The FAA’s Irrational Application of a Rule

A little about my Vertical column and the responses to it.

If you’re a helicopter pilot, you’re likely familiar with Vertical Magazine. Simply put, it’s the premiere helicopter pilot/operator publication, with great articles and amazing photography. It not only informs those of us in the helicopter industry, but it keeps us enthusiastic about being part of what’s admittedly a rather elite club.

Vertical MagazineIf you read the June/July issue (download here as a pdf), you may have seen page 10’s Talking Point column. And if you know this blog, you probably realized that the Maria Langer who wrote that month’s column is the same Maria Langer who has been blogging here since 2003. Yeah: me.

I haven’t blogged about this yet because, frankly, I still can’t believe it happened.

While I wasn’t paying attention, the FAA issued FAR Part 135.160, which requires Part 135 on demand charter operators like me to install a radio altimeter. The rule has a loophole, which my Primary Operations Inspector (POI) at the Flight Standards District Office (FSDO) told me about: a waiver was available for helicopters less than 2,950 pounds max gross weight. My R44 has a max gross weight of 2,500 pounds and is VFR-only. Surely I’d get the waiver.

I didn’t.

What’s the Big Deal?

If you’re not familiar with what a radio altimeter is, you likely don’t understand how incredibly idiotic it is to require one in an R44. Here’s the deal. A radio altimeter — which is also sometimes called a radar altimeter — uses radio waves to measure the exact height of an aircraft over the ground. It then sends this data to a readout on the aircraft’s instrument panel so the pilot has this information handy.

Of course, a Robinson R44, which is what I fly, is a VFR-only aircraft. That means it’s only legal to fly in VFR (visual flight rules) conditions. That means you can see out the aircraft window. And that’s what Robinson pilots — all VFR pilots, for that matter — do when they want to know how high off the ground they are. They look. After all, they’re supposed to be looking outside anyway.

So for the FAA to require this kind of instrument on an aircraft that’s never going to need one makes absolutely no sense whatsoever.

Being the gadget person I am, I might not mind having a new toy in the cockpit. The trouble is, my cockpit’s panel must be modified to accommodate it, thus reducing my forward visibility, and the damn thing is going to cost me $14,500 to buy and have installed. And the helicopter will be offline for about a week while the mechanic tears it apart and drills holes in the fuselage to put it in.

There’s more to the story, but it’s mostly covered in the Vertical column. Go read it now; it’s on page 10. It’s short — they wouldn’t let me have more than 1,000 words. (I know; I gave them 1,200 and they cut 200 out.) See if you can read my frustration between the lines.

Responses

I got a number of responses to the column.

credits
This is kind of cool: they listed me as a contributing editor in that issue’s masthead.

The very first was from my friend Mike in Florida. He sent me an email message that included the Contributing Editor list you see here and a link to the article with his congratulations. Mike has also written for Vertical; he has a ton of experience and great writing skills.

A handful of other folks I knew texted or emailed me that they’d seen it. That was gratifying. I really do like writing for publication and should make a conscious effort to do it more often.

Then, the other day, about two weeks after it was first published, I got a call from someone at Helicopter Association International (HAI). HAI is a professional organization for helicopter pilots and operators. I used to be a member. It cost $600 a year and the only thing I got from them was a wooden membership plaque and a lot of paper. Safety posters, manuals, letters, newsletters, magazines. All kinds of crap to add to the clutter that had already taken over my life. When I dropped my membership after two or three years, they called to find out why. I told them they did nothing for small operators like me. They promised to change and conned me into joining for another year. Nothing changed. I was throwing my money away. I dropped my membership for good.

