What constitutes an instrument approach

[avbug]

Yeah, but without any case law all we really have in this opinion is a vignette of what the FAA will likely attempt to argue in any case that comes before them.

That's very true. However, very seldom will the ALJ attempt to work contrary to a legal interpretation, particularly one that merely defines the regulation. The most an airman could hope to argue is that he "thought" he had complied with the regulation and that he had gotten enough proficiency from the approaches he did, but he would need a very compelling reason to have not complied with the regulation and the interpretation thereof.

The legal interpretation carries far more weight than an opinion, even though it may say "we believe." It is the Administrator that prescribes the regulation, and it is the administrator that both interprets and enforces the regulation. It is the airman that is guilty until proven innocent. The airman cannot argue that the regulation is not fair, but only that he or she is not guilty of inconsistency with the regulation. Further, case law, such as it is in administrative law, is far less "binding" and influential than in civil or criminal court.

 

[DC8 Flyer]

Aahhh, no.

We've been through this a few times already, let's try it again.

The legal interpretation gives two provisions. One is that the approach must be conducted in instrument conditions. Not part of it, not a little bit of it, but the proceedure must be conducted in instrument conditions. The issue of "IMC" is irrelevant, as the instrument conditions may be actual, or simulated.

Here is where you, I and the legal council disagree. An IAP is defined from the IAF to the MAP. I can find no where that allows or defines vectors as a "whole" procedure, in essence vectors are a "short cut". Since the legal council has taken great pains to define exactly what must be done to log an approach for currency, ie ENTIRE PROCEDURE, in either IMC or foggled, to minimums you have to, by extension, ASSuME the legal council meant and wants you the pilot to fly all approaches for currency as full procedures.

We, as the flying public, do not have the luxury of inserting our own beliefs and procedures into this "opinion" so we must read it literally and take no creative license to it. The council states the "instrumet approach procedure", which is IAF to MAP, must be flown down to minimums.

Whats my point? That this legal opinion is just that, an opinion. Until someone is brought before an ALJ and this opinion is upheld IN ALL OF ITS CONTEXT, it is simply a guide. Does that mean I am free to do what I want to maintain currency, nope not at all, it means I better go and do 6 full procedure or 6 vector only, or a combination there of, approaches to be current, as the opinion states. Is there anyway to show that I did the approaches full or vectored? I don't know, the FAA would have to be fairly bored to go through all those tapes to find out?

 

[avbug]

An IAP is not necessarily IAF to MAP; many approaches don't have an IAF. They may rely on vectors, or be transitions from the enroute structure. Approaches which include part of the enroute structure may have no initial segment, and become either vector approaches or mere transitions from the enroute structure.

The ILS when vectored isn't a short-cut proceedure. It's for this reason that the GSIA is the published FAF on the ILS, but the FAF becomes the point of intercept when vectored to intercept lower and closer...it's still the proceedure, w(h)eather one flies straight in, flies to a published IAF, obtains radar vectors to the final approach course (or any intermediate segment), has radar guidance, or utilizes any other approved means of accomplishing the approach.

Further, the chief legal counsel doesn't dictate how the approach must be started (ie from a feeder fix to an IAF, by radar vectors, from an enroute transition, etc), but does stipulate how far is must go to be counted.

 

[heph224]

An IAP is not necessarily IAF to MAP; many approaches don't have an IAF. They may rely on vectors, or be transitions from the enroute structure. Approaches which include part of the enroute structure may have no initial segment, and become either vector approaches or mere transitions from the enroute structure.

The ILS when vectored isn't a short-cut proceedure. It's for this reason that the GSIA is the published FAF on the ILS, but the FAF becomes the point of intercept when vectored to intercept lower and closer...it's still the proceedure, w(h)eather one flies straight in, flies to a published IAF, obtains radar vectors to the final approach course (or any intermediate segment), has radar guidance, or utilizes any other approved means of accomplishing the approach.

Further, the chief legal counsel doesn't dictate how the approach must be started (ie from a feeder fix to an IAF, by radar vectors, from an enroute transition, etc), but does stipulate how far is must go to be counted.

