Parsing the Intent of FARs

FAA Order 1000.36 states in part, “Over the years, our writing has become dense and needlessly complex, laden with technical terms and abbreviations that make it time-consuming and difficult for our readers to understand.” It goes on to state that existing text may remain as-is, but new text and substantial edits of existing text should follow the tenets of clear communication, if applicable, in the author's judgment.

It’s time to celebrate. We can expect new FARs that are clear, concise, and require no interpretation.

Except that the FAA issued Order 1000.36 in 2003 — and after 21 years, we’re still scratching our heads over a few FARs.

To help understand some of the more complicated and cross-referencing regulations, we need to do a few things. First, let’s look at the plain-language definitions of some of the FAA’s favorite words.

• SHALL and MUST - you are required to do a thing
• SHALL NOT and MUST NOT - you are required to not do a thing
• MAY - you can elect to do a thing if you so choose
• NEED NOT - you can elect to not do a thing if you so choose
• MAY NOT - you are required to not do a thing
• SHOULD - it’s advisable, but there is no requirement to do a thing
• SHOULD NOT - undetermined; only used once in 14 CFR Part 121
• SHALL NOT - you are required to not do a thing
• EXCEPT - whatever is being talked about doesn’t apply to the following things
• UNLESS - whatever is being talked about doesn’t apply to some things but does apply if one or more conditions are met
• INCLUDES - includes but is not limited to

That all seems pretty cut and dried at first glance, and it is, for the most part.

Notice that words like “shall” and “shall not” are perfectly opposite. Either you shall do something to avoid being in violation, or you shall not do something or you’ll be in violation.

However, “may” and “may not” require closer attention. You may do a specified thing if you wish, but it’s up to you and won’t result in a violation either way. But "may not" is a black-and-white requirement to avoid doing something or you’ll be in violation.

These definitions give us the tools to parse the analytical language used in 14 CFR. However, it requires more than a clear definition of a few words to interpret correctly some of the more convoluted regulations. Here’s a great example.

FAR 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." Let’s parse this until we fully understand it.

It starts with, “No person may…” Looking at our definitions, we read this to mean that no person, pilot or not, can elect to operate an aircraft without care (careless), or without reck (which, oddly, also means care according to the Merriam-Webster Dictionary) so as to put someone else’s life or property in danger.

The FAA is nitpicky, so we should be too. No person, anywhere on the planet, whether they’re a certificated pilot or not, can decide to operate an aircraft, as defined by the FAA to include airplanes, rotor-wing aircraft, balloons, and so on while abandoning care and “reck” such that it risks killing someone other than yourself or negatively impacting the condition of the property of someone other than yourself, or the person who perpetrated the dastardly act will be in violation.

Meanwhile, back in reality, we can surmise what 91.13(a) really means.

Let's say a well-seasoned aerobatics pilot loses control of a Yak-55 while performing a loop practicing for an airshow and crashes into an empty parked car.  No one dies, but the car and plane are destroyed. While some violations may arise, the FAA probably will not charge the pilot with violating 91.13(a).

Now let's say a low-time private pilot with no aerobatics training misjudges their altitude while performing a loop in a rented Cessna 152 and just clips a barbed wire fence post with the side of a landing gear. The fence post has a small mark on its side, and the left wheel pant is shattered, but that’s the only damage. There was no loss of life or injuries, although his significant other, whom he was trying to impress, was terrified. A few weeks later, the pilot is charged with violating 91.13(a).

Superficially, the “airshow practice” crash appears much worse, given it destroyed someone else’s entire car and the airplane. But after an investigation, the NTSB finds that the pilot just plain old misjudged his loop this one time. Maybe he hangs up his goggles or gets some more training before going up again, but no one thinks he was being careless. The 152 pilot, however, got a second look by the authorities and needed an attorney.

Were the outcomes of these two occurrences different? You bet. The seasoned pro destroyed some expensive hardware, and the Cessna driver broke 500 bucks worth of fiberglass. But, the intent of 91.13(a) lies underneath its legalese. Essentially, it says, “Don’t do anything you know is dumb, or we'll nail you if you survive whatever hare-brained thing you decide to do, be it a willful act or negligence.”

So, if you see a regulation you’re not certain about, make sure you know how the FAA defines the lingo (most of which is in CFR 14, Part 1), and then take a step back and look at the big picture. What is the regulation trying to accomplish?

• Sometimes, it is straightforward. 91.131 (a)(1) says you can’t enter Class Bravo until ATC explicitly permits you. Easy.
• In contrast, a reg like 91.13(a) implies its intent — don’t do dumb stuff.

If, after reflection, you’re still in doubt about a regulation, contact organizations like AOPA that can help explain it. Also, there are CFIs everywhere who are happy to help clarify fuzzy rules.

Regardless of how you find clarity, be sure you do so for the sake of 91.3(a), the granddaddy of all FARs. “The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.”

Know Before You Go