FAR (§ 91.123 ) and that FAR §  91.117d doesn't change that.

 

True.

 

...but 91.3 does, as clarified in the AIM.

True.

 

...but 91.3 does, as clarified in the AIM.

 

 

§  91.3a doesn't. It merely defines responsibility

 

§  91.3b  explicitly limits deviation from any Part 91 rule to an in-flight emergency requiring immediate action.

 

Therefore a pilot may not deviate from  §91.123 unless there is an in-flight emergency requiring immediate action

§ 91.3a doesn't. It merely defines responsibility

 

That should have ended and authority.

§  91.3a doesn't. It merely defines authority (corrected as per your post #108)

 

§  91.3b  explicitly limits deviation from any Part 91 rule to an in-flight emergency requiring immediate action.

 

Therefore a pilot may not deviate from  §91.123 unless there is an in-flight emergency requiring immediate action

 

91.3 (in entirety) is permissive, not restrictive (which is what you're claiming).

 

Firstly, 91.3a specifically notes that the "pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft."  As such, if the pilot determines that the aircraft needs to be operated in a particular manner - at or above a minimum safe speed, for example - then the pilot may do so.

 

91.3b DOES NOT IN ANY WAY, SHAPE, OR FORM, restrict the pilot in any way.  Note that there is never a MAY/MUST/WILL ONLY, MAY/MUST/WILL NOT, CANNOT, IS RESTRICTED FROM/TO, and so on.  In fact, it's the exact opposite.  It is not restricting the pilot from anything, rather, it is expressly permitting deviations from any rule in emergency cases.

 

Looking at 91.3b, in conjunction with the FAA published guidance (the AIM) related to the interaction, you can very easily see that a controller instruction in contravention to a safe operation is not authorized.  An instruction along those lines would therefore not be enforceable under 91.123.  Additionally, again, the pilot being the "final authority as to, the operation of that aircraft" would have the final say in determining the safety of the aircraft, and therefore, may exercise that authority in not following an instruction.

 

While you're right that 91.3 doesn't specifically permit deviations from the rules outside of emergencies, the FAA clarification in AIM 4-4-1a notes that controller instructions in contravention to the safe operation of the aircraft are not authoritative.  As the instruction is not an authorization to conduct that safe operation, the instruction is not protected under 91.123.  As such, the pilot would not be deviating from 91.123 to continue to operate the aircraft safely (above min safe).

You misinterpret the meaning of the word authority in §91.3a.

It does not give the pilot the authority break any law and, as the immediately following section §91.3b makes explicit, the pilot may only deviate from the rules in §91 in an emergency.

You misinterpret the meaning of the word authority in §91.3a.

 

It does not give the pilot the authority break any law and, as the immediately following section §91.3b makes explicit, the pilot may only deviate from the rules in §91 in an emergency.

Huh? Who is talking about breaking laws? Kyle is saying that a pilot has a duty not to accept an invalid instruction and the ATC has a duty not to issue an invalid instruction. Since the pilot has ultimate responsibility for the safety of their own flight, nothing anyone else can do or say can take precedence over the pilots discretion. Influence and guide, yes, and the pilot needs a good reason that they can later justify for not following ATC guidence, but absolutiy nothing abdicates the pilot from responsibility for their own flight. 

 

What would be the point or benefit in having an ATC instruction take precedence over the pilots discretion? Do you really think ATC has the authority to sacrifice one aircraft to ensure the safety of others? Of course not, therefore, at the end of the day you have to accept that the rules can only be interpreted permissively. The pilot must aviate, navigate, communicate in that order, and this discussion is all a subset of communication. In short, the pilot will do what the ATC says, unless they have a good reason not to. 

^^^ What Paul said, but because I'm me there's this, too:

 

You misinterpret the meaning of the word authority in §91.3a.

It does not give the pilot the authority break any law and, as the immediately following section §91.3b makes explicit, the pilot may only deviate from the rules in §91 in an emergency.

