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.

FAR 107 Explained

I wrote a book last week and it’s available now.

Way back in 2012, I self-published three books. The first was the same kind of computer how-to book I’d been writing since 1991. It was about iBooks Author software and was the first book out about it. It sold about 3,000 copies and continues to sell to this day. The other two were less successful. One, about sorting data in Excel, sold a few hundred copies. The other, about making movies, sold about 500 copies. All of them were available in multiple formats, including print.

I was on track to release a book a month when the idiot I was married to decided he needed a mommy more than a wife and found one online. My life got thrown up into the air. Soon I was busy with a divorce and moving and building new home in another state. My goal of publishing a series of short books got put on the back burner. And then my flying business really took off and I didn’t see a real need to revisit that plan.

Until the other day.

I got a call from a local drone enthusiast — that’s what he called himself. He’d seen on Facebook that Flying M Air, my company, had begun doing drone photography. He had some questions about it. I had some time so we chatted on the phone.

During the course of the conversation, he asked me two regulation-related questions that I didn’t know the answer for. And that bothered me. You see, I’d done everything I was supposed to do to get a remote pilot certificate with a small unmanned aircraft system (small UAS) rating. I’d satisfied the FAA’s requirements and had a printout of my temporary certificate sitting on my desk. I should know the answers to his questions, but I didn’t.

So a few days later, when I found myself sitting around the house on a rainy day, I looked up the answers. And then I started a careful re-reading FAR Part 107, which is the FAA regulations for commercial small UAS (AKA drone) flying. And I realized that just like all the other FARs, Part 107 was written in the same government-style “legalese,” with the usual exceptions and cross-references that make them nearly impossible to understand.

And that’s when I realized that some folks might find it helpful to read a translation, in plain English, so they could actually understand the rules.

So I wrote one.

Part 107 Explained
Here’s the book cover. A friend asked how I got the photo. I basically flew my Mavic to face me on my deck early in the morning when the light was good. I’ll get a new shot when the fruit trees are in bloom for the next edition.

FAR Part 107 Explained: A Definitive Guide for Serious Drone Pilots is the result.

I started with the actual text of Part 107 and inserted my translation, in red type, beneath each section or paragraph. Along the way, I provided in-document links to other sections of Part 107 and web links to other FARs and documents that Part 107 refers to. I even included links to helpful web pages for registering a drone, reporting an accident, taking the course I did to satisfy training requirements, and changing your name or address in FAA records.

The resulting document isn’t long — after all, Part 107 is relatively short — but it is complete and works as a stand-alone guide to Part 107.

I generated two formats (so far): Apple iTunes bookstore and Amazon Kindle. I submitted to Apple on Friday and Amazon yesterday. (Guess which one was available first?)

In any case, if you’re interested in flying your small UAS/drone for compensation, I hope you’ll consider investing $6.99 for my book. Right now, it’s available as an ebook only; if there’s a big demand for it, I’ll consider a print version. You can buy it on Amazon.com or buy it from Apple.

And I have to admit that it feels good to be writing books again, even if they’re short ones like this.

The Rules about Flying over Wilderness Areas

My answer to a reader’s question.

ChartA week or two ago, I got an email message from a reader who had read my November 2011 post, “A Few Aerial Views from Today’s Flight.” That post shows off a bunch of photos captured by my helicopter’s “nose cam,” a GoPro Hero2 camera I sometimes use in flight. The photos include views of the Verde and Salt Rivers north and east of Phoenix, including some of the lakes along the rivers. My reader noticed, after consulting some aeronautical charts, that much of the area I’d flown over was designated as wilderness area.

This reader, who asked to remain anonymous and not be quoted verbatim, was wondering about “bending” rules. Although he mentioned the June 2012 wire strike helicopter crash in the Verde River area, he wasn’t interested in the safety aspects of maintaining a high enough altitude to clear obstacles. He was interested in my interpretation of the rule about flying at least 2,000 feet above wilderness areas.

The “Rule”

Before I interpret the rule, it’s a good idea to know exactly what the rule is and where it can be found.

It’s interesting to note that a search for “wilderness” and “2,000 feet” in the Federal Aviation Regulations (FARs) does not provide any guidance related to operations over charted wilderness areas. The FARs are the rules pilots are required to comply with.

A search of the Aeronautics Information Manual (AIM) for “wilderness” results in “Part 7-4-6: Flights Over Charted U.S. Wildlife Refuges, Parks, and Forest Service Areas.” Paragraph b pertains to this topic:

b. Pilots are requested to maintain a minimum altitude of 2,000 feet above the surface of the following: National Parks, Monuments, Seashores, Lakeshores, Recreation Areas and Scenic Riverways administered by the National Park Service, National Wildlife Refuges, Big Game Refuges, Game Ranges and Wildlife Ranges administered by the U.S. Fish and Wildlife Service, and Wilderness and Primitive areas administered by the U.S. Forest Service.

A note adds this:

FAA Advisory Circular AC 91-36, Visual Flight Rules (VFR) Flight Over Noise-Sensitive Areas, defines the surface of a national park area (including parks, forests, primitive areas, wilderness areas, recreational areas, national seashores, national monuments, national lakeshores, and national wildlife refuge and range areas) as: the highest terrain within 2,000 feet laterally of the route of flight, or the upper-most rim of a canyon or valley.

