Was The Idiot Legal?

[RST Engineering]

Ignore if you will for the moment 91.13, the catch-all "careless/reckless"
provision that can getcha if you sneeze during the approach. Let's see if
"idiot" was legal.

What else can getcha? 91.103 might be a good start. Lessee, it starts off
with a catch-all that says you have to have "all available information"
regarding the flight, but it goes on to enumerate what the author of this
section finds important -- weather, fuel, alternates, delays, and
performance figures (takeoff and landing distances). Hmmm ... nothing about
notams or VFR charts that I can see.

What else? How about 91.139(c) that says that a person must operate the
aircraft under the terms and provisions of the NOTAM. Since the idiot
eventually worked himself into the system, and the NOTAM didn't specify that
you have to have VFR charts on board, was he legal?

Seems he had enough fuel. Seems he maintained VFR weather minima. His
airplane didn't have any malfunctions (other than a loose nut on the
microphone) evidencing improper maintenance.

The NOTAM itself is rather vague. It says you MUST execute the Ripon/Fisk
approach if operating VFR. It says you MUST, you are REQUIRED, and you
SHALL in a lot of places in the NOTAM. As to carrying it, the wimpy "pilots
are EXPECTED to ... have a copy of the NOTAM" are the words. EXPECTED.

When a lot of imperatives are used along with a permissive, the general
holding is that the permissive is not mandatory. Expected is a permissive.
Just one little word change could have made all the difference.

Do not under any circumstances misinterpret my questions to say that I
thought the idiot was an exemplary specimen of aviation competence. Not on
your tintype. I'm merely attempting to find something in the written
documentation that we all aviate under to hang my hook on and I can't find
it. Didn't have a VFR chart? Not required to have one. Didn't have the
notam? Not required to have it. Will stand for a long time as how NOT to
fly into Oshkosh? So long as there are computers that will reproduce audio
files.

Jim

[Jim Burns]

"RST Engineering" > wrote in message
...
> snip>> What else can getcha? 91.103 might be a good start. Lessee, it
> starts off with a catch-all that says you have to have "all available
> information" regarding the flight, but it goes on to enumerate what the
> author of this section finds important -- weather, fuel, alternates,
> delays, and performance figures (takeoff and landing distances). Hmmm ...
> nothing about notams or VFR charts that I can see.
>

Your post represents some of the often untaught subtleties of the FARs....
what they DON'T say is illegal.

Google FAA 91.103 and the first result is an AOPA legal article about a
fellow that hopped over to a local airport to refuel his Grumman in
preparation for transporting a heart transplant patient. A noble mission by
a cautious pilot who wanted to be prepared to transport the patient. But,
it was 9/11/01 and he didn't read the NOTAM that all airports were closed.
The FAA hit him with a 240 day suspension and he appealed to the NTSB.

From the article:
"The NTSB's interpretation of FAR 91.103, "Preflight action," one of the
violations charged in this case, is especially important for pilots to know.
This is the regulation that begins with the all-encompassing words, "Each
pilot in command shall, before beginning a flight, become familiar with all
available information concerning that flight." Not very helpful. The rule is
better remembered for what follows, that is, a very specific listing of
information that a pilot must know before beginning a flight. None of the
specifics involve notams or security regulations. They are confined to such
things as applicable weather reports and forecasts and fuel requirements but
only for flights under IFR and flights not in the vicinity of an airport.
The regulation also requires familiarity with runway lengths, and the
takeoff and landing distance requirements for the airport and aircraft being
used - again, nothing specific about notams or security regulations.

So it becomes important for pilots to know that the NTSB interpreted the
very broad introductory language, "all available information," to include
notams. The board rejected the argument that in the circumstances (a short
flight, good weather, and familiar aircraft and airports) other pilots might
act similarly. In tough language the board said, "They would do so at their
own risk." It went on to say, "Indeed, given what he knew about what
happened earlier that day in the East, respondent's [the pilot's] lack of
consultation with the FAA prior to his flight was highly irresponsible and
personally dangerous." This is unusually strong language coming from the
board.

One lesson that could be drawn from this case is that pilots should check
notams before every flight. Failure to do so could be considered by the FAA
and NTSB as a violation of FAR 91.103."

Obviously this was and will continue to be a unique situation, however, if
an accident or incident occurred at OSH and was caused by a non-NOTAM'd
pilot, the FAA and NTSB could use their broader interpretation of 91.103 to
hang the guy.

As Jim points out, nothing in the regs that says he HAD to have the NOTAM.
In fact, the EAA site uses language that is even more mild than the NOTAM
itself, merely "urging" pilots to obtain and become familiar with the NOTAM,
not even mentioning that it would be a good idea to have it in the airplane.

I hate to even type the letters, but there is the TFR alternative. 91.145
would be adaptable to special airshow restrictions, say such as requiring
familiarity with and operation under the NOTAM.