IAP is not necessarily IAF to MAP; many approaches don't have an IAF

True, there are a lot of Radar Approaches that don't have an IAF and you bring up a good point and its a good thing we have forums like this to discuss these senarios and express our opinions. Like I said before, I always assumed that once your past the IAF or accept a vector for an approach and you encounter IMC you can log the approach since techinically you were relying on your instruments to navigate for part of that approach. I guess that some of the approaches that I have done and logged over the years are either legal or not.

 

[Dumbledore]

The airman cannot argue that the regulation is not fair, but only that he or she is not guilty of inconsistency with the regulation.

I don't agree here. The airman could argue that the interpretation that the FAA cites in its case makes it impossible to comply with the intent of the regulation - to spell out a way for a pilot to maintain recency of (instrument) experience requirements.

In other words, the regulation isn't fair.

And besides, there is a HUUUUUGE hole in the interpretation per se: they specifically exempt situations where safety is at stake from the broader core of their thoughts on the matter.

Further, case law, such as it is in administrative law, is far less "binding" and influential than in civil or criminal court.

Again, I have to disagree. The case law sets the precedent. The FAA relies upon it in making their case and the respondent may rely on it to defend himself. In the 1987 Brasher case, for example, the FAA's policy of ATC specialists notifying pilots of potential deviations was at issue. The respondent had been accused of a deviation that he claimed he had not been informed of as the controllers’ handbook required.

The ALJ sided with the pilot in the regard that since he had not been given notice that a violation was impending he never had the chance to file a NASA report to protect his license. The result was that although the ALJ sided with the FAA in determining that a deviation had indeed occurred, he also vacated the sanction saying that the FAA had disregarded its own policy as set forth in the 7110.65 current at the time.

So, though rare, precedents ARE indeed brought forth by respondents. My personal feeling is that if there’s an argument to be made one should make it. You really never know how successful you’ll be until you try.

Of course a good lawyer – preferably one who worked at the FAA before entering private practice – never hurts either.

 

[avbug]

In other words, the regulation isn't fair.

That's really the point. The airman doesn't have the option of arguing w(h)eather the regulation is fair. The ALJ isn't there to consider weather the regulation is proper. The airman may only try to prove that he or she was in compliance, and the ALJ is there to determine weather it is so.

 

[Rattler71]

Ummm... that's essentially what I said. Your petulance and pedantic attitude is not very comely, avbug.

A fed, a fed lawyer, an attorney, if you must - whatever.

You remind me of the class snitch/bully who really got off on making sure everyone else knew the rules. Your knee-jerk need to have the last and "most correct" work speaks volumes about your raging insecurities. And, to humor those insecurities, I will politely let you have the last word, since you crave it so.

Grow up.

hehe right on

 

[Hipster Loser]

look, just put the foogles on every 6 months and shoot the approaches down to minimums and you'll be safe. its as simple as that guys and gals.

when ive practiced my approaches i always ask for the full approach if possible. i get more practice that way.

 

[nosehair]

OK, here's the deal. The purpose of the rule is to stay proficient on instrument approaches. Just like landings. You stay proficient on landings by flying a final approach through the complete touchdown. Don't you? Do you practice a landing to stay proficient by flying a final to 100' then going around? How is that making your landings proficient?

You fly the instrument approach to minimums with the hood on or in IMC to stay proficient. Period. It doen't make a rat's behind about all this legal argument, except for the fight of legal arguing - that is all that's going on here.

Those of you that argue that a partial approach counts just don't want to put the hood on. Or you think you're so good you don't have to. Maybe you are.

 

[Dumbledore]

Those of you that argue that a partial approach counts just don't want to put the hood on. Or you think you're so good you don't have to. Maybe you are.

Now that's not fair at all! You're assuming that it's as simple as going out in 172 or a Cherokee and just getting the approaches out of the way. For some of us that's not how it goes. While I will grant you that many folks flying part 91 corporate ships are kept proficient through some sort of recurrent training or by 135 checks because the aircraft is dual-use, I'm here to tell you that not all are.

The fact is that you don't just go out and goof around for a couple of hours in a Hawker 800 or a G-IV to practice approaches, and going out in a 172 is hardly applicable to the business of flying one of those machines, although LEGALLY it counts. There are angles here that you've not considered.

As I said before, a good many pilots know when they’re proficient. For the rest there’s a floor of recent experience that is mandated.

 

[midlifeflyer]

The purpose of the rule is to stay proficient on instrument approaches.

