December 1, 2001
By John S. Yodice
Last month we explained the legal requirements of notams that advise pilots of emergency air traffic rules and temporary flight restrictions (see " Pilot Counsel: Emergency Rules Notams," November Pilot). A proliferation of such notams were published in the wake of the September 11 terrorist attacks and a number of pilots are being investigated for violating them.
Early on September 11, the FAA had published additional rules governing the issuance of notams. Obviously, the FAA didn't know about the terrorist attacks when it published the rules, which became effective on October 11.
These rules do not change the substance of what we said last month. Here is what they do change: The FAA changed the name, but not the meaning, of FAR 91.137; the FAA also adopted a new rule, FAR 91.145, specifically for operations in the vicinity of aerial demonstrations and major sporting events, and it clarified FAR 91.138, a rule related to national disaster areas in the State of Hawaii; and *he FAA amended Part 103, regulating ultralights, to include all applicable references to temporary flight restrictions (TFRs).
The notams resulting from the terrorist attacks have been issued under one of two federal aviation regulations. One is FAR 91.137, whose name has changed from "Temporary Flight Restrictions" to "Temporary Flight Restrictions in the Vicinity of Disaster/Hazard Areas." The substance of the rule did not change, but the name change does have significance.
The change shows the FAA's intent to restrict this rule to establishing TFRs over disaster or hazard areas, and not over planned events. The rule has been — and will continue to be — used to establish TFRs over sites affected by train accidents, forest fires, earthquakes, floods, or other disasters. In the past the FAA had also used this rule to impose TFRs for major sporting events and aerial demonstrations, although this was never the intent. As a result, the FAA changed the name to emphasize the restriction.
Instead, the FAA added a regulation, FAR 91.145, to address specific traffic management procedures for flights near aerial operations and major sporting events. This rule came about to address the concerns of the military, airshow operators, and sporting event promoters.
In 1999, the Department of Defense, citing examples of past dangerous situations, requested that the FAA adopt a rule to prohibit all nonparticipating aircraft from operating within airspace used by military aerial demonstration teams. Two months later, the International Council of Air Shows (ICAS) petitioned the FAA for a regulation that would provide safe airspace for airshow operations. ICAS said that between July 1989 and June 1997 it received 48 reports of intrusions by nonparticipating aircraft into airspace used in airshows or practice sessions. The FAA also considered that over the years it had received requests to temporarily restrict aircraft operations over major sporting events such as the Olympic Games.
The changes to FAR 91.138, which affects Hawaii, were adopted to clarify the operating requirements, and made no changes in substance. The FAA was concerned that the prior version could be misinterpreted to mean that all listed conditions must be met before operating an aircraft within the designated airspace. The change made it clear that at least one of the conditions must be met. Part 103, "Ultralight Vehicles," was amended by adding references to the notam rules of FAR 91.137, 138, and 145, making them applicable to ultralight operations.
FAR 91.139, "Emergency Air Traffic Rules," was not changed. Notams based on this rule are still in effect.
Too many pilots are getting in trouble for allegedly busting the post-attack notams. Among the most common sanctions proposed is a 150-day suspension of the pilot's certificate, though in one case a pilot had his commercial pilot certificate revoked on an emergency basis (meaning an immediate grounding). He attempted to fly his Cessna 180 back to his home base on September 13, two days after the attack, when the notam grounding all general aviation flights was in effect. He was intercepted by military aircraft and forced to land. The FAA action grounding him came shortly after that. The case is on appeal to the NTSB.
The notams that have been issued as a result of the terrorist attacks have been regulatory or FDC notams, issued under FAR 91.137 and FAR 91.139. These rules have similar language making compliance mandatory: "When a notam has been issued...no person may operate an aircraft...within the designated area [or airspace] except.…" The exceptions in the case of TFRs are for aircraft participating in disaster relief, law enforcement, and the like. In the case of emergency air traffic rules, the exception is "in accordance with the authorizations, terms, and conditions prescribed in the regulation covered by the notam."
Even if the notam is not regulatory, the FAA may take the position that a pilot is responsible for knowing it and taking it into consideration in the conduct of the flight. The FAA relies on FAR 91.103, "Preflight Action," which requires that "each pilot in command shall, before beginning a flight, become familiar with all available information concerning that flight." To the FAA, all includes relevant notams.
I am not implying that pilots charged with violating the post-attack notams are guilty. The FAA must bear the burden of proving the violations. The pilots are entitled to raise defenses to these charges, one of which is the validity of the regulations underlying the notams.
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