Say Again #51

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Paul Lynch wrote:

Don't forget, the AIM is not regulatory. It is an informational source.
You can't violate it. You can violate 91.185.

That isn't quite correct. Some of the information in the AIM is
informational.
But, some of it is directive and expands upon regulatory requirements.
There
have been many enforcement actions under FAR 91.13 for failure to adhere
to
directive language in the AIM.

The introduction to the AIM reads:

"This manual is designed to provide the aviation community with basic
flight
information and ATC procedures for use in the National Airspace System
(NAS) of
the United States. An international version called the Aeronautical
Information
Publication contains parallel information, as well as specific information
on
the international airports for use by the international community.

This manual contains the fundamentals required in order to fly in the
United
States NAS. It also contains items of interest to pilots concerning health
and
medical facts, factors affecting flight safety, a pilot/controller
glossary of
terms used in the ATC System, and information on safety, accident, and
hazard
reporting."

Note the second paragraph about "required fundamentals" and also "items of
interest."

An example is the additional reporting requirements listed in the AIM:

"5-3-3. Additional Reports
a. The following reports should be made to ATC or FSS facilities without a
specific ATC request:
1. At all times.
(a) When vacating any previously assigned altitude or flight level for a
newly
assigned altitude or flight level.
(b) When an altitude change will be made if operating on a clearance
specifying
VFR-on-top.
(c) When unable to climb/descend at a rate of a least 500 feet per minute.
(d) When approach has been missed. (Request clearance for specific action;
i.e.,
to alternative airport, another approach, etc.)
(e) Change in the average true airspeed (at cruising altitude) when it
varies by
5 percent or 10 knots (whichever is greater) from that filed in the flight
plan.
(f) The time and altitude or flight level upon reaching a holding fix or
point
to which cleared.
(g) When leaving any assigned holding fix or point."

Failure to make one of those reports has resulted in enforcement
proceedings
under 91.13 and 91.183 (c) many times over the years. The fact that 5-3-3
a
says "should" is only because the FAA legal folks have consistently held
that
use of the word "shall" for such passages in the AIM would constitute
rule-making, per se. Then, they would have to run every change to the AIM
through the complete NPRM process. No country does that under the ICAO
rules
for its AIP (which the AIM is a domestic version of the United State's
AIP.

"Should" works with the effect of regulation when coupled (in this case)
with
91.183 (c), which is in accordance with ICAO international conventions.

Wow, Tim, you're going to open a huge can of worms with that!! LOL. About 2
to 3 years ago I wrote practically the same thing regarding 5-3-3 and got in
a big thread with the inhabitants here, especially Newps, about it. The
thread began with whether you should make a report when vacating a
previously assigned altitude or flight level. The controllers and many
other pilots contended, this from memory, that it wasn't required and
garbaged up the freq. I cited 5-3-3, the "should" and "at all times"
language, and rec'd a barrage of return fire. In particular, when I played
devils advocate and told Newps and the other naysayers I must not be
required then to make any of the other reports therein, since I didn't have
to make 5-3-3, 1, (a), and could apply their logic to the rest of the para,
I was castigated for trolling, IIRC, LOL. I stopped, but about 3 months
later rec'd an email from Don Brown, who had read the thread. He agreed
with my position and the others in the thread who read 5-3-3 as I did.

My point in that thread, and this, is to wonder why any pilot would stake
his ticket, his life, or others lives on the opinions of controllers or
anyone else who advocated not adhering to procedure for convenience sake.
Jose, above, said he'd stake his ticket on it. I don't know him, am sure
he's an upstanding citizen etc., but think that's a very foolhardy and
dangerous attitude/opinion. I wonder about a pilot who is skilled enough to
fly IMC in the NAS yet considers the loss of a radio an emergency (assuming
of course that nothing else is wrong). The aircraft is still flying,
there's procedure to keep him and all around him safe, and he doesn't have
the distraction of someone talking in his ear telling him what to do. I
just don't see that angle as being justification to make up your own game
plan, in IMC, and hope that someone on the ground is going to defend you
when theres an inquiry. If I was doing the investigation, I'd have to ask
the guy why he thought he was in an emergency situation and the answer had
better contain more failures than just a radio.

Anyway, in a time far far away, that's what they taught me at the SAC
Instrument Flight Course, to say nothing of UPT and the annual required
instrument refresher courses we had to endure in the USAF.

Jim