Following several high-profile fatal accidents in revenue Part 91 flight operations, the NTSB Tuesday recommended that the FAA develop new safety standards for operators and that it tighten up surveillance and oversight of companies offering air tours, air combat, skydiving and tourist flights. The agency adopted a report that makes six recommendations to the FAA for improving revenue Part 91 operational safety, including closing regulatory loopholes and exemptions, giving inspectors better guidance for surveillance, developing a database of such operations and requiring companies to develop Safety Management Systems similar to those used by the airlines, but scaled to smaller operations.
The recommendations were spurred by a spate of accidents in which 45 people were killed and 10 injured in revenue flight operations conducted under Part 91. These include the Lockhart, Texas, commercial balloon accident that killed 16 in 2016 and two more recent accidents, the Collings Foundation B-17 crash at Windsor Locks, Connecticut, in which seven were killed in October 2019 and a skydiving crash in Hawaii in June 2019 that killed 11.
Investigations into these accidents, according to the NTSB, revealed a pattern of minimal FAA surveillance, insufficient pilot training and/or maintenance oversights. Also mentioned were two accidents that the NTSB deemed as operators using regulatory loopholes to avoid more stringent compliance. One involved an air combat operation in California that billed itself as a Part 61 flight school and another, the FlyNyon helicopter crash in New York in 2018 that was flown under air photography exemptions. Five passengers drowned when the Eurocopter AS350 landed in the East River after a power failure. The aircraft was operated with its doors off for photography. Passengers were secured with tethers that kept them from exiting the aircraft when it inverted in the water.
The NTSB reiterated open recommendations it has made in the past, including urging the FAA to develop a consistent policy to bring air tour operators under one consistent national standard, similar to Part 135, and to eliminate the exception in Part 135.1, which limits compliance for flights operating to and from the same airport within 25 miles. It also reiterated its call for Safety Management Systems. These are required of Part 121 airline operations, but are voluntary for other operators. They have not been well received in the industry. Of some 2000 Part 135 companies that could qualify for SMS, only 17 have adopted it and another 158 have program development in progress, according to the NTSB.
Board vice-chairman Bruce Landsberg noted that the Collings Foundation had an SMS program for its B-17 operation, which had been stipulated by the FAA to approve flights under the Living History Flight Exemptions program. The program allows vintage warbirds to carry revenue-paying passengers without complying with Part 135 requirements. However, the NTSB investigation revealed that the FAA never inspected Collings to determine compliance. “On the SMS business, the B-17 crash in Windsor Locks, the Collings Foundation was required as part of their waiver to have an SMS. But the FAA said it did not have any ability to provide oversight on this and this seems like an oxymoron to me. How can it be that it’s a requirement for your exemption and yet the FAA is not able to provide oversight to see that you are actually doing it?” Landsberg said. The investigation revealed that FAA conducted no direct oversight of Collings’ B-17 program and actually ignored the foundation’s questions about regulatory issues.
Some of the board’s discussion turned on how the flying public can assess whether an operator is safe or has a good safety record. Member Jennifer Homendy noted that passengers who fly on Part 121 scheduled airlines expect a certain level of safety and she acknowledged that someone flying on an air tour or skydiving aircraft might not necessarily expect the same level of safety. “They know there is a risk of jumping out of an airplane. But what they are not thinking about is that the airplane is going crash. It is maintained? Do they have a certificate?” she said. “If you get on a vintage aircraft, how do you know? What is your go-to? For buses, there is a website for [bus safety]. Is there anything like that in aviation?” she asked the NTSB staff. The answer is no.
Although the NTSB is not recommending significant new regulation of revenue Part 91 flights, its investigations revealed that existing regulations are simply not being observed and accidents were a consequence of this. For example, egregious maintenance issues were uncovered in the Hawaii skydiving aircraft crash and maintenance shortfalls were also an issue in the Collings crash. In both cases, regulatory noncompliance may be factors in the crashes, according to the NTSB. (Final reports on those accidents aren’t available yet.)
Although it offered no specifics on what an all-encompassing safety standard might be, the board did discuss a regulation adopted by New Zealand’s CAA that offers oversight on what it calls Adventure Aviation. As in the U.S., these operations fit outside the usual categories and are defined by the regulation as flights involving aerobatics. Presumably, this would address air combat operations.
