BalloonLife,June1999

12

TheBalloonFederationofAmerica has
recently petitionedthe Fed-eral Aviation
Administration to amend theCode ofFed-
eral Regulations Part 91, paragraph 119—
minimumsafealtitudes.TheBFA isre-
questinganewsubparagraphallowing
balloons to fly lower, taking advantage of
boundarylayer windcurrents.
Recently,Balloon Life revieweda
Nation alTranspo rtationSafetyBoard
decision of the appeal of certificate action
against an aeronaut. The box nearby con-
tains that Administrator’s complaint. This
case presents an interestingargumentre-
gardinglow flight. Italso reinforcesthat
proper flight planningis essential. When

the pilot tried to use his filing of an Avia-
tionSafetyReportingProgramtowaive
thecertificateactionagainsthimitwas
denied.TheAdministrativeLawJudge,
upheld by the NTSB, ruled that his actions
weredeliberate and therefore not eligible.
The infraction tookplace in1995 at
theconclusionofaweekendfestivalin
Pennsylvania. On Sundayafternoon a fi-
nal fixed wing aerobatic airshow was be-
ingconductedovera river.Theballoon
pilot was flying a commercial advertising
specialshape balloon.
TheFAAissuedaCertificateof
WaiverorAuthorizationfortheevent,
whichwasinforceontheafternoonin
questionfrom 6:00 a.m. to 6:30 p.m. Ac-
cordingtothe printedschedule attached
tothe waiver, the aerobatic air show was
slatedtoconcludeat5:45p.m.Italso
requ iredt hataNo tic et oAirmen
(NOTAM)beissuedatleast24hours
before each air show event. As a result of
several delays in the day’s events, the air
showstarted late. Shortly before the waiver
would have expired, the FAA Monitor of
the air show agreedtoextendthe time of
thewaiver andcoordinatedhisdecision
withair traffic control.
Respondenttestifiedthat hesentup
testheliumballoonstocheckthewind
directionandthentookoff at about 7:00
p.m.fromthe northsideof apark,just
behindastadium.Hecouldnotseethe
water from his launch site. His flight was
notpartofanyorganizedregattaevent
and he knew that it was not covered by the
waiver.
Upon reaching an altitudeof approxi-
mately600 feet,the pilotnoticedanair-
plane over the river performing aerobatic
maneuvers and saw vast crowds of people
alongtheshoreline.He testifiedthathe

didnotintendtoflylow overthecrowd
but,whentheairplaneappearedtobe
headed for him, he quicklydescendedto
within several feet of the water in order to
avoid a collision. As the pilot descended,
he saw “thousands” of people in front of
him.Theaviationsafetyinspector, who
didnothave a continuous,unobstructed
viewoftheballoon;however,reported
seeing the pilot, when at an altitude of 100
feet orless, waving to the crowd.Thepilot
claimsthathewasnotwavingbut,in-
stead, wasadjustingthe burner controls.
After travelingwhat he considered a safe
distance over the water, he ascended and
leftthe area.
Accordingtoorganizerforthebal-
looneventsfortheregatta,allballoon
pilotswhowishedtoparticipateinany
regattaeventswererequiredtoattend
organized briefings, where a hand-out was
distributedlistingtheapprovedlaunch
sites and instructed, as to Sunday, that no
launches could be undertaken “until after
the air show, which ends at 6:30 p.m.” In
additiontotheregattashowfrequency,
the handout listed telephone numbers for
the several local towers, FSDO, andone
labeled“Regatta phone.”
At each briefing, the pilots werein-
formed thatthe air show couldrunover-
timeandwere advisedtomonitor radio
frequency123.45tobecertainthatthe
show was concluded before they took off.
According the NTSB order,“Respon-
dentattendedtheSaturdaybriefing,but
did not pay much attention because it was
raining and he knew he would not be able
tolaunchthat day.”
At the Sunday briefing, the advice to
monitor theregattaradiofrequencywas
repeatedand,again,laterattheballoon
pilots’ brunch. Althoughrespondentdid

by Tom Hamilton

Complaint

During theflight,the balloon
was operated ina congested area
atanaltitudeoflessthan1,000
feetabovethehighestobstacle
within a horizontal radius of 2,000
feet of the balloon.§91.119(b)
During theflight,the balloon
wasoperatedbelowanaltitude
which would allow, if a power unit
fails, an emergency landing with-
outunduehazardtopersonsor
prope rtyo nt hes urfa ce .
§91.119(a)
During theflight,the balloon
flewthroughtheaerobaticbox
duringanairshowandcameso
close to another aircraftthat was
performingaerobaticsthatthe
airshow had to be stopped to avert
a midair collision. §91.111
Byvirtueoftheabove,the
aircraftwasoperatedinacare-
lessor recklessmanner so asto
endangerthelifeorpropertyof
another. §91.13

The NTSB makes an interesting ruling ondouble burners.Lack
of proper planning,however, preventsthe pilotfrom using his
ARSP report to avoid a penalty.