The HAI guy who called started by asking why I hadn’t come to HAI with the radio altimeter issue. After all, part of their member benefits was to be the voice of helicopter operators in Washington DC. Wrong question. I told him I wasn’t a member and then explained, in many, many words, why I’d quit. Then we talked a bit about the radio altimeter issue. He said he’d been working on it for a few days and he certainly did know a lot about it. He said that he wasn’t sure, but thought that HAI, which had been involved in the rulemaking comment process, had assumed it would only apply to medical helicopters. He said I shouldn’t get my hopes up but he and HAI were going to work on it. He wanted to stay in touch. Whatever. I gave him my email address.

When I hung up, I wondered why they were trying to close the barn door after the horse had already gotten out. After all, the FAA was not going to change the rule, especially after so many operators had already gone to such great expense to meet the requirement. HAI had dropped the ball for its small operators yet again. At least I hadn’t paid them to do it on my behalf.

The most recent response came just today and it prompted me to write this blog post. It was an email from a Facebook friend. I actually got two versions of it; I think this is the one he sent first which he apparently thought he lost:

Hey Maria
My name is Scott ##### and I took a $40 ride with you at the 2006 Goodyear Airshow out to PIR and back.
In 2007 I started flight training. We’re “friends” on Facebook and I always enjoy your posts and writings on your blog.
I just finished reading your article in Vertical magazine and couldn’t resist contacting you with my comments.
What a horrible situation for you. I’m severely confused as to why a Federal, as in a single national government agency, interprets the rules differently at each FSDO. It should be the same across the United States! How frustrating I’m sure this is for you.
This industry is tough enough as it is and for a single pilot, single aircraft operator, you’ve been extremely successful. Now this?
At least you got the temporary A160 but you shouldn’t have to have the radar altimeter installed at all! To me it’s very cut and dry: 135.160 does not apply to VFR aircraft weighing less than 2,950 pounds! Where’s the Misinterpretation?
I guess you can’t just cancel your installation appointment at Quantum in December, but hopefully you can get around paying for equipment you’ll never use.
Good luck to you Maria.

First, I have to say how gratifying it is to have been instrumental in a person deciding to learn how to fly helicopters. Wow. Just wow.

Second, it’s cut and dry to me, too! And most of the folks I spoke to that don’t happen to work at the FAA. And there’s nothing I’d like more than to cancel my December appointment with Quantum to get the radio altimeter installed.

But I wrote him a more informative response and I thought I’d share it here. It says a few things I couldn’t say in Vertical. (Or maybe they were in the 200 words that had to be left on the cutting room floor.)

Hi, Scott. Thanks for writing.

Unfortunately, every word of my Vertical piece is true. The FAA will NOT give me the waiver. They don’t care that my helicopter is small or VFR-only or or that the panel is full or that the rule was written in such a way to exclude R44s like mine. They do not operate logically. I worked with AOPA and an aviation attorney. I got my Congressman and one of my Senators involved. I had an email correspondence going with THREE men with the FAA in Washington who are responsible for making the rule. My lawyer spoke to people in Washington, too. They won’t budge. In fact, they told my lawyer that they’re going to rewrite the guidance so R44 helicopters can’t be excluded.

Problem is, medical helicopters crashed and people made noise at the FAA. The FAA needed a fix to turn down the heat. Radio altimeter makers promised a solution that would work and lobbied hard for it. They’re all over the comments for the regulation proposal. And since they have more time and money to throw at it, they won. The FAA bought into their Band Aid — or at least made us buy into it — whether it can help us or not. They didn’t seem to care that the real fix was better pilot training, less pressure on pilots to fly in IMC conditions, and a company culture that values safety over profits.

Understand this: the FAA doesn’t care about small operators or even pilots. They exist to regulate and ensure safety — or at least the illusion of safety. Your best chance of having a successful aviation career is to stay off their radar.

I pissed off a lot of people with my radio altimeter fight and I suspect they gave me the temporary waiver just to shut me up. I got a call from HAI the other day and they say they’re going to follow up. Too little, too late. But at least someone else will be making noise since I, like my fellow Part 135 Robinson owners, have given up.

I’m nearing the end of my career. I figure I have about 10 years left as a pilot. So I don’t mind throwing myself under the bus in an effort to seek fairness and logic. I don’t recommend you doing the same.