The NTSB’s final report on its recommendations for Part 91 flights will be available online in a few weeks, according to the agency.
The U.S. National Transportation Safety Board held a web-televised hearing March 23 on the safety of passenger-carrying flights conducted under 14 CFR Part 91 for which someone gets paid. The fact that pilots and aircraft operators can be compensated for some flights under Part 91 should come as no surprise to U.S. aviators; the NTSB’s analysis and recommendations might.
Passenger-carrying Part 91 flights for which the pilot and/or operator may be paid include, for example, flight training, nonstop air tours within 25 miles of the airport at which the flight takes off and lands, balloon flights, air tours in gliders, heritage flights in historical aircraft, and others. To review the safety of these flights, NTSB focused on eight accidents that took place over a period of several years, seemed to draw the worst possible conclusions from each accident, glossed over applicable regulations, and recommended that FAA use this analysis as the basis to apply airline-like thinking and requirements to these Part 91 operations.
Under friendly questioning by Board members, NTSB staff stated that Part 91 flights for pay are conducted without regulations applying to pilot training, aircraft maintenance, alcohol and drug use, or medical certification. Under gentle prodding by Vice-Chairman Bruce Landsberg, staff clarified that prohibitions against alcohol and drug use apply to part 91 operations; it is the alcohol and drug test regime applied to airlines and charter operations that does not apply to Part 91. Staff were not asked to clarify, and did not clarify, that Part 91 flights are subject to regulations in all of the other areas they mentioned, too.
NTSB’s hearing was almost completely devoid of contextualizing information. The only contextual information was provided by Board Chairman Robert Sumwalt, who noted that one of the eight accidents analyzed by NTSB, the Lockhart balloon accident, resulted in the largest loss of life among paid Part 91 operations since 2009, a total of 16 fatalities. The NTSB staff failed to mention the thousands or tens of thousands of paid Part 91 flights that take place safely each year, a point that Board Member Landsberg also called them on. NTSB staff also did not put Part 91 operations — neither the small subset under consideration in the March 23 hearing nor the much larger set of Part 91 operations in general — in the context of overall civil aviation safety. Let’s consider that briefly.
Safety is the desired result of risk management. The classic definition of risk is: the probability of a bad thing multiplied by the expected magnitude of the consequences if the bad thing happens. We make reasoned risk decisions by assessing how likely a bad thing is, what the consequences will be if it happens, and multiplying the two. A high consequence event that can’t happen presents zero risk; an event that is certain to happen but that presents no negative consequences also presents zero risk.
The crash of a single airliner can result in 400 or more fatalities. The crash of a medium sized single aisle jet can result in 20 to 200 fatalities. Those rough numbers help contextualize the magnitude of the harm term in the definition of civil aviation risk.
FAA has worked mightily for decades to drive down the probability of airline accidents because that’s where the greatest risk exists; preventing one airline accident lowers the overall risk of air transportation as much as preventing 25 Lockhart-sized balloon crashes, and there has been only one of those in modern times.
Chairman Sumwalt also noted that several of the eight accidents analyzed by NTSB staff involved what he called “skirting the rules.” Under the Chairman’s friendly questioning, NTSB staff members explained that some of the eight accidents occurred, in their opinion, because aircraft operators acted outside the intent of the existing rules. Neither the Chairman nor the staff acknowledged that bad actors will always be with us; no rule is so tight that it cannot be broken; trying to make an unbreakable rule risks breaking the operators who try to follow it.
NTSB has one job: To recommend ways to improve transportation safety. NTSB has no duty to consider the costs of its recommendations nor to estimate the benefits that might result in the real world. This is why NTSB has no rulemaking power; it makes recommendations for FAA to consider because FAA, having the power to make regulations, is required by Congress to take into account the costs and benefits of it’s actions and to consider how best to reconcile conflicting legitimate interests affected by those actions.
In the context of U.S. civil aviation safety, considering where the risk is and how best to reduce it, and recognizing that, while aircraft are safest on the ground, that’s not what aircraft are for, NTSB’s report and recommendations on the safety of the small number of Part 91 operations that can legally be conducted for pay takes aim at a fly with a big Space X rocket. NTSB’s March 23 public telecast, conducted with trappings of a court trial (right down to the gavel) but none of the evidentiary safeguards of one, seems like an attempt to whip up public opinion to pressure FAA into acting as if it, too, had but one mission, to do what NTSB says. Thankfully, that is not how our system works.
