August 5, 2014
By John S. Yodice
The NTSB’s official definition of an aircraft accident is different from what is more frequently referred to colloquially as an aircraft accident. The difference has important consequences to many pilots, especially how it affects a pilot’s reporting requirements (“Pilot Counsel: Accident Notification and Reporting,” February 1990 AOPA Pilot), and how it affects the “get-out-of-jail-free” ASRS program (“Pilot Counsel: Don’t Wait Too Long,” AOPA Pilot August 2014). And reporting an aircraft “accident” that may or may not meet the technical NTSB definition often can lead to an FAA enforcement action against the pilot.
The FAA and the NTSB are federal agencies independent of one another. The NTSB is charged with investigating aircraft accidents, and it is the NTSB rules (NTSB rules 830.5 and 6) that require a pilot (or other operator) to immediately notify the nearest NTSB office of an aircraft accident, and to follow up with an accident report (there is no regulatory requirement for a pilot to notify the FAA, although that is one way to indirectly notify the NTSB). Only aircraft mishaps meeting the official definition need be reported.
According to NTSB Rule 830.2, “Aircraft accident means an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage” (my emphasis). The NTSB definitions of “serious injury” and “substantial damage” remove many aircraft mishaps that would otherwise be considered accidents.
The definition says, “Serious injury means any injury, which: (1) Requires hospitalization for more than 48 hours, commencing within 7 days from the date of injury was received; (2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose); (3) causes severe hemorrhages, nerve, muscle, or tendon damage; (4) involves any internal organ; or (5) involves second- or third-degree burns, or any burns affecting more than 5 percent of the body surface.” Many more injuries and hospitalizations could be incurred in an aircraft mishap that would not make the mishap technically a defined “accident.”
There is a similar limiting effect with respect to substantial damage. Some damages are specifically excluded from the definition of an accident. In general: “Substantial damage means damage or failure, which adversely affects the structural strength, performance, or flight characteristics of the aircraft, and which would normally require major repair or replacement of the affected component. [But note the following that are specifically excluded from “substantial damage”:] Engine failure or damage limited to an engine if only one engine fails or is damaged; bent fairings or cowling; dented skin; small punctured holes in the skin or fabric; ground damage to rotor or propeller blades; and damage to landing gear, wheels, tires, flaps, engine accessories, brakes, or wing tips are not considered ‘substantial damage’ for the purpose of this part.” In my seminars for pilots I frequently ask what classic mishap could fit into this exclusion, and pilots are quick to respond—a gear-up landing!
A pilot’s ASRS report to NASA seeking a waiver of disciplinary action for an incident that might involve an FAR violation will not be effective if it reports an aircraft accident. It is important to ensure that the incident being reported could not be mistakenly identified by NASA as an accident. We recommend that a pilot filing a ASRS report positively state in the report that the incident is not an accident within the meaning of the NTSB definition, and explain why by reference to the definition.
Lastly, aircraft mishaps could lead to FAA enforcement action. While many mishaps, especially serious accidents, routinely come to the attention of the FAA, many less-serious accidents such as fender-benders may not. It does not make sense for a pilot to be the one to call it to the attention of the FAA, especially if there is some chance that it will pass unnoticed. So, before an aircraft mishap is officially reported, a pilot may want to make certain that it meets the NTSB definition of an accident. If a notification and report are required, they should go to the NTSB, and not the FAA.
This column should not be misunderstood. I recognize that the FAA and NTSB have important responsibilities in safety enforcement and accident investigation. They are just doing their jobs, for which we are appreciative. On the other hand, my job is to counsel pilots, even if it sometimes could be taken as critical of the FAA and NTSB.
John S. Yodice is partner in the law firm that manages the AOPA Legal Services Plan.
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