Regulation vs. Common Sense

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Aviation regulation theory couldn’t be simpler. The freckle-necked masses aren’t expert enough to assess the relative risks in boarding a flying machine so we, as a society, allow the government to establish certain standards and rules designed to eliminate the most egregious practices that people trying to make money in the flying game will, quite naturally, engage in. Then, as predictably as the sun rising tomorrow, we bitch and moan about government interference.

Yet regulation is why, in part, modern aviation—even the relatively wild west of general aviation—is as safe as it is. The worst practices are kept at bay by the long arm of the FAA. Except, sometimes not. That’s why the NTSB issued an urgent safety recommendation Monday urging the FAA to prohibit commercial flights in aircraft where passengers aren’t equipped with quick-release restraints. This seems intuitively obvious, but it apparently wasn’t to FlyNYON, the operator of doors-off helicopter tours around New York city. Five people drowned last week when the helicopter they were riding autorotated into the East River after an engine failure and non-quick release harnesses kept them from egressing after the helo inverted.

The NTSB’s investigation soon revealed that the aircraft was equipped with harnesses of the tour operator’s own design that had not been inspected by the FAA. This raises some sticky regulatory issues. Did that constitute an unauthorized modification of the aircraft or will the attorney for the IA who signed off the annual argue that it was some kind of supplemental restraint not subject to FAR 27.785, which requires restraints with a single-point release? Technically, the harnesses had a single-point release, it just happened to be inoperable by the passenger without a knife. I won't wade into the swamp of TSOs.

How could this slip through the regulatory cracks? One reason is that tour companies operate under Part 91, in a netherworld somewhere south of Part 135. For-hire tour operators are required to have pilot drug testing programs, but they don’t need defined op specs like other for-hire businesses. They operate under specific Letters of Agreement, the FAA’s all-purpose catchall strategy when both the industry and agency agree that more forceful regulation isn’t needed.

So far, so good. But this means the tour operators are on their own to exercise good judgment and common sense in a relatively unfettered commercial air business. One unavoidable question is this: Would an FAA inspector examining that harness rig put the kibosh on it? I’m gonna go with yes.

And thus the regulatory gap and the basis of the NTSB’s urgent safety recommendation. Here we reach a philosophical divide. On Monday, we put up a Question of the Week asking if more regulation is needed, specifically banning doors-off flights. Neither the FAA nor the NTSB have gone quite that far. Yet. More than a third of readers said such flights shouldn’t be banned and that passengers are on their own to assess risk based on informed consent.

I agree they shouldn’t be banned, but given what I view as a serious safety breach, either the LOAs should be hardened to require inspections or tour operators need to be held to a higher basic regulatory standard. There’s always a danger in knee-jerking toward new regulation on the basis of a single occurrence and regulation has to balance the public interest against chilling commercial vitality. But as I mentioned in last week’s blog, it’s unrealistic to think those passengers could have reasonably assessed the risk they were about to take. So how Darwinian do you want to be?

Every Saturday morning in the U.S., thousands of unsuspecting passengers sign up for tandem skydives. The perceived risk is so high that they sign multi-page waivers and the FAA allows the industry to exist in its own laissez-faire bubble. The demonstrated risk is rather lower. Still, inspectors do show up to have a look at these operations, examine the airplanes and look over the maintenance logs. Even though minimal, these inspections are sometimes capricious and intrusive because FAA inspectors can do that if they want. It appears to me that air tour operators don’t even get that much attention. If they did, maybe someone would have squawked those harnesses. 

Comments (13)

I await the quick release that releases ahead of its time.

Maybe but one pax will inadvertently activate his release and then follow the camera out the door as the camera leaves his hands and he reaches after it. The rest will be saved. But traumatized by what they just saw.

The folks down below, if not squashed, might also be a tad shook up.

Lawsuits will ensure. Regulations will ensue.

We have met the enemy. He are us.

Posted by: Jeff Land | March 20, 2018 7:51 PM    Report this comment

Unfortunately, I can see more regulation or even worse legislation arising out of this tragedy. After all the worlds greatest aviation authority, upChuck Schumer is on the case.