BalloonLife,June 1999

14

not attend theSundaybriefing,heat-
tended the brunch.
The balloon organizer testified that
before respondent’s balloon appeared in
the vicinity of the air show on Sunday
evening,anotherballoon was operated
from the directionof the city and crossed
the river atan altitude of 1400-1500 feet.
The first balloon’s flight was at a suffi-
cient altitude to traverse the area without
interfering with the air show. Soon after
the respondent’s balloon appeared then
descend rapidly from an altitude of 500-
600 feet, down very low over the crowd,
to several feet above the water. Several
witnesses (including respondent), testi-
fied to a perceived collision threat. As a
result, the FAA monitor stopped the air
show for about four tofive minutes, until
he believed the area was clear. Through-
out this occurrence,respondent did not
respond to repeated attempts to contact
him by radio.
Respondentstatedthathehadno
reason to suspect the air show would run
late and that, since his flightwas not part
of the regatta activities, he was not obli-
gated to coordinate hisflightwithanyone
or monitor the regatta radio frequency.
Before the launch, he didnot inquire over
the radio whether the air showwas stillin
progress.
The law judge found that respondent
acted carelessly, created a collision haz-
ard withanother aircraft, and endangered
people on the ground. He further deter-
minedthatthedeliberatene ssof
respondent’s acts disqualified him from
an ASRPsanction waiver.
On appeal, respondent asserted that
the law judge placed undue weighton the
opinionsof witnesses whowere notquali-
fiedasballooning experts.TheNTSB
disagreed. Theynoted that bothsidespre-
sented witnesses who were aviation ex-
pertsin general,not as experts in the
operation of hot air balloons.
The respondent admitted that he op-
erated the balloon at an altitude well be-
low 1000 feet over the large crowd. He
argued that he was permitted to deviate
from theFARsbecausehe was faced with
an emergency situation. The NTSBnoted
that hefailed toacknowledgethat the
emergency was one of his own making.
He had been repeatedly advised to moni-
tortheregattaradiofrequency andwarned
thattheairshowcouldrunlate.The NTSB

noted that as an experienced balloonist
and pastparticipant inthe regatta, respon-
dent knew that, if the air show was stillin
progress,therewouldbethousands of
people along the river. A reasonable and
careful pilot would have confirmed that
theairshow had concludedbefore he took
off near the site. A pilotmay deviate from
the FARs in an emergency if the emer-
gency was “unforeseen and unavoidable
by the exercise of sound judgment.”
The NTSBfurther stated, “Itis clear
thatthe deliberate choice to take off with-
out checking the status of the air show or
utilizing[respondents]onboardradioand
thesubsequentdecisiontodrop down low
over the large crowd render respondent
ineligible for a waiver of sanction under
the ASRP. See Administrator v. Russo,
NTSBOrder No. EA-3800at9-10 (1993)
(ASRPwaiver could notbe applied when
respondent made a deliberate decision to
bypass an alternative airport and land at
an airport he knew had no functioning
runway lights). Thecharges sustained,
especially given the deliberate nature of
respondent’sactions,are sufficienttosup-
port a 90-day suspension.”
Oneof themost commonballoon
pilotcertificateactionsinvolves
§91.119(a), which states that an aircraft
cannotbeoperatedbelow“analtitude
allowing, if a power unit fails, an emer-
gency landing without unduehazard to
persons or property on the surface.”
To this violation theballoon pilot
argued that he couldnot be found to have
violatedFAR§91.119(a)because hisbal-
loonhastwo separate burners. Therefore,
he asserted, if a power unit had failed, he
would have had abackup and, further-
more, itwould be extremely unlikely that
both power units would fail during the
same flight.
In response, the Administrator took
issue with respondent’s interpretation of
theregulation,statingthat“section
91.119(a) examines an aircraft’s altitude
from asituationthat assumes apower unit
failure,regardless ofthelikelihood of
such a failure.”
The NTSB stated,“We think, [the
Administrator’s argument] does not an-
swertheissueraisedbyrespondent.
Respondent’s point, as we read it, is not
just that it is unlikely that both ofhis
balloon’s burners