Joe C: You make as reasoned argument for the separation of the NTSB and the FAA; the ability of operators to find loopholes; the role risk plays in rulemaking and certification base selection; and the fact that if an operator doesn’t abide by the applicable regulations (or offers only lip service to them) that operator could slip into an unsafe operation; as I’ve ever seen. Good for you for dialing into the key points and hammering them so effectively home.
Aviation is just one place where rules just keep getting added without any acknowledgement that the reason for more rules is usually incidents in which rules were already broken. Combine that with an ignorant and caustic attitude towards money, and this is where you get.
Sadly, it seems the message just doesn’t get through to those with titles.
Correction: The alcohol and drug test regime applied to airlines and charter operations that does not apply to most Part 91 operations; it does apply to fractional ownership operations conducted un Part 91 Subpart K.
“… I’m from the Government and I here to ‘help’..” words NO one ever wants to hear.
Joe C.
I am going to use my name in responding to the cheerleading comment which you posted April 24 to AVweb’s April 23 Post by Peter Bertorelli reporting the NTSB special Board hearing on Part 91 for pay safety regulations. We should stand by name when we make unsolicited comments on public internet websites in the aviation industry which comment on obvious safety issues which call back to the days before the Federal Aviation Reauthorization Act of 1996. Some people seem intent on insisting that there has never been any problem in the FAA with the dual mission created by the original Federal Aviation Act of 1958 or the system of FAA and Industry back watching which arose prior to the 1996 restatement of safety as the FAA’s sole legitimate mission.
As the recent disclosure of information from the investigation of the Lion Air and Ethiopian Airlines 737 Max 8 accidents makes it clear that the culture created at the FAA in giving too much leeway to a wide variety of aviation interests in following consistent safety regulations continues to thrive as an accommodation between safety and promotion. The 1996 Reauthorization Act may have changed the practice of following dual and conflicting interests but the practice still lives as an accommodation won over time and tradition in aviation – FAA relationship.
The 45 decedents and 10 injured parties in the accidents which stirred the NTSB hearing and the Safety Recommendation would strongly disagree with your assertion of the validity and usage of risk analysis in part 91 flights, such as parachute jumping flights such as was involved in the July 21, 2019 Accident at Dillingham Field on Oahu. Should the FAA have not addressed the Safety Recommendations in 2008 arising out of the 2006 Sullivan, Missouri Twin Otter Parachute Flight accident in 2008, just because there were not 200, 300 or 400 passengers involved. Is maintenance regulation that protects less than a full airline load of passengers less important for safe aviation. That is your argument?
Are maintenance regulations for a Dreamliner any less important to the families of the Oahu 11 than they are to the Smith and Jones families getting on an American Airlines flight in Chicago tomorrow? Are they any less critical to the safety and security of the 45 killed in the Part 91 operations that crashed and caused the March 23 hearing to be held. In Oahu why did the oversight for the Beech 90 not require that the aileron be airworthy or that the engines be at full operating power. Why is a repeated flight regime of climbs to maximum operating altitudes followed by many, many emergency descent procedures make the airworthiness less critical than the 400 or 200 fatalities you claim are so critical. Your arguments are false and I hate to raise this point since it was one of your less than applicable points of disagreements with the job done by the NTSB, your comments were wildly out of context for the facts of the accidents involved.
Here are the facts from Dillingham. An aircraft rebuilt and recertified after a previous parachute flight accident in California. On the date of the accident, maintenance had been neglected to the point of a non-functional aileron and two engines producing less than optimum thrust. This machine was being operated by a low time pilot with a history of knife edge passes down the airfield to enhance the jumping passengers thrill experience. You cannot explain this away in the same argument where you assert that the FAA has to justify the cost of each safety oversight improvement and therefore should not have considered the 2008 recommendations. As you assert about the NTSB, the FAA has one job that takes priority, “the mission of the Federal Aviation Administration is to provide the safest, most efficient aerospace system in the world.”