Using a locking carabiner or other fastening system, on its face looks like a smart idea. Then having a knife somewhere just in case, also looks like a smart idea. However, smart ideas need to be thoroughly researched and failure modes determined. If that had been done, we would not be having this discussion. Nobody took into consideration the Oh $*#t! factor nor the ability of the user to quickly doff the restraint system under extremely adverse survival conditions. Too much was left to chance or gut feeling, not a properly engineered and executed restraint system.

Having been trained in high vertical rescues, I cringe when I see some of the tourist trap operations conducting elevated operations with questionable safety equipment and practices. When I lived in a tourist town, I quickly learned that people on vacation tend to leave their common sense and good judgment at home. Sometimes they do dangerous things that go wrong. Then the first responders have to go out and rescue their bent and hurting bodies. Sadly this was a case of the worst call for a responder, a recovery. A truly sad time for the victims and their families.

Hopefully, saner heads will prevail, and the lessons learned will be applied to improved safety consciousness for the helicopter tour industry.

Posted by: Leo LeBoeuf | March 20, 2018 8:36 PM    Report this comment

"... improved safety consciousness for the helicopter tour industry." The saga of fixing stupid.

Posted by: Rafael Sierra | March 20, 2018 10:29 PM    Report this comment

Everybody is focused on the fallacious design of the 'safety' harness' ... I wonder about the design of the floats.

Looks like FAR 136 made floats mandatory in 2008. What were the mythical 'they' thinking requiring such small emergency floats on the bottom of a lightweight machine with a high center of rotating mass? Did they consider hitting the water hard in an autorotation mode? A lot of good that did here ... other than keeping the strapped in occupants in close formation but upside down for subsequent recovery. I know that many helicopters are purpose built as amphibians but something caused that FAR to be written 10 years ago? I wonder what it was and how much testing was done? I think they better go back to the drawing boards and examine that aspect of this tragedy, as well

Beyond that, I'll be interested in hearing what caused the (apparent) fuel flow shutoff. Sure sounds like "stuff" was loose in the cabin while the passengers were too secure? That too looks like a bad design IF it was a primary cause here? Then, imagine -- for a moment -- where the passengers were able to successfully egress but then maybe drowned. The conversation here would have a different flavor. Should inflatable safety floatation gear be required?

There's a whole lot of re-examination of both the float design and the FAR's called for here, methinks.

Posted by: Larry Stencel | March 21, 2018 2:12 AM    Report this comment

I did some research into the helicopter v. GA accident rates.

The 2016 overall helicopter accident rate is 3.45 per 100,000 hours down from a baseline of 7.97 for the baseline years of 2001-2005. The GA accident rate for 2016 was 0.84, down from 1.10 in 2010.

Looks to me that the FAA needs to mandate a large sign at the helicopter tour operators place of business informing potential passengers that they're over four times as likely to have an accident in a helicopter as a fixed wing airplane. How's about "Caveat Emptor?"

Posted by: Larry Stencel | March 21, 2018 2:50 AM    Report this comment

... anybody for bungy jumping?

Posted by: Thomas Cooke | March 21, 2018 5:11 AM    Report this comment

Back in 2006, an RCAF CH149 Cormorant (AW101) search and rescue helicopter crashed into the water off Nova Scotia. The crew was put in a similar situation to the occupants of the FlyNYON accident, in that the helicopter was upside down and under water. The difference was that the CH149 accident was a controlled flight into terrain (water) situation, so the impact was harder, but everyone on board survived the impact.

There were three fatalities in this accident, out of seven people on board. All three fatalities were occupants of the cabin that were unable to escape the aircraft. RCAF regulations require that, when a door/ramp on an aircraft is open, everyone inside needs to be either strapped into a seat, or attached with a harness (necessary for search and rescue and other military operations). Though everyone in the cabin managed to release their harnesses, they all did so differently, but three of them weren't able to escape. Take note that these are all crewmembers equipped with single-action quick-release harnesses (release located on the back of the harness) and highly trained in their use and in underwater egress, but they all appeared to have some form of trouble releasing.

(Incidentally all this information is found in the public accident report, find it by googling "CH149914 FSIR", it's the first link. Interesting read.)