Jim

[Peter Duniho]

"RST Engineering" > wrote in message
...
> What else can getcha? 91.103 might be a good start. Lessee, it starts
> off with a catch-all that says you have to have "all available
> information" regarding the flight, but it goes on to enumerate what the
> author of this section finds important -- weather, fuel, alternates,
> delays, and performance figures (takeoff and landing distances). Hmmm ...
> nothing about notams or VFR charts that I can see.

As Jim Burns said, 91.103 does not actually enumerate what the pilot is
required to know. It simply provides a list of important examples. NOTAMs,
even though not specifically listed in 91.103, are required to be reviewed
by the pilot as part of "all available information".

> What else? How about 91.139(c) that says that a person must operate the
> aircraft under the terms and provisions of the NOTAM. Since the idiot
> eventually worked himself into the system, and the NOTAM didn't specify
> that you have to have VFR charts on board, was he legal?

But did he operate under the terms and provisions of the NOTAM? I'd say
not.

> [...]
> The NOTAM itself is rather vague. It says you MUST execute the Ripon/Fisk
> approach if operating VFR. It says you MUST, you are REQUIRED, and you
> SHALL in a lot of places in the NOTAM. As to carrying it, the wimpy
> "pilots are EXPECTED to ... have a copy of the NOTAM" are the words.
> EXPECTED.

I agree that there is no requirement that he actually have the text of the
NOTAM with him. However, he didn't even bother to read it. At least for a
portion of his approach to Oshkosh, he certainly did fail to execute the
Ripon/Fisk approach, and perhaps other elements of the NOTAM as well.

> When a lot of imperatives are used along with a permissive, the general
> holding is that the permissive is not mandatory. Expected is a
> permissive. Just one little word change could have made all the
> difference.

I'm not convinced that there need be a mandatory requirement that the NOTAM
be carried with the pilot. As with charts, I think it's foolish to fly
around without data like that, but if the pilot is capable of following the
procedure without the supporting data, why require it?

Furthermore, from an enforcement perspective, I'd rather not have rules that
apply not to my performance as it relates to the aviation itself, but rather
simply to my ability to provide required paperwork. If I blow the approach,
by all means, cite me for that. If I fly the approach perfectly, but a ramp
check shows that I don't have the necessary paperwork aboard the airplane,
should I actually be found in violation of anything? I don't think so. We
should look very cautiously at any rule that might create such a situation.

> Do not under any circumstances misinterpret my questions to say that I
> thought the idiot was an exemplary specimen of aviation competence. Not
> on your tintype. I'm merely attempting to find something in the written
> documentation that we all aviate under to hang my hook on and I can't find
> it. [...]

In addition to 91.103 (which I do think applies), how about 91.111(a), "No
person may operate an aircraft so close to another aircraft as to create a
collision hazard." I suppose it depends on how the FAA defines "collision
hazard", but assuming an actual collision need not actually occur, one could
argue this guys created a collision hazard.

How about 91.113? I don't have enough information myself to judge this one,
but is it possible that the pilot violated some right-of-way rule in the
course of his flailing about?

Or maybe 91.123? If he had complied perfectly with ATC instructions, surely
there wouldn't have been an issue. So it seems apparent that at some point,
he failed to comply with ATC instructions.

Bottom line here is that I feel that if the FAA actually wanted to cite this
guy, they could. Heaven knows they've found all sorts of other BS
violations to cite people with (witness the thousands of airspace violations
that happen each yet, most of which have nothing to do with safety,
including Bob Fry's). The FAA is great at trumping up charges, and I'm sure
that if any inspector actually wanted to, they'd have no trouble at all
finding something to file against this guy.

Pete

[Cub Driver]

On Tue, 1 Aug 2006 14:37:40 -0700, "RST Engineering"
> wrote:

> Didn't have a VFR chart? Not required to have one. Didn't have the
>notam? Not required to have it.

He's required to have all available information. The VFR chart and the
NOTAM were available.


-- all the best, Dan Ford

email: usenet AT danford DOT net

Warbird's Forum: www.warbirdforum.com
Piper Cub Forum: www.pipercubforum.com
In Search of Lost Time: www.readingproust.com

[bdl]

RST Engineering wrote:
> Ignore if you will for the moment 91.13, the catch-all "careless/reckless"
> provision that can getcha if you sneeze during the approach. Let's see if
> "idiot" was legal.

Interesting question, and it brings to my mind a conversation (debate
if you will) with one of my partners in our Archer about the new
electronic flight bag products (EFB).

While not doing any specific research on the topic, I maintained that
there was no requirement (for part 91) for paper charts to be on board
(other than the "all available information" requirement). Just that
any charts you had on board had to be current. Not necessarily safe,
but that wasn't the terms of the debate... Just legality.

He maintained that you had to have paper charts on board for all
airports over your route of flight, except for exercising your
emergency authority.

We went back and forth with various scenarios... what if I had
memorized all the available information in a given approach book given
that I have a photographic memory? What if I scrawled all the
information on the back of various cocktail napkins during a layover?
Etc. Etc. Do you just need the information on the plate? or do you
need it in a specific format? What about really really tiny print? So
on and so on.