Unless HAI or someone else is successful in talking reason into the FAA on this matter, I’ll be plunking down $14,500 in December to have this useless instrument installed. And then I’ll pull the circuit breaker and let the panel stay dark so it doesn’t distract me from what’s outside the cockpit — which is where every VFR pilot should be looking.

And life will go on.

I’m fortunate in that even though it will take YEARS for me to earn that money back with Part 135 work, my cherry drying and frost work puts enough money in the bank to make the expenditure possible. Without that, I’d likely have to cease charter operations and possibly close up shop. I suspect others have found themselves in that situation. So much for government helping small businesses.

Thanks for your concern. Best wishes with your endeavors.

Maria

And that’s about all I have to say on the matter.

19 thoughts on “The FAA’s Irrational Application of a Rule

  1. Your ‘Vertical’ article was very interesting. I can fully understand your annoyance at having to buy and install expensive kit which you don’t need. Especially if the installation actually reduces your view!
    I thought that the FAA was a truly federal organisation, so why can an R44 pilot in Vegas get an exemption when your area, Spokane refuses you a LODA?

    I have looked at the history of this issue on various blogs and it seems the FAA started with good intent. An EMS helicopter flew into the Potomac on a VFR duty over a decade ago and someone thought that the crash might have been avoided had the helicopter been fitted with a radar altimeter.

    The worst helicopter crash in UK history happened in 1994 when an RAF Chinook, flying VFR, flew into a fog-covered hill on the Mull of Kintyre, killing all on board. 25 of those who died were senior intelligence personnel. The pilots were experienced ‘special ops’ aircrew. They flew into the hill on cruise power and the CH 47 was fitted with a radio altimeter.
    This implies that the possession of such kit does not necessarily guarantee safety.

    • A radio altimeter is a Band-Aid to solve a problem that is better solved with good pilot training. It will never tell me about obstacles in front of me — only how far I am from the ground. I fly in a mountainous area. If I were stupid enough to fly when I couldn’t see the terrain around me, a radio altimeter would not prevent me from crashing into rising terrain. The accident you mentioned is a perfect example of that.

      What I also didn’t mention here is how outrageous it is that they should be required for helicopters and not airplanes. Airplanes don’t crash into the ground in IMC? I guess there wasn’t enough noise about it happening to airplanes. Or maybe it’s the mistaken notion that helicopter operators are all rich and that this is just a minor expenditure for us.

      I’d love to see the statistics about how many small helicopter operators are driven out of business by this requirement. I know that before I started doing cherry drying work, my writing income was subsidizing my flying business. The writing income is pretty much gone at this point and the helicopter business has to pay for itself. My charter business alone could never support the helicopter in this major expenditure. I’m lucky I have the agricultural work to keep my business in the black.

  2. Agreed.
    The cost of the installation is excessive, given the likely negligible safety benefit in your operations.
    What next? Will they insist that you pay for an EFS with auto-inflating buoyancy bags just in case you have to autorotate into the Columbia river?! They might argue that you often fly over water…
    Our CAA has pursued a slightly different tactic when considering such retro-fits. Given that, in the UK, there are 3 helicopter ditchings for every million hours flown, and that helicopters fitted with EFS often capsize after landing on water anyhow, then any alleged benefit simply evaporates as the risk is so small and the outcome after deployment of the ‘safety feature’, so uncertain.

    They are always risks in flying. Pilots try to minimise these but they cannot be eliminated altogether. The greatest risk to small businesses like yours is the unreasonable imposition of massive one-off costs which bring little, if any, safety benefit.

    • Don’t laugh, but the FAA DOES require Part 91 tour operators to provide a life jacket on board for every occupant any time the helicopter flies over any size body of water even if it’s within gliding distance of land. The absurdity is so thick you can cut it with a knife.