I'm sorry, but where did you get that idea? Even if you agree on the "all them way to minimums" interpretation, think about how little is required to meet it. Six familiar autopilot-coupled approaches to the home base spaced a month apart in severe clear and calm conditions with foggles and a safety pilot.

Wow! That's what I call "proficiency!"

Sounds to me more like bare legal currency - which to me has always meant nothing more than that the pilot has the right to decide for himself whether or not he's proficient. I can't think of a self-administered currency requirement that doesn't fit that description.

Sorry, in real instrument conditions, I'd rather be with the guy who flies in IMC all the time and regularly shoots approaches to 200-300' above minimums, even if, according to some, he's not really "current".

 

[avbug]

Well, that's really the crunch with all the regulation isn't it? Three landings in 90 days is enough? I don't believe that. Six hours in six months per the old rule was enough? Not really, and then they dropped the rule. Don't even get me started on this whole cockeyed sport pilot garbage...the requirements were insufficient for the private pilot level to begin with, then they created the idiotic recreational pilot certificate, and not satisfied with that, under pressure to the alphabet galleries, they watered down the standards and requirements even more and now we have...sport pilots.

The regulations set a legal minimum. Some of the requirements are well founded...written in "blood" as they say. Others set what might almost be an arbitrary middle ground standard.

Never the less...the regulation is what is is, and we needn't like it, only comply with it.

Of course, there is regulation preventing performing to a higher standard...

 

[DC8 Flyer]

I think that is the problem everyone is having with this "opinion". It does nothing to foster a culture, it is simpley a "check the box" opinion that I feel if tested would not stand up in front of an ALJ. Not that I or anyone is going to go push it, but somewhere, someday, someone will be called to the carpet for doing 15 approaches in 6 months, but only 4 of those went to minimums and voila, vio lat ion!

This is probably the most important pilot "skill" reg there is, and to have someone that obviousely has little or no real world IFR expereince, or if he does is just completely clue les, does nothing for the rule.

After talking to some lawyer friends about this they reminded me of one important fact, lawyers do not make or enforce laws, the courts and appointed bodies do. So while this "opinion" may be out there, until it is upheld it is simpley a guide, a poorly written guide.

 

[avbug]

After talking to some lawyer friends about this they reminded me of one important fact, lawyers do not make or enforce laws, the courts and appointed bodies do. So while this "opinion" may be out there, until it is upheld it is simpley a guide, a poorly written guide.

In civil and criminal law, that's true. Administrative law is another ball of wax. In this case, it isn't one lawyer's opinion. It is the opinion of the FAA Administrator...the person that writes and enforces the law.

The closest example that could be had would be a dictator that writes the law, interprets the law, and then administers punishment when the dictator *thinks* someone has broken the law. That's the FAA Administrator. Under the regulation, you're guilty until proven innocent, anything you say will be used against you, you have no miranda rights, and you don't have the option to defend yourself against a judgement...only to appeal it once it's rendered.

The ALJ acts as an independent court in which the enforcement action of the FAA may be overturned. But the ALJ doesn't have the option of chaning the regulation, only in determining if you were in compliance with it. Likewise, the ALJ doesn't have the discretion to decide if the regulation is "fair," only to decide if you were in compliance with it.

When considering the regulation and weather you were in compliance, the ALJ will consider any interpretations or explainations of the regulation...in particular those made by the person who writes and prescribes the regulation. For purposes of weight, the legal interpretation is nothing more than an extention of the regulation in which the Administrator has further clarified what it means, and what's required to comply with it.

The Administrator not only writes and provides the regulation, but has the right ot determine what it means at any time...including in the middle of enforcement action (as is often done). That the mouthpiece for the Administrator uses the phraseology "in our opinion," should not be taken lightly...it's far more than just an opinion.

When you go before an ALJ to determine compliance with the regulation, you're not there as a test to see if the regulation is "okay." You're there to see if you complied with the letter of the regulation. Where interpretations of the regulation have been provided by the chief legal counsel, representing the Administrator, you're also there to see if you've complied with the interpretations, as they represent the official explaination of the meaning, intent, or application of the regulation.

 

[DC8 Flyer]

Learn something new every day! I was under the impression the Administrator simpley "administered" the FAA while the Regs, (CFR part 14) was written and enforced by the federal government. Thanks for clearing that up, and thanks for the info!