The one survivor from the cabin indicated that his harness would not release under load (loaded due to him floating in the wreckage). One of the crewmembers that did not escape cut his harness with a knife, but who knows how long he struggled with the primary mechanism. Same with the other two fatalities, how long did they struggle to release before drowning?

As a result of this accident, the RCAF introduced new safety harnesses and tethers that have single-action releases and will release reliably under load. I believe the release is also mounted on the chest, with a ball-shaped handle that makes it easy to distinguish by touch alone from the life preserver activation handle, which is a string of beads. Lesson learned. But, this lesson was learned, and learned publically, over 10 years ago. Single-action quick releases are available on the market for this specific purpose. In my opinion, it's downright negligence on the part of the operator for not providing the passengers with equipment they could reasonably operate in an accident situation. No amount of pre-briefing on the use and location of the knife would make that system as safe as a single-action quick release, especially one located in easy reach (in front).

Should doors-removed operations be permitted with passengers? Sure, I don't see why not (when there's cognizance of the risks involved of course). Besides, in an emergency egress situation, not having a door to open (which may be damaged by impact) actually makes it far easier to escape a crashed aircraft, but none of that matters if you can't release yourself from your tether/seatbelts.

Is regulation required for this kind of operation, to mandate quick-release tethers? Well, the body count here says that, in my mind, it absolutely is required.

Posted by: Alex Rudy | March 21, 2018 8:45 AM    Report this comment

To add just a bit to Alex Rudy's post - the helicopter operator may argue that a knife is a viable means of escape, but what happens if the passenger drops it? When I was regularly skydiving I would carry two hook knives (in different locations) for that reason. But it was one of multiple layers of response, not the sole one.

And a quick-release should not just consider water landings, but any landing. Think of a crash onto dry land, followed by a fire. It's unrealistic to expect people to not panic and saw away at a strap on their back while flames lick their face.

Posted by: Kirk Wennerstrom | March 21, 2018 10:45 AM    Report this comment

I've done a lot of helicopter flying over the past 45 years with the doors off or open. We used the standard seat belts. Never lost a passenger. When did all this stuff start?

Posted by: MICHAEL MUETZEL | March 21, 2018 11:10 AM    Report this comment

Regarding banning helicopter flights with doors off, isn't getting out of a helicopter inverted in water, regardless of the seat belts, a whole lot easier without doors than with them?

Posted by: Timothy Southgate | March 21, 2018 3:55 PM    Report this comment


Look up the photos of these operators. The passengers aren't sitting in seats. They're sitting sideways, on the floor, with their legs out the side. A harness is a necessity.

Posted by: Joshua Levinson | March 21, 2018 6:03 PM    Report this comment

"The passengers aren't sitting in seats. They're sitting sideways, on the floor, with their legs out the side. A harness is a necessity"

I recall skydiving from a Bell 412 (Quincy, '99). There were five of us on each side, sitting on the floor, legs outside. All each of us had was a standard lap belt around our waist, bolted to the floor. Granted were were all wearing parachutes, too, but at the altitudes this helicopter flew the rigs were of little to no use, at least not until the end of the ride when they climbed up to exit altitude.

Despite the wild gyrations (and they were wild!), I felt fairly secure.

However, I don't think this would be sufficient for untrained 'whuffos'. But, in light of this recent accident, a full-on harness was overkill (quite literally).

Posted by: Kirk Wennerstrom | March 22, 2018 5:38 AM    Report this comment

Kirk Wennerstrom:

"I recall skydiving from a Bell 412 (Quincy, '99). There were five of us on each side, sitting on the floor, legs outside. All each of us had was a standard lap belt around our waist, bolted to the floor."

Per FAR 91.107, each occupant must be provided a seat belt. You were provided a seat belt which made it legal. If you want to be able to move around at all (like to take photos), a proper, legal seat belt would be too restrictive for this purpose. So, you have a choice: use a belt and limit range of motion, or wear a harness. The thought process in choosing to wear a harness is pretty straightforward from the perspective of the operator and the passengers.

However, the harness itself isn't the issue here, it's the mechanism to release the harness that caused the problem. Probably (I say probably because there isn't a released report yet to say for sure, but the talk between the NTSB and FAA pretty well confirms it).

Posted by: Alex Rudy | March 22, 2018 10:30 AM    Report this comment

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