      Yes, flying is a risky business. There comes a point where the amount of added “safety” equipment can easily overwhelm a single pilot with a heavy cockpit workload. But that doesn’t matter to regulators. They prescribe the fix and then move on to other things, leaving us to deal with the consequences.

  3. What a stupid rule! I While there are a number of situations where a radar alt makes a difference, day VFR isn’t one. Even so, why not allow a gps driven substitute? With the excellent accuracy of gps units these days you could get the benefits at a MUCH lower cost, perhaps even by a software-only update. This is not just big-government overreach, it’s typical FAA bureaucratic over-reaction.

  4. Hate to say it, but I just lost some respect for you. How can you be in this industry and NOT know about the Radalt issue for many years now—this has been in the running for about 5. And no, NO WHERE in 135.160 does it even mention HEMS. The rule says “The Administrator may authorize deviations”, with “may” being the operative word. You are not automatically entitled—effectively the waiver was written for Robinsons, and yet all we hear about is the Robinson pilots wanting respect from the rest of the industry.

    HAI did not drop the ball. While I am not an HAI employee, I am a member, and chair one of the committees, and was working with them on the Radalt issue, (I have nothing to do with HEMS). Whomever you spoke to at HAI was mis-informed if he said they were working with HEMS only, almost every HAI committee was working collectively on this issue as it affects us all.

    You get out of HAI what you put into it. They are indeed the voice of the small operator, maybe you should have read some of those “safety posters, manuals, letters, newsletters, magazines”, and you could have been part of the fight BEFORE the rule was promulgated instead of trying to “catch the horse now it has bolted”.

    • I’m not going to lose any sleep over an anonymous commenter losing respect for me. And I’m certainly not going to let one lecture me when he obviously doesn’t know all the facts.

  5. If you operate a helicopter under Part 135, the rule 135.160 states you may be granted a Letter of Deviation if you are under 2,950 lbs. This is applicable if there is no Radio Altimeter solution for your particular airframe. When the rule became effective in 2014 the FAA gave operators 3 years to comply with the rule, making the official start date 25 Apr 2017. After the rule was effective, Robinson developed a kit to install the Radio Altimeter in the R44 helicopter. The FAA wanted to be fair, so they wrote A160 OPSPEC to give those operators the same 3 year advantage that others had to comply. So effectively now, R44 operators have until October 24, 2018 to comply with the Radio Altimeter Rule. R44 operators need to contact your FSDO to get your Letter of Deviation. The LoD will expire on Oct 24, 2018 or when you get your Radio Altimeter installed, which ever occurs first. The LoD does not take away the requirement for equipping your R44. It is only a time delay. What you can do for a long term solution is apply for an exemption to 135.160. You will have to detail measures for an equivalent level of safety and explain how it is in the public’s best interest for you to be considered for the exemption. It’s a long shot but at the moment it’s all you have. There are people working very hard to resolve the issue. Unfortunately it takes time in our system to move the needle. If you have questions regarding applicability of the rule you can contact HAI.

    Maria, because your blog has followers and I feel it’s important to get correct information out, I posted this message for those who may be confused or need good information. It’s important to me that everyone have a good understanding of the rule.

  6. Whew! Lots to digest here.

    I certainly agree that a bad surprise is like an ugly baby — nobody wants to own it! And although not a part 135 operator, I am a pilot and I have worked in highly regulated industries my entire career, and know that if your business depends on it, you either use industry organizations or you keep current on all the regs yourself. (If you think aviation is bad, try working in nuclear!) Ideally, if your bottom line really depends on operating, you need to do both. Complacency is an error likely condition.

    So, that this was advanced in 2014 and you just now discovered it, is something you need to own (and you do in your article). Sounds like you have until December to work through a resolution. And it sounds like the FAA and HAI and possibly others are figuring out that they are going to have to make a course adjustment.

    So what I don’t understand is why all the name calling and hostility??

