July 1, 2004
By John S. Yodice
John S. Yodice has served as legal counsel for AOPA since 1963.
In the late morning on September 11, 2001, a pilot flew his aircraft (described only as a "Grumman") some 17 miles from his home at a residential airpark to a nearby airport and back. The purpose of the flight was to fuel up for a potential emergency flight to transport a heart transplant patient. His home airpark had no fueling facilities. He felt no reason to check notams (FAA notices to airmen) for such short flights in good weather conditions. That judgment cost him his pilot certificate for 240 days.
No one needs reminding that September 11, 2001, was the fateful day of the airline hijackings and terrorist attacks in New York, Washington, D.C., and Pennsylvania that have so dramatically changed our lives. Immediately after these attacks, and prior to the Grumman flight (which took place far away in the northwest corner of the United States), the FAA issued a notam closing all civilian airports and grounding all civilian aircraft across the United States.
The FAA took enforcement action against the Grumman pilot, suspending his private pilot certificate for 240 days. The FAA action charged that the flights were violations of sections 91.103, 91.137, and 91.139 of the Federal Aviation Regulations. The FAA action withstood a vigorous appeal by the pilot to the National Transportation Safety Board. The full five-member board, and a tough and irritated judge of the board, turned a deaf ear to the pilot's plight.
It has been almost three years since the terrorist attacks. While the absolute ban on flight has been lifted, we continue to see a proliferation of security notams restricting general aviation flight. And we have seen the effects through the AOPA Legal Services Plan — hundreds of FAA enforcement actions brought against pilots for violating security notams. These cases prompt us to again alert pilots to the applicable regulations.
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.
One of the other regulations cited in this case was FAR 91.137, "Temporary flight restrictions." The FAA has since changed the name, but not the meaning, of this regulation. It went from "Temporary flight restrictions" to "Temporary flight restrictions in the vicinity of disaster/hazard areas." As the name suggests, FAR 91.137 is intended to provide for notams that designate an area within which "temporary flight restrictions" apply. These are usually associated with some notable incident on the surface. Major disasters on the ground are prime examples. As you would expect, there are exceptions for aircraft participating in disaster relief, law enforcement, carrying news people, and the like.
FAR 91.139, "Emergency air traffic rules," is the other regulation that was cited in this case. It provides, "Whenever the administrator determines that an emergency condition exists, or will exist, relating to the FAA's ability to operate the air traffic control system and during which normal flight operations under this chapter cannot be conducted consistent with the required levels of safety and efficiency, the administrator issues an immediately effective air traffic rule or regulation in response to that emergency condition; and the administrator or the associate administrator for air traffic may utilize the notam system to provide notification of the issuance of the rule or regulation. Those notams communicate information concerning the rules and regulations that govern flight operations, the use of navigation facilities, and designation of that airspace in which the rules and regulations apply."
Here is the bite. FAR 91.139 goes on to provide, "When a notam has been issued under this section, no person may operate an aircraft, or other device governed by the regulation concerned, within the designated airspace except in accordance with the authorizations, terms, and conditions prescribed in the regulation covered by the notam."
For completeness we should mention that there are other notam rules that we need to be concerned about. The FAA has adopted a new notam rule, FAR 91.145, specifically for operations in the vicinity of aerial demonstrations and major sporting events, and it adopted rules amending Part 103, the "Ultralight vehicle" regulations, to include applicable references to temporary flight restrictions. Temporary notams also will be issued to protect space flight operations and to protect the travel of the president, vice president, and other public figures. These are covered under FARs 91.141 and 91.143.
In today's climate it is wise to know and understand these regulations, and to consistently check notams before any flight.
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