Review of Part 91

[Richard]

RE: 91.17(c)(1)(ii)

Ref: 2011 FAR/AIM

A review of this part has caused me to consider how typical is it that a federal regulation would make it a violation to not comply with state or local law.

 

[alaskaflyer]

RE: 91.17(c)(1)(ii)

Ref: 2011 FAR/AIM

A review of this part has caused me to consider how typical is it that a federal regulation would make it a violation to not comply with state or local law.

Well, that regulation is not doing that. It is making it a violation not to comply with the express requirements outlined in the language of the regulation regardless of whether you are complying with state or local law :wink2:

I don't know how typical it is to have a violation of a federal regulation occur if you fail to comply with state or local law. I do know that it is very typical for a state or local law to be adopted for the purposes of federal regulation...in other words you would violate a federal regulation by conduct which in other circumstances would be charged as a crime or violation of a state or local law. Which in many ways makes sense. Why rewrite the book especially if you are trying to maintain consistency across jurisdictions?

As an example...36 CFR 2.2:

(4) Where hunting or trapping or both are authorized, such activities shall be conducted in accordance with Federal law and the laws of the State within whose exterior boundaries a park area or a portion thereof is located. Nonconflicting State laws are adopted as a part of these regulations.

That doesn't convey jurisdiction for federal officers to enforce state laws, only the state can convey such jurisdiction. It does allow federal officers to charge someone with a federal offense that is identical to a state offense, in a federal venue.

 

[Richard]

Technically, I agree. A violation would be in violation of the federal regulation. Yet to be in violation of this part would mean one has refused to submit to a state or local law.

 

[alaskaflyer]

Technically, I agree. A violation would be in violation of the federal regulation. Yet to be in violation of this part would mean one has refused to submit to a state or local law.

See my edit above. It is fairly common to find examples where the language of state or local laws (or even the regulations of other federal agencies) are adopted for the purpose of a particular federal agency.

 

[Richard]

In reference to your edit and example...who would decide or what is the process to decide...if a state or local law is non-conflicting?

I'm not even a lwyer and already this is getting confusing. I especially take umbrage that my pilot cert would hang in the balance.

 

[midlifeflyer]

In reference to your edit and example...who would decide or what is the process to decide...if a state or local law is non-conflicting?

The courts - usually in a process that begins when a state attempts to enforce its own rules and a defense is raised that it conflicts with federal law (or in the extreme version, that federal law pre-empts the field and no state regulation at all is permitted).

 

[alaskaflyer]

In reference to your edit and example...who would decide or what is the process to decide...if a state or local law is non-conflicting?

I'm not even a lwyer and already this is getting confusing. I especially take umbrage that my pilot cert would hang in the balance.

In the end the court. But as we know from FAA cases, the agency is given wide latitude in determining what their regulations intended - after all they wrote them.

 

[poadeleted20]

For those unfamiliar with the reg...

(c) A crewmember shall do the following:
(1) On request of a law enforcement officer, submit to a test to indicate the alcohol concentration in the blood or breath, when--
(i) The law enforcement officer is authorized under State or local law to conduct the test or to have the test conducted; and
(ii) The law enforcement officer is requesting submission to the test to investigate a suspected violation of State or local law governing the same or substantially similar conduct prohibited by paragraph (a)(1), (a)(2), or (a)(4) of this section.

The purpose of this regulation is to give the FAA the authority to yank your pilot certificate for failing to submit to someone other than the FAA when suspected of flying under the influence. Otherwise, the FAA would have no direct recourse if a local LEO was the person making the demand you refused.