NTSB Decision Friendly To General Aviation
BY SANDRA M. McDONOUGH
Sport Aviation - January 1999
In a recent decision, the full National Transportation Safety Board has recognized that not all flights are the same. We know that — we do most of the flying — and not all of it is the old fashioned straight and level stuff. At a time when aviation still draws prime media time for each gaffe, it is refreshing to see a NTSB which recognizes differences.
The case arose some four years ago at a sky diving operation at an uncontrolled field in rural New York state. On a Sunday afternoon after two lifts (a load of jumpers is a “lift”), the pilot was subjected to a ramp inspection by an FAA inspector. The King Air A90 had no door! Zounds! Grounded! Some explanations, a 337 or two, but no flying. Fortunately, the inspector’s boss recognized that airplanes fly without doors for most sky diving operations and the flights resumed with the FAA inspector watching.
While contemplating the door issue, I just can’t imagine struggling out of a plane with a ’chute wrapped around me while I fiddled with a door forced against the fuselage in the slipstream. Back into the air went the dauntless pilot with another lift. Success was not to be his, however, as the inspector watched each minute of the flight. The King Air went to 14,000 feet and some miles away and jumpers were away again. This time the inspector determined that the angle of bank, pitch and spiraling descent were aerobatics and initiated an action to suspend the pilot’s license for 90 days.
No amount of explanation about sky diving or even a challenge to what was “seen” nearly four miles away could dissuade the FAA, and the battle began. Whenever something unusual happens during a flight, we suggest that a report be filed with NASA under the Aviation Safety Reporting Program. Not only will the report add to NASA’s data base of flight anomalies, the report may identify an unsafe trend or situation or a human factors issue to be addressed by NASA in its monthly CALLBACK (free from NASA, P.O. Box 189, Moffett Field, CA 94035-9800).
To encourage such reporting, the FAA will not use information on an ASRP report for enforcement purposes so long as the incident did not result in an accident, involve a criminal act and was inadvertent. That being the case, the bonus is that even though the FAA may find a violation, your certificate stays in your pocket and there is no suspension of privileges. The violation will remain in your FAA record in Oklahoma City for five years and then it is expunged (erased). Our fellow filed an ASRP report — but the FAA determined he meant to fly the way he did and convinced the trial judge that his flight violated aerobatic flight intentionally. The trial judge did lower the suspension from 90 to 60 days — still a death knell for a professional pilot. An appeal to the full NTSB followed and four years after the incident the pilot’s appeal was granted overturning the suspension. Four years out of a person’s life!
The appeal rose and fell on three areas: credibility of the FAA’s inspector; operating limitations of the King Air; and that for sky diving operations, the pilot’s flight was not aerobatic. For the first topic, the Board determined that the FAA inspector lacked expertise in sky diving operations, noting that it’s highly unlikely an experienced pilot would knowingly violate FARs with an inspector present. The FAA introduced a letter from the plane’s manufacturer saying that production models do not have VSIs which measure descents (and climbs) in excess of 4,000 fpm. Both the inspector and an air traffic control specialist testified that the plane descended at a rate from 5,800-8,000 fpm and contended this exceeded the maximum permissible rate of descent for the plane. The VSI does not create an operating limitation nor is it required for VFR or IFR flight (91.205).
Operating limitations for type-certificated aircraft are in a portion of the POH and are approved by the FAA. The pilot contended that his 20° pitch up and abrupt left turn with 45° bank were “absolutely normal” for sky diving and the Board agreed. Determining the FAA inspector was not qualified in sky diving operations, the Board said the maneuvers may have appeared aggressive to one not an expert in sky diving operations. The last issue — and the most important — is whether or not sky diving warrants “different treatment under the FAR than operations of similar aircraft under other circumstances.”
The FAA relied on their position that what is normal for point-to-point flight will also be normal for sky diving operations, too: the old goose/gander argument. The pilot’s expert described agricultural spraying operations which require abrupt climbs out of a field and rapid turn arounds. Glider tow operations come to mind, as do pipe line patrol and CAP mission flying as non-point-to-point flights with significantly different flight profiles which might not be “normal flight” in point-to-point passenger type operations. In interpreting FAR 91.303, the Board did not agree with the FAA and FAA reasoning that the maneuvers (pitch, bank and rapid descent) were not necessary for “normal flight.”
In a prior case, the FAA had argued that aerobatic flight’s definition was intentionally vague because “specific degrees of pitch or bank would be unnecessary and undesirable, given the wide variation in aircraft and their design capabilities.” In this case, however, the FAA wanted to enforce the concept that what is “normal” flight for one aircraft is “normal” flight for every other aircraft, in every situation, and that high descent rates combined with bank angles that exceed 45° are always aerobatic.”
Something like wanting your toast with jam on both sides so the violation always sticks. Unable to find a clear understanding of what aerobatic flight is or even a clear definition of it, and the FAA’s own inconsistent position on what aerobatics consist of, the Board granted the pilot’s appeal.
So, folks, we have a twinkle of light: aerobatics and normal flight are still open for definition. Just remember that what you do as “normal flight” may not appear so to an onlooker. The door’s open for interpretation now. Do what’s right!
(Sandy McDonough, EAA 225663, practices aviation and family law in Stratford, CT. She holds an ATP and CFI/II/MEI, is an FAA Aviation Safety Counselor and a member of EAA’s Legal Advisory Council.)
