think it counts for a lot. Countless ways. One, it reflects your abilities and experience if you are flying complex instrument approaches, no matter what the weather. That goes a long way if you ever have a desire toward flying for a profession. Second, heaven forbid you get in a mishap, it will be proof of your abilities and professionalism as a pilot. Lastly, you never know what the FAA will write in the future or what companies will look or ask for when they want to hire a pilot. Let's say you start flying international with very difficult non-precision approaches in VMC. Where are you going to record that? Put it in your logbook.

 

[avbug]

I learned a lot sitting in the window aisle of a ticketed flight in a 737 two weeks ago. Can I log that, too? Uh-huh. That's what I thought.

Your logbook is a legal document, and a required document under 14 CFR 61. You should treat it as such, logging in strict accordance with 61.51, and appropriate interpretations thereof, and advisory circulars pertaining thereto.

As one who wants to be a professional pilot, it behooves you to log in a manner that is legal, and virtually universally accepted. Perhaps you have a column for low level that you log any time you're below the customary FL350...12,000 would be low level. Not a classification by the FAA, but then neither is logging of approaches not flown for currency. Also sort of a ridiculous classification.

Jim, that tactic might work if your opposing counsel were a 12 year old with a sheepskin from a box of crackerjacks. But as your opposing counsel is an attorney for the FAA, you'll find it is really a waste of time. Reference to ASquared comments above, he is dead on the money about the weight that the interpretation carries...and bear in mind that you're not burning new territory here. This interpretation will have the weight of 11 years caselaw behind it (it was issued in 1992). Therefore, you're not just going to combat the verbiage of the legal rendering, but also the decisions in every single case in which it has been used...each supporting it.

But if you have the money to throw away trying, go for it!

 

[bobbysamd]

bobby,

>>>>So, is this something like an IRS Private-Letter ruling?

I don't know, I have no idea what an IRS private letter ruling is

The following is a good definition of IRS Private Letter Rulings:

Private Letter Rulings ("PLRs"), Technical Advice Memoranda ("TAMs") and Field Service Advice Memoranda ("FSAs") are taxpayer-specific rulings furnished by the IRS National Office in response to requests made by taxpayers and/or Service officials.

It is important to note that, pursuant to 26 USC 6110(k)(3), such items cannot be used or cited as precedent.

(emphasis added)

Straight from the horse's mouth. Which would lead me to believe that FAA Chief Counsel Office opinions carry the same lack of authority. "Authority" meaning, in the legal sense, that these opinions are not binding precedent.

I (finally) would agree with Jim that the FAA Chief Counsel issued a flawed opinion. "Actual" or "simulated" instrument conditions are visual and/or meteorological phenomena.

I used to write in my logbooks every approach I shot or was a participant. Meaning, for the latter, that I wrote in my logbook my students' approaches. But I wrote them in, along with the type of flights they were, to have a record of all of the details of the flight. I did that to (1) to have a thorough record of the flight, (2) to have a complete record of my training activities and (3) to help a student reconstruct his/her logbook if it ever became lost. The approaches that I logged for currency, in simulated or actual instrument conditions, I listed in a separate column, even if it duplicated the "remarks" section of my logbook. For those reasons, I agree with Jungle Jet's rationale.

Finally, I believe that you can appeal an unfavorable NTSB ALJ decision to the Federal Court of Appeals and then to the Supreme Court.

 

[avbug]

You can do that, Bobby, but it's on your nickle, and it's a whole lot easier to go bankrupt. Yes, the legal interpretations aren't gospel, but they are accepted and given strong preferential weight, and are defensible in administrative court. Their weight is not the same in civil court, but you have to get there first, and this only on your effort and your nickle upon completion of an appeal to the full board. Most people are broke before that happens.

The FAA, on the other hand, can go as long as they like...it's just a paper shuffle, it's their own interpretation supporting their own viewpoint, and unlike civil law, you are guilty until proven innocent. The burden of proof is on you, and the FAA may use their own statements in support of their own charges. Get the case to civil court and you can do something, but it's a long road, and it's definitely not in your favor. Consider the Hoover case.