Leading aviation attorney, Kathy Yodice, has written an excellent, insightful article (reproduced below), which AOPA published for the edification of its members. While Ms. Yodice focuses on one of the elements which lawyers (and other writers) use to express thoughts with precision, the comma.
Before reciting her words, here are some other thoughts:
- Words matter—Knowing whether the sentence is intended to impose a requirement or just providing useful advice is incredibly important. Whether the regulation is meant to be mandatory or permissive depends on the specific language chosen (noun, verb, adjective/adverb) and punctuation. You have to be skilled and careful to “parse” an Federal Avaiation Regulation to know what exactly the regulation is intended to require, or not require, of the you, the regulated.
- Do not assume that you understand a particular word; be sure to check with a dictionary which is considered to be a standard.
- Legal writing (the Federal Aviation Act and the FARs) are the work product of attorneys. Their craft depends on an artful choice of specific words. Some of their verbiage may come from a book called Black’s Law Dictionary; for example, “competence” can have a very tight meaning for lawyers.
- Some of the text may be influenced by other sections of the Act, FARs or judicial opinions.
- Intonation, conotation and denotation are tools of these regulatory writers. There are, for example, FARs with extremely explicit meanings and other §§ which are meant to be ambigous. Being able to identify those differences requires special knowledge and extensive experience.
- Diagramming a sentence (remember those lessons in school that you hated) is a way to assure that you understand what the FAR means. Whether an adjective or adverb modfies both connection dependent clauses will be clearer if you get your ruler out and parse the words.
- Conjunctives, disjunctives and a bunch of other technical terms must be carefully observed.
- There is a hierachy of laws—statutes> regulations is the beginning of a pyramid of “power” assigned to ADs, ACs, INFOs, PIGLs, etc. It is not unusual for your friendly local FAA representative to tell you that you must comply with…..and the lesser document, being cited, conflicts with a set of words with greater authority, i.e. Handbook< FAR.
- Make sure the version is current—another important part of your research is to insure that the words at issue are still effective. Some FAA orders, for example, have a termination date. An investigator may be using a version of the FARs which have been amended. If you know how to use faa.gov or eCFR.gov or other resources to make sure that you have the operative language.
- Judicial deference to agency interpretation is a well settled maxim; it means that if there is a court case and if the two parties disagree what FAR§___.__ means, the judges will give credit to what the agency states it intended to say. It is not a 100% slam dunk that the FAA’s view wins, but you have to have a strong argument (see above and below) which will convince a scholarly audjudicator to find the US’ position unreasonable.
As Kathy’s research shows, interpreting the FARs is NOT intuitive. Research, careful parsing of the language and a command of the FAA’s vocabulary are absoultely essential. One way to improve your acumen for reading this thick prose is to take any one of the regulatory affairs courses available.
One other point before turning to Ms. Yodice’s paper—you might want to consult a lawyer. Yes, they are expensive, but paying for her/his opinion BEFORE you act is MUCH CHEAPER than if your best guess turns out to be wrong and the FAA sends you a nasty letter. When that happens, the FAA attorney is paid by your taxes and you will have to pay a lawyer to defend you. Whether you are hiring a counsel a priori or after the fact, BE CERTAIN that he/she already has experience dealing with a case similar to your’s.
Here are her words, expressed in a typically exquisite manner and evidencing her typical knowledge/research of the FARs:
I was editing a document the other day and was wrestling with how to make some wording in a sentence clearer. I thought to add a comma but hesitated because of a law article I had just read that described a recent court decision that turned on the placement of a comma. In that case, a person’s guilt or innocence hinged on what the lack of a comma meant. The municipality argued that the missing comma was a typographical error. The individual argued that the lack of comma was intentional and gave meaning to the ordinance that left the individual innocent of the charges. The individual won. So, with all the regulations imposed on us by the FAA, and the many commas inserted in those regulations, I wondered if there was an FAA case where a comma made a difference.
For good or bad, I didn’t find much.
In one enforcement case, the FAA charged a flight crew with climbing above their assigned altitude while on a departure procedure. Part of the crew’s argument involved a reading of the language on the standard instrument departure (SID) that they were executing. The SID stated that turbo jets maintain 5,000 feet “comma” and propeller aircraft maintain 3,000 feet “or assigned altitude.” The law judge thought it unfair for the FAA to argue that the crew was on notice that they should anticipate any altitude assignment and that the crew could not use the SID to reasonably rely on 5,000 feet to be their altitude assignment. The judge held that the “or assigned altitude” phrase applied only to propeller aircraft because of the placement of the comma. This part of the argument didn’t matter ultimately in the case because the NTSB concluded that ATC amended the clearance and the crew failed to hear and then follow that amended clearance. Still, it’s worth noting that the comma had meaning to the NTSB’s review of the FAA’s enforcement position. By the way, the SID no longer has this language.
In another instance not involving a comma but involving a semicolon, the FAA chief counsel’s office was asked whether language placed on the same line of a subparagraph but separated with a semicolon meant that the language applied only to that line or whether it also applied to the language in the subparagraph that preceded it. The regulation addressed two types of flight—IFR and VFR. The first subparagraph referred to a flight conducted under IFR, and the second subparagraph referred to a flight conducted under VFR. The FAA recognized that the placement of the language immediately following the reference to VFR flight could lead to a mistaken interpretation that it applied only to VFR flight. However, the FAA explained that the “intent” was for the language to apply to both IFR and VFR flight, as indicated by the placement of a semicolon. Today, that regulation is phrased differently.
It appears that punctuation can matter in understanding how a regulation may apply to our flight activities. And, punctuation could make a difference in evaluating the merit of an FAA enforcement case. It’s worth watching those punctuation marks!