So cut to Oshkosh (my first trip by the way), we're walking around the
FAA booth (more like a building) and my partner wrangles an FAA type
and puts the question to her. After much hemming and hawing, and
trying to figure out exactly why we were asking the question, her take
was that you do need paper charts on board, even with an EFB, since the
EFB could fail. I thought that requirement only pertained to part
135/121 crews, but I wasn't going to argue with the woman with the FAA
logo on her shirt.

Suffice it to say, at least one FAA type feels you need to have the
charts on board. At least for IFR flight.

I still think she's wrong. But I'm too lazy to dig out references in
the FARs/AIM. Any aviation lawyer types already done this research and
care to comment?

If the FAA wanted to require the NOTAM, they could just issue a TFR
requiring a copy of the NOTAM to be on board. Then of course you
could get into the further debate... Does it have to be the official
FAA printed form? What if its stored in a PDF file on the pilots
laptop (which accidentally was loaded in the nose baggage compartment
in his Cherokee 6)?, Etc., etc.

Personally, the way to fix this, is to have the EAA collect the top 10
stupid things pilots do on their way to Oshkosh. A sort of "don't do
what this idiot did". The viral marketing nature of the internet alone
will reach more pilots than the NOTAM will.

If 83A's radio communication was put into wider distribution (other
than just on rec.aviation) it's sure that at least one pilot will be
less likely to not do it again.

[Jose[_1_]]

> While not doing any specific research on the topic, I maintained that
> there was no requirement (for part 91) for paper charts to be on board
> (other than the "all available information" requirement). Just that
> any charts you had on board had to be current.

I know of no regulation prohibiting the carriage and transport of
outdated charts.

Jose
--
The monkey turns the crank and thinks he's making the music.
for Email, make the obvious change in the address.

[bdl]

Jose wrote:
> > While not doing any specific research on the topic, I maintained that
> > there was no requirement (for part 91) for paper charts to be on board
> > (other than the "all available information" requirement). Just that
> > any charts you had on board had to be current.
>
> I know of no regulation prohibiting the carriage and transport of
> outdated charts.
>

Good point.

[bdl]

T o d d P a t t i s t wrote:

> I did some research on this a year or so ago. You will find
> some SFARs relating to flight near Class B airports that
> actually mandate a current Terminal Area Chart. My
> recollection is that I saw one for CA - perhaps the LAX
> area.

Interesting...

> > Just that any charts you had on board had to be current.
>
> My research found that for Part 91 VFR this is not required
> except as above. There is/was an FAA manual for FAA
> enforcement used during a ramp check that seemed to indicate
> that current charts were needed or no charts, but not old
> ones. However, case law and a ruling from the FAA made it
> clear that having an old chart was not a violation. Of
> course any accident that might be remotely traced to the
> lack of a current chart could hang the pilot

This brings up another point the FAA lady suggested and that we
shouldn't worry about what was legal or not, since our insurance would
probably mandate a specific requirement.

I haven't gone through my insurance with that level of detail, but
somehow that sounds like a non-issue. Anybody know of an insurance
company that required current charts on board to be covered?

> My research was only VFR oriented. I haven't even got an
> electrical system ;-)

Geez how do you get anywhere without any fancy electronics? ;-) It's
electrons that make it fly you know.....

[Ron Natalie]

Cub Driver wrote:
> On Tue, 1 Aug 2006 14:37:40 -0700, "RST Engineering"
> > wrote:
>
>> Didn't have a VFR chart? Not required to have one. Didn't have the
>> notam? Not required to have it.
>
> He's required to have all available information. The VFR chart and the
> NOTAM were available.
>
>
Nope, no such regulation. The "all available information" applies
to preflight planning, NOT what you carry along with you during the
flight.

[Ron Natalie]

T o d d P a t t i s t wrote:
> "bdl" > wrote:
>
>> While not doing any specific research on the topic, I maintained that
>> there was no requirement (for part 91) for paper charts to be on board
>> (other than the "all available information" requirement).
>
> I did some research on this a year or so ago. You will find
> some SFARs relating to flight near Class B airports that
> actually mandate a current Terminal Area Chart. My
> recollection is that I saw one for CA - perhaps the LAX
> area.

I believe that is limited to the VFR corridors in the
LA Area.

[Matt Whiting]

Ron Natalie wrote:
> Cub Driver wrote:
>
>> On Tue, 1 Aug 2006 14:37:40 -0700, "RST Engineering"
>> > wrote:
>>
>>> Didn't have a VFR chart? Not required to have one. Didn't have the
>>> notam? Not required to have it.
>>
>>
>> He's required to have all available information. The VFR chart and the
>> NOTAM were available.
>>
> Nope, no such regulation. The "all available information" applies
> to preflight planning, NOT what you carry along with you during the
> flight.

The regulation requires you to be "familiar" with "all available
information." This pilot obviously did not become "familiar" with the
NOTAM prior to flight. I believe he could easily be cited under 91.103
and I'll bet it would stick.

Matt