    HAI reached out to you when they didn’t have to. And it sounds like the poor guy suffered a bit of a beating from you even tho he was trying to do the right thing. As Rather Not indelicately said, you only get as much as you are willing to give.

    And as much as I don’t like regulation, I do see the value. We killed thousands of people every year before the OSHA laws were passed. And I believe that the people in federal agencies mean well; they are not evil little minions awaiting the perfect opportunity to screw you over. Sure, every organization has its wing nuts, but most people are doing their best.

    Maybe I’m too optimistic. I’m good with that.

    People make mistakes. I’m sure even you made at least one mistake in your life. If something isn’t right, seek to understand and then reach out to others. Get engaged in the process.

    In other words, stop whining and become a positive, productive member of your industry. Sucks that you got surprised and inconvenienced. Sorry to hear about that. Maybe you should rejoin HAI and get more small operators like yourself engaged in improving the industry.

    Playing the victim helps no one.

    • Well, this does explain why so many folks are coming out by.

      My experiences with HAI have not been positive — up until now. They have been very helpful and seem very concerned about this issue. Admittedly they have other small operators who are members and I would assume that their efforts are mostly to help them. But along the way, they may be helping me and I’m working closely with them when asked to help them.

      Thanks for letting me know about this.

  7. Still though, while a delay might be welcome, it doesn’t address whether or not the installation of such an expensive, heavy, single-function piece of avionics is a worthwhile safety addition to a light aircraft which can’t legally be certified to fly in actual IMC. A radar altimeter is a tool with only one useful function, one that could likely be closely duplicated at much lower cost and weight by implementing minor changes to existing modern GPS units which nearly all commercial helicopters will already have installed. Knowing your exact height above ground is an essential tool for precision IFR approaches and is very useful during night operations in limited visibility. Both of these are situations where a VFR-only certified aircraft such as an R-44 doesn’t belong, and is unlikely to encounter if being used prudently within its operating certificate limits.

    In my opinion and experience, this is a typical over-reaction on the part of the FAA and the usual result of their “safety theater” mindset and institutional culture. The actual safety benefit of any new rule or regulation is immaterial as is the unsupportable cost to the operators affected. The only important factor to the FAA bureaucracy is that they will be seen by their superiors and the politicians that fund their agency as having done SOMETHING about a perceived problem. It doesn’t matter that it’s the most effective thing, or even the wrong thing, they just have to have something to point to when there is any chance of blame from above. This is not to say that all FAA employees are deliberately malicious or ignorant, most of them realize how inappropriate and ineffective this kind of rule making is. It’s just that the system that they work within has essentially zero accountability towards the needs and concerns of the operators being regulated, while simultaneously being acutely sensitive and responsive to any form of criticism from higher up within their own structure.

    The FAA, like any bureaucracy in its normal state of affairs, is like a giant tortoise; slowly bull-dozing its way along, stubborn and hard to divert once it gets an idea as to direction. Like any good turtle it’s always primed and ready to yank in the limbs and just hunker down inside its shell for a good long time. It’s not going anywhere unless it’s sure that it’s safe to stick it neck out again. Once it does however, it’s right back to bull-dozing right along the same path unless something major affects it. The complaints of individual operators, no matter how valid, hardly register to the giant tortoise. They’re like a flock of little birds, they can peck and chirp all they want and the most they’ll do is get it to tuck its head in for a while. Nothing they do has any influence as to where the tortoise is heading. This is where organization such as AOPA and HAI serve an essential function, like it or not. Even their limited amount of influence upon the FAA and its often irrational decision making process is better than no influence at all. It’s a sad state of affairs that pilots and aircraft owners have to dip into our wallets solely for the purpose of hiring a “fixer” to help protect ourselves from our own over-zealous government, but that’s the way things work in DC. Or Oklahoma City, as the case may be.