See, FAA.gov/understanding/the/faa pg2
Here is your unaddressed, but amazingly simple answer to the NTSB hearing. The NTSB did it’s job. The NTSB assessed the Oahu accident and the others within the Part 91, but treated less significantly by the law as a failure by the FAA to demand the equal application of the law and FAA regulations to different flight operations that engender the same risks and the same outcome for ignoring those risks. In these cases equal application would have prevented 45 deaths. In another year there might be 45 deaths caused again by the unequal application of simple maintenance and pilot oversight regulations. The might be 90. In two years maybe 45 more. Eventually you might be satisfied, maybe we will get to 200 or 400. Then you would probably still not agree, you would find another excuse for the FAA’s failure.
Finally and perhaps most maddeningly, you state in the opening of your post that the NTSB painted these accidents discussed at the March 23, 2021 with, ” to draw the worst possible conclusions from these actions.” You must work for the FAA or you must be a less than compassionate professional aviator who has allowed life to drain you of reason or concern for the families of the dead. Really, can you draw worse conclusions of these:
– Several young men died who were highly trained and valuable technical assets in the United States military. A US Marine and a Navy Seal-Cyber Warrior
– A newly married couple died.
– A young talented professional videographer from Hawaii.
– A young outgoing jump instructor with an infectious personality.
– A jumpmaster with a family and years of experience
– A young father leaving behind a 13 year old daughter.
– A young man who recently escaped the war in the Donbas, Ukraine and who loved America.
Joe C. whoever you are, if you are an airman, you know the losses above are far worse than the NTSB using truth to draw the conclusion that the FAA did not do it’s job. Enough excuses.
Jerry,
I think the insistence on names here is pernicious, counter productive, and indicative of a point of view blinded by bureaucratic institutionalism. When I hear that argument, I wonder what the motivation is, or if it it just comes from a mind closed by being in a terrible bubble for too long.
Do you think that there are ideas which should not be heard? Do you need fear to stop people from disagreeing with you? I would hope not. Concentrate on the ideas, and not the people. If your motivation is truth, the people behind the words will not matter.
Jerry,
Thanks very much for your obviously heart-felt comments. Permit me to make three points in response:
– My comments have nothing to do with FAA’s institutional culture or administrative mandate. The requirement to justify regulations on a cost-benefit basis is rooted in the Administrative Procedure Act enacted by Congress in 1946 and more recent statutes and Executive Orders that strengthen the protections rooted in the APA.
– Every decent human being mourns the loss of every brother and sister human in disaster and otherwise. We do not differ in that regard, no matter what positions we may take on issues or the different ways we may propose to make things better.
– Given unlimited resources, FAA could regulate based on appeals to emotion. As Matt W, Jeff M, and Eric W note below, resources are not unlimited; both FAA’s and industry’s resources are quite limited, particularly in the small niche segments of Part 91 operations on which NTSB focused yesterday. NTSB’s recommendations would force FAA to reprioritize scare resources (likely to become more scarce in future years, not less so) away from comparatively high risk, high benefit activities to the comparatively low risk, low benefit activities NTSB discussed yesterday. What would a veteran FAA hand prefer: To devote FAA resources to fixing apparent weaknesses in the delegation regime, transport category aircraft certification, drone integration, and upgrades to ATC equipment and procedures, or redirect those resources to headline-making accidents that are not representative of the safety of compensated Part 91 operations? In my opinion, while emotion may be captured by headlines, reason counsels the other course. I hope, on reflection, you will be persuaded of this as well; if not, I hope too that we can disagree and discuss reasonably our bases for believing as we do.
Joe C.
Drug testing also applies to pt 91 air tour operations within 25 miles of airport.
Not only to the pilots but to the maintenance personnel. The IA I work with hired a company to handle his drug testing requirement (because of a couple of Part 91 airplanes he cares for require it) and they fell on their sword. The boys on Independence Ave tried to fry him for what was mostly an administrative faux pas.
I think it’s disingenuous to lump a fatal balloon accident in there. It makes me question everything said.
Regarding large warbirds – they weren’t safe in WW2, and they’re less safe 75+ years later. Big engines always leak gas and oil, which is a fire hazard. Passengers should be limited to people who can evaluate the risk – other pilots.
Big engines always leak gas?
Humm – never had seen any.
Ah, the endless battle between “safety must be the overriding goal of life, excluding all other considerations” and “risk is only one component of life, and not the dominant one”.