You know, instead of pretending I know it all, I dug around and found this

http://www.access.gpo.gov/nara/cfr/waisidx_05/14cfr13_05.html

interesting read if you are really bored.

 

[avbug]

Thanks, but I've got it all on disc...same disc the FAA uses, actually. And when I'm bored, I do sit and read it. Not for fun; I've been through the enforcement process twice. I cleared myself twice. I couldn't afford an attorney, and someone once told me that the best way to beat a red tape dealer is to know the tape better than he does.

The Administrator is the federal government. Everything the FAA does, it does on behalf of the Administrator. The Federal Aviation Administration is the Administration of the Administrator...this is why everything in all regulation comes back to "acceptable to the Administrator." Does the FAA Administrator personally write the regulation? No. But any employee of the FAA who writes the regulation has written it on behalf of the Administrator, and therefore, it's been written, provided, interpreted, and will be enforced by the Administrator.

The Administrator has this duty by nothing less than an Act of Congress, the Federal Aviation Act of 1958, as ammended.

 

[JAFI]

The Administrator has this duty by nothing less than an Act of Congress, the Federal Aviation Act of 1958, as ammended.

Actually, The Act of 1958 was codified into the Code of Federal Regulations (CFR) in 1998 as I recall. The Act of 1958 is no longer.

Normally a HQ person, or a group of people (sometimes industry people are involved) write a proposed regulation, it is sent to the FAA legal department for review, then sent out for public review as NPRM (Notice of Proposed Rule Making) then approved by the Administrator. (See CFR 11 for the process). How much the Congress get involved depends upon how much they want to get involved.... Remember EVERYTHING inside the beltway is political.



There is much more involved than just the Administrator making rules. With a rule that everyone agrees on (all the alphabet groups, congress, etc.), and with lightning speed, a CFR change can take two years. With any or all the groups in disagreement a rule may not pass the process ever or take many years to complete. This process was set up and approved by our elected representatives in DC. Your tax dollars at work.....


JAFI

 

[avbug]

Understood...my point was that the Administrator represents the final authority in the administration, which is not a democracy...who physically writes the regulation is irrelevant, as all regulation is written for and on behalf of the Administrator. Therein is the rub...weather the mouthpiece for the Administrator speaks, or the Administrator himself or herself speaks...it's the same.

 

[A Squared]

There is much more involved than just the Administrator making rules. With a rule that everyone agrees on (all the alphabet groups, congress, etc.), and with lightning speed, a CFR change can take two years. With any or all the groups in disagreement a rule may not pass the process ever or take many years to complete.

there's some truth to that, however do you recall the change which requried photo ids? No public input, no review, it was just handed down, effective immediately.

 

[bluelake]

So I have a question for all you guys who think avbug is BSing here.

Please try to be honest both intellectually and in terms of veracity. Have any of you ever actually known or talked to a member firefighting aircraft's crew? Have you ever taken the time to understand the TRULY unique challenges of that kind of flying?

These are simple questions that require only yes or no answers without embellishment or editorial comment.

So, what say you?

Well,
I am completing my first season flying CWN Air Attack. I can say that when a fire is creating a lot of its own convection and lifting, it's easy to hit stuff in the air that you would not expect to be there. I have not hit tree branches or such, but I have cleaned pine needles and twigs out of the engine air filter. and, I have returned to the hotel after a day of air attack and when I take a shower, my hair smells like I have been sitting next to a campfire.

I am an infrequent poster to this board. When I first got this fire fighting job in the spring, I think I exchanged a few pm's with AvBug about the job, and thanked him for his input. Then, I made a post about Aero Union or something like that (after a P3 fatal) where I guess I did not know what I was talking about and he put me in my place. Maybe even he was right, but it was a turn-off never-the-less. So, I did not post any further about this experience. If anyone wants to communicate with a pilot who has done one season as contract air attack pilot, PM me. Yeah, thats right... 1 season. I aint AvBug GOD, but I saw lots of relevant work in that industry. And, I will tell you my whole name, who I worked for, fires I was on... etc.. no BS! I have no interest in the industry long term. so no worries from me embelloshing or editorializing! I would post my experiences here, but I really am not interested in a lot of the crap that occurs on this forum, and this thread in perticular embodies it.

DeanR