  8. For what its worth, I own and fly a 1959 Bonanza V tail airplane. I am a member of AOPA for one reason. They advocate on my behalf to prevent over burdensome regulations and protect my right to fly my old airplane in America. Yes they have a nice magazine and the other benefits are useful, but I feel that if it weren’t for their voice in Washington my right to fly my airplane would be threatened or at least burdened by unnecessary oversight. If you believe in your cause you should support the voice that can help protect what is important to you. If you don’t use your voice then you will eventually have to stomach what gets handed down. People only see from their perspective. Only .01 percent of the worlds population are pilots. So the rules you operate by may be greatly influenced by someone who doesn’t fly or who has never flown. Just food for thought. Fly Safe.

  9. Government.
    Every rule and regulation in every sphere where government has influence is written with good intentions but always has unintended though predictable negative consequences.

    Maria,
    Politically you are significantly left of me on most issues.
    Here is a case where you have migrated toward my spot on the spectrum but you see the problem as an irrational application of a rule. I see the problem as creation of an irrational rule.
    Government is not the answer to most of life’s problems, yet people gladly let government take all the power it wants so they don’t have to be responsible for themselves and their neighbors.

    Thanks for listening,
    Keith Besherse

    • Although I am “left” on many issues, I am not left on all of them. For example, I support gun rights — with common sense training and registration requirements. (And no, I’m not going to discuss that here.) And I really don’t think too many people “gladly” let the government do anything. But yes, I will agree that people don’t want to take responsibility for their own actions anymore and would rather place blame on someone else than fix the underlying cause of a problem, which might be themselves.

      The problem with EMS (mostly) helicopters crashing in poor visibility conditions could have been solved with better training and a work environment that doesn’t pressure pilots to fly in dangerous conditions. It will not be fixed by requiring VFR-only operators to install costly equipment that won’t benefit their operations.

    • “Government is not the answer to most of life’s problems”

      True enough, but with important limitations.

      The power of government to regulate is the only way to solve certain problems that market forces are incapable or unwilling to address. If we leave it entirely up to the forces of pure capitalism and the microscopically narrow self interest of the corporations to regulate themselves there is an inevitable trajectory that always follows, one in which the public good always suffers. Asymptotic concentration of capital, consolidation of industries through leverage and collusion, always leading to monopolies and the subsequent abuse of the public to further corporate and private financial interests.

      The other problem with a pure market solution is that there is currently no objective way to put a fair market value on the public interest when it comes to intangibles, things like a pollution free environment, safe infrastructure, and the future public good. You can’t put an exact dollar amount on the value of clean air, or national parks, or a safe highway system. Left to itself, the market will always assign zero value to things like that, since they can’t be easily quantified for a quarterly report. The market also does a miserable job providing for future generations, since the ONLY focus is on how much money a decision will yield RIGHT NOW. There is no mechanism to reward current decision makers for wise long term decision making, only this quarter and perhaps next, at the most.

      While I am certainly no fan of supporting the expansion of gigantic bureaucracies at the public expense, I do see the value in having a source for decision making that is NOT explicitly profit driven, and at least nominally accountable to the public good. Can you imagine the chaos that would result if every airline set their own pilot training standards? Or if every car maker could determine what they considered a reasonable level of safety and pollution control? Or if there was no regulation of frequency and bandwidth for radios and electronic devices?

      Libertarian leaning as you might be, if you are honest with yourself you have to acknowledge that every society has to have at least some common regulatory authority. The argument, of course, is how much and in what area. We have all seen the abuse and unnecessary suffering that results when you go too far towards governmental control, with Venezuela and North Korea coming immediately to mind. On the other hand, our history in the U.S. shows just how bad things can get for a society when you allow the other extreme to occur. Without sufficient government control we saw the age of the Robber Barons, where the interests of the public and the individual worker were of zero consequence to those in power at the time. Personally, I consider that a historical era with uncomfortable parallels to todays political and economic situation. Regardless, if you allow ideology to dominate over pragmatism when it comes to choosing a level of government power, it always seems to end up with the public at large getting the short end of the stick.

What do you think?