It’s unfortunate that there will always be those operators who take advantage of lapses in oversight. I am a pilot with lots of experience in giving what was legal to do sightseeing rides within 25 miles of airport. Due to rule changes that type of operation is now illegal, so some operators use flight instruction/introduction flight as a way around that. I also have an extensive background in flying skydivers. I have refused to fly in the past due to maintenance issues that have come up. I also have refused or turned down flying demo jumps because I felt they did not meet the rules. I still fly skydivers occasionally because I enjoy doing so. Now I fly jets for a management company. Knowing the maintenance requirements for jets (I am also an A&P) putting pt 135 standards to the pt 91 ops would pretty much put that part of the industry out of business. Keep in mind the airlines have gotten away for years, with bankruptcy and government protection, of not charging fares that cover the actual cost of operating. Small companies cannot do that since they do not have that protection. And I have already stated what I think of SMS. Consider this, if you actually want FAA inspectors to be on site to oversee pt 91 ops like they do with pt121 then you need to write your congressperson or senator to make sure the FAA is adequately funded and staffed to do so.
I’m the Chief Pilot in a small 135 operation. Our FSDO has been really good over the years but getting a 135 flight check scheduled over the past couple years has been extremely difficult to get in a timely manner (and these are TIME PRESCRIBED checks!) The FAA has been trying to get out of the flight check business for years now. The number of flight current POI’s has dwindled. They have outsourced more and more to DPEs and Flight Safety– even for initial CFI’s which they used to really want to do first hand. What’s worse is they haven’t been replacing retired DPEs in our area. When I asked why they said they didn’t have the people to do the 2 year checks on the DPEs they have! The idea of adding in (135/121 like) regs and supervision to the fringe 91 operations mentioned is a non-starter given the current state of the FAA. I should also note, the NTSB is a fine group to be chiming in given their un-accounted for and absolutely abysmal completion rate of Final Accident Reports. They only seem to complete the ‘news worthy’ accidents like FlyNyon and Kobe’s crash. They are 3 and 4 years behind on some of the some of the least complicated crashes and reports still not released. It’s so bad that that they even killed off the part of the NTSB website that showed what reports were ‘Nearing Completion’ because they never actually released final reports on the ones expecting to be released in the next month even a year later! The NTSB should get their own house in order!
Of course, the NTSB said nothing, once again, about how the ridiculous and unnecessary costs of operating aircraft at all brought about by decades of the FAA seeing cost justification as the enemy and having lost a mission to promote aviation at all, contribute to the problem.
Did they recommend to the IRS that their rule limiting deductibility for flight training, prompted by the retirement of Bob Dole was both petty and dangerous?
No one is getting rich off of any of the operations being discussed here in spite of the insane costs of operations. It’s more profitable and less risky to run a frigging laundromat. If they are so worried about economic incentives, they should be looking at all the things they’ve done to make spending time and money on safety a decision a huge decision. I’d suggest we’d have many more car accidents if replacing the brakes on automobiles required hours of compliance and thousands of dollars.
“the NTSB Tuesday recommended that the FAA develop new safety standards for operators and that it tighten up surveillance and oversight of companies offering air tours, air combat, skydiving and tourist flights.”
Another predictable answer to accident chain of events. Develop new rules through a bureaucratic government agency who cannot provide minimal surveillance of the existing regs. In the case of Nine-o-Nine, even if they responded to Collings email requests, what FAA inspector would have the practical knowledge to evaluate living history compliance regarding maintenance protocol? Where does FAA surveillance start? A ramp check of the airplane? Looking for what? An unannounced visit to the location of the maintenance records? Looking at logbook entries or SMS documentation? A ramp check at some fly-in venue asking a volunteer about seat belt installations?
.
Its one thing to recommend more FAA surveillance, more rules, etc. However, there is no practical way to implement it. This is more political window dressing of appeasement in an attempt to placate the public’s natural angry response when a bunch of people get killed on a ride they paid for due to long term maintenance negligence and/or pilot error under the oversight of another government agency justifying their own existence including taking years for a probable cause. And aviation in general gets more prohibitively expensive as a result. So far, present policies have little value in catching GA outliers because there is no practical way of enforcement. Adding more unenforceable recommendations from one federal agency to another will not change that.