Under what authority can the AIM overrule the FARs?

Question

A commonly held belief among pilots is that the FARs are regulatory, while the AIM is not. Violation of a regulation in 14 CFR is punishable by the FAA, while the AIM contains mostly "good ideas" and violation of its precepts is only punishable to the extent that it rises to the level of FAR 91.13 (careless and reckless operation). The FARs must be published in the Federal Register and generally be subject to the rulemaking process, while the AIM can be updated by the FAA at any time, with no input from anyone outside the Administration.

With that background, consider a note in the AIM, at the end of section 5-4-5(l) about Fly Visual approach segments, on page 5-4-20 (page 346 of the current PDF version of the AIM):

NOTE−
The FAA Administrator retains the authority to approve instrument approach procedures where the pilot may not necessarily have one of the visual references specified in 14 CFR § 91.175 and related rules. It is not a function of procedure design to ensure compliance with § 91.175. The annotation “Fly Visual to Airport” provides relief from § 91.175 requirements that the pilot have distinctly visible and identifiable visual references prior to descent below MDA/DA.

This is, as far as I can tell, the only location where this exemption from FAR 91.175 is described. FAR 91.175 is quite specific in the elements needed before continuing beyond the DA/MDA, and does not stipulate that the Administrator has the authority to authorize exemptions. For an example of one that does, consider FAR 91.117(a):

Unless otherwise authorized by the Administrator, no person may operate an aircraft below 10,000 feet MSL at an indicated airspeed of more than 250 knots (288 m.p.h.).

What authority gives the AIM the ability to carve out an exception to the FARs? Are there other situations where the FARs are contradicted by a non-regulatory document without explicitly allowing exemptions or authorization by the Administrator?

Answer 1

The issue you have appears to be that the AIM describes a case where procedures don't follow a rule (91.175) and you don't see where the authorization comes from for that deviation.

What you're missing is that the approach procedures are in fact rules themselves. They just don't get published in Title 14 CFR. Standard instrument procedures are covered by Part 97, Subpart C. It essentially states that the procedures are controlled via the FAA Order 8260 series.

So if the approach procedure specifies minima or other procedures outside the norm of a separate rule, the procedure is the controlling rule.

Answer 2

The AIM cannot, and does not, overrule the FARs (14 CFR). The example highlighted in the question is not an example of the AIM contradicting 14 CFR; rather this is an example of the AIM reminding pilots that the FAA retains the right to authorize certain exemptions to 14 CFR, in this case as made explicit by 14 CFR 91.175. As mins' answer accurately affirmed, the AIM is—in fact—not regulatory.

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The clarification needed for this question, toward which Gerry directed our attention, is that authorized procedures are authorized under one of the subchapters of 14 CFR, Chapter I, not the AIM.

In 5-4-5(l), the AIM affirms that the FAA retains the authority to authorize exceptions to §91.175—as made explicit in the opening line of §91.175:

(a) Instrument approaches to civil airports. Unless otherwise authorized by the FAA, when it is necessary to use an instrument approach to a civil airport, each person operating an aircraft must use a standard instrument approach procedure prescribed in part 97 of this chapter for that airport.

One example of approved instrument approach procedures (IAPs) not prescribed in §97.20, are the IAPs authorized for specific Air Carriers. Many Air Carriers—companies with an Air Operator Certificate (AOC), such as a charter company operated under §135 or an airline operated under §121—can and do have their own IAP that the FAA has authorized. Such IAPs will be included as part of the Operation Specification of the company's operating certificate, and will thereby be authorized under §119.

The FAA has the authority to authorize any individual or company to perform any IAP. While I don't know of any specific examples of this, theoretically, this could take the form of a Letter of Authorization (LOA) allowing a Minnesota farmer to perform an IAP of his or her own design to the farm's grass strip. The FAA retains the right to authorize IAP; some paths to that authorization are better defined than others.

Answer 3

In the aeronautical information manual (AIM) itself:

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.

From that:

• AIM is not regulatory.
• AIM is aimed to assist pilots in executing their responsibilities.
• Pilots responsibilities are described in other publications.

A few paragraphs below:

The FAA publishes the Code of Federal Regulations (CFRs) to make readily available to the aviation community the regulatory requirements placed upon them.

FAR = Title 14 of CFR.