First Glance Interpretation

At first glance, the “rule” seems pretty straightforward: you’re supposed to fly at least 2,000 feet above the ground in any charted wilderness area, etc.

User's Guide ImageCharts, by the way, make it very easy to identify these areas. They’re normally surrounded by a blue line that has dots on the inside of the area. This entry from the Aeronautical Chart User’s Guide shows what to look for. And this chart excerpt from the Phoenix terminal area chart (TAC) illustrates how two areas look on an actual chart: The Hells Canyon Wilderness area (left) and Lake Pleasant Bald Eagle Breeding Area (right):

Wilderness Examples

The Advisory Circular note goes a bit further to explain that the lowest point in the wilderness area that you should consider when setting your altitude is the highest point 2,000 feet from your aircraft in any direction. So if you’re flying over a 1,000 foot deep canyon and the canyon is only 1,500 feet wide, you should be 2,000 feet above the canyon walls — not 2,000 feet over the bottom of the canyon.

It’s important to note that a requirement like this is extremely difficult for helicopter pilots to deal with, primarily because helicopters normally operate 500 to 1,000 feet above the ground. We seldom fly 2,000 feet above anything — that’s nosebleed territory for us. That’s also where small planes might be operating — and we’re trained to stay away from them. So when you ask a helicopter pilot to fly 2,000 feet above the ground, we’re not going to like it.

But Is It A Rule?

But the real question should be, is this really a rule? Something that must be followed? Something that could get you in trouble with the FAA if you ignore it?

I can offer two arguments for why pilots are not required to fly 2,000 feet above charted wilderness areas:

  • The “rule” is not included in the FARs, which are the regulations governing flight in the U.S. Instead, it’s described in the AIM, which is informational in nature.
  • The language of the “rule” says that “Pilots are requested to maintain a minimum altitude of 2,000 feet above the surface…” Surely you can’t confuse a “request” with a “requirement.”

Before I go any further, I want to point out paragraph c of the same AIM part (7-4-6):

Federal statues prohibit certain types of flight activity and/or provide altitude restrictions over designated U.S. Wildlife Refuges, Parks, and Forest Service Areas. These designated areas, for example: Boundary Waters Canoe Wilderness Areas, Minnesota; Haleakala National Park, Hawaii; Yosemite National Park, California; and Grand Canyon National Park, Arizona, are charted on Sectional Charts.

Note the use of the word “prohibit” in this paragraph. With a little bit of effort, you can find the rules for these areas in the FARs or Special Federal Aviation Regulations (SFARs). For example, FAR 93 Subpart U and SFAR 50-2 govern special regulations over Grand Canyon National Park. In the case of Yosemite the rule is printed right on the chart:

Yosemite on Chart

In case you can’t read it:

Public Law 100-91 prohibits flight of VFR helicopters or fixed-wing aircraft below 2000 feet above the surface of Yosemite National Park. “Surface” refers to the highest terrain within the park within 2000 feet laterally of the route of flight or within the uppermost rim of the Yosemite Valley.

Pretty clear, no?

My point is, don’t get the idea that a pilot can ignore charted wilderness areas. That simply isn’t true. You need to know whether an area has its own special flight regulations before even considering “breaking” the 2,000-foot “rule.”

What’s Right?

Now you know my interpretation. But I didn’t get this on my own. It was pointed out to me by my primary flight instructor years ago. Pilots who take the time to look up and read the “rules” can make their own conclusions.

The reader who queried me about this obviously realized from the photos I shared on my blog post that I must have been flying lower than 2,000 feet above the ground in a charted wilderness area. Denying I did so when there’s photographic evidence to the contrary would be dishonest, insulting to my readers, and a waste of time.

But is it right to fly low over these areas? Because it’s not a regulation in most wilderness areas, it becomes an ethical decision on the part of the pilot.

First, consider why charted wilderness areas exist. The government is protecting these areas, for whatever reason. Usually, it’s because they don’t want aircraft noise to interfere with wildlife — especially wildlife breeding and habitat maintenance. Sometimes its because they want “natural” areas to be kept quiet for visitors trying to enjoy the beauty of nature in peace.

How do you feel about preserving quiet in these areas? Is it important to you? If you were on the ground, how would you feel if a helicopter or plane buzzed by at 500 or 1,000 feet? Would it bother you? How do you think it affects the people on the ground? People camping, fishing, hiking, meditating?

As the person who contacted me pointed out, when he flew in the area, he didn’t see a person for miles. So who would he be bothering?

The one thing I can say with certainty is this: If pilots typically “busted a wilderness area” by flying low through it and enough people on the ground noticed and complained about it, it’s far more likely that the government will respond by establishing a real rule to prevent it. Yes, at one time people were allowed to fly low-level through the Grand Canyon and Yosemite valley. But when enough complaints came in, regulations were written to make such activity illegal.

Would you want to see that happen with all the wilderness areas on the charts?

I know I wouldn’t.