 

I really don't.  If there's any misinterpretation of anything here, it's yours, as established over several posts in this thread.

 

In any case, nowhere in my post did I even remotely indicate that the pilot is able to deviate from any rule ("break the law," if you will), except in the case of 91.3b.  What I did say, however, is that 91.3 does not actually restrict the pilot from anything; rather, it only states specific allowances (again, permissive phrasing.)  It states that the pilot is the end authority to the operation of the aircraft, that authority includes deviations from any rule in Part 91 in emergency conditions, and those actions may require a statement to the Administrator, if requested.  Again, at no point does Part 91.3 say what the pilot may not do.

 

Furthermore, you seem to have misapplied my points, so here they are, simplified and summarized:

1. Part 91.3 states the pilot is (1) the end authority to the operation of the aircraft, (2) that authority includes deviations from any rule in Part 91 in emergency conditions, and (3) those actions may require a statement to the Administrator, if requested.
2. Part 91.123 states that a pilot must comply with ATC clearances and instructions.
3. AIM 4-4-1 clarifies that any ATC instruction is not authorization to conduct any action that would compromise the safety of the flight, or break a regulation.  (This could be reworded and interpreted to say that any ATC instruction that compromises the safety of the flight, or breaks a regulation is nullified.)
4. If a controller gives a speed restriction less than the minimum safe speed, this compromises the safety of flight, which means the command is null (point 3.)  As such, Part 91.123 (restrictions noted in point 2) is not invoked, because the command instruction is invalid.  The determination and knowledge of that minimum safe speed, and more importantly, the determination of not adhering to that minimum safe speed as unsafe is solely that of the PIC, as outlined in Part 91.3 (point 1.)

 

 

So, if I'm getting what you're arguing correctly:

I'm departing an airport surrounded by high terrain.  ATC then directs me to fly a heading of 090.  Complying with 91.123 would require me to make that turn.  Before turning, however, I take a look to my right and see that making that turn would put me right into the face of a mountain.  Again, not beginning that turn as soon as practicable would be in contravention to Part 91.123 (interpreting strictly, anyway.)  My aircraft is not on fire, nobody is dying in the back, I have plenty of fuel, and no other emergency condition exists, so I cannot rely on my 91.3b exemption.

 

So, what do I do?  If 91.3 doesn't allow me to break a regulation in non-emergency situations, how do I manage to not die (and kill the other pilot and passengers) before the controller realizes the mistake, or I finally get a word in edgewise to get an amended clearance before being mountain wall art?  Utilizing your interpretation of things, it seems I must make the turn to comply the instruction, and therefore with 91.123, and then request an amended clearance.

 

Again:

My PIC authority, as outlined in 91.3a and clarified in AIM 4-4-1b, allows me to make the determination of the safety of the flight.  My determination in this case would be that the turn would be unsafe (airplane versus mountain statistically favors the mountain.)  AIM 4-4-1a notes that controller instructions are not authorizations to conduct unsafe operations, so the control instruction is not valid.  At this point, in following with AIM 4-4-1b, I must request an amended clearance.

 

"Hey, Aspen, 090 would put me into a mountain.  Maintaining last assigned.  Advise new heading, ExecJet 13."

"ExecJet 13 - apologies - turn right heading 010, expect a turn on course in 3 minutes."

 

The occupants are still alive, and no rule was broken at any time in this example.

The FARs are law
 

Agencies, like the FDA, EPA, OSHA and at least 50 others, are called "regulatory" agencies, because they are empowered to create and enforce rules - regulations - that carry the full force of a law.

 

http://usgovinfo.about.com/od/uscongress/a/fedregulations.htm

 

the only exception from them is section §91.3b

 

 

 

If 91.3 doesn't allow me to break a regulation in non-emergency situations, how do I manage to not die

 

 

I would have thought avoiding flying into a mountain wasn't a non-emergency situation.

See what I mean Kyle

 

 

See what I mean Kyle

 

Haha - yes.  It's getting pretty ridiculous at this point, but whatever.  I'll shower off when I'm done.  Pompous as this may be, there is no possible way that I'm not correct in this debate, and I'm enjoying it for whatever morbid reason.

 

I mean, this debate is like trying to argue with me that Earth doesn't revolve around the Sun.  Come now...

 

 

 

The FARs are law

 

Yes, I know.  What is your point?  That the AIM is not the law like the FARs?

 

You would be correct that the AIM is not law like the FARs.  There's a vast difference between written law and the enforcement of the law, however.

 

The AIM is a form of guidance from the FAA itself on how it enforces the very rules (laws) that they have written.  You need only operate a car to see a parallel there:

-The speed limit is posted.

-The law prohibits operation of a motor vehicle above this speed.

-The enforcement of that law, however, allows for some fudge room

 

In the car case, most law enforcement agencies do not actually put this on paper.  In ours, the FAA has written out how they interpret the rule (law.)

 

 

 

I would have thought avoiding flying into a mountain wasn't a non-emergency situation.

 

So you're saying that the only legal avenue after receiving that turn to heading 090 into a mountain is to make the turn, declare an emergency, and then turn back to a safe course?

 

 

An emergency situation would be one in which you'd declare an emergency (through the actual use of "mayday.")  I'd argue that's wholly inappropriate.  While there is no formal definition of an emergency situation (again, left up to Part 91.3 PIC discretion), I'd argue that there's a more appropriate (and legal) avenue.

 

I'd state it here, but I've reiterated it no less than twice on this page alone.  If people followed your own guidance instead of the guidance in the AIM, we'd have emergencies declared all the time, and this is not reflected in reality.

The FARs are law

 

Wrong!!! The Captain IS the law!!!

Whatever regulations maybe written ad nauseum if the Captain can give a cast iron gold plated argument for not following the rules then he is exonerated.

He may still be "punished" i.e. given a "slap on the wrist" for "breaking" the law but having saved 150 lives in the process would probably not see him in prison etc!!

 

 

The FARs are law

 

 

 

Wrong!!! The Captain IS the law!!!
Whatever regulations maybe written ad nauseum if the Captian can give a cast iron argument for not following the rules then he is exonerated.
He may still be "punished" for "breaking" the law but having saved 150 lives in the process would probably not see him in prison!!

 

I'll actually defend Gerry here.

 

If he "saved" 150 lives in the process, he was likely already operating under the 91.3b anyway.  So, while you're correct in your statement, the law already states that the PIC (not necessarily the captain, per se) is "the law" in that case, Gerry isn't necessarily wrong there either.

 

(and, since I see that you're not living in FAA-land, where this part of the discussion is centered, I'll reiterate that the above refers only to FAA Parts and procedures within the United States - it may be different in Italy)

It's pretty simple. A pilot can always overrule ATC. When ATC tells you to decent and TCAS is yelling to climb you climb. To avoid weather you can request a different heading, when you really have to avoid you tell ATC you're banking to a different heading. Rapid decompression you decent as fast as possible etc etc.<br /><br />That is also one of the reasons why that in case of an emergency you have to dial 7700 in your transponder so ATC knows that you have a problem and ATC can act accordingly.<br /><br />When ATC doesn't agree with a pilots action they can file a report and send it to the authorities. They will investigate it.

Please keep in mind that different countries have different regulations.

 

In Germany for example, therw is no Speed limit below FL100 for IFR Traffic in Airspace C.

And even outside Airspace C it's not uncommon to get a "highspeed approved" by ATC.

 

Before a discussion about FL100 starts: In Germany the Transition Altitude is at 5000 ft, not 18000 ft like in the USA!

This thread went off on a tangent because of there's a difference between declining a offered clearance and deviating from an obtained clearance

.

Of course a pilot may decline any clearance offered.

 

However, once a clearance is obtained it may not be deviated from except in accordance with §91.123. ATC would be in an impossible position if it couldn't assume that aircraft would adhere to the clearance but could go wandering about the sky at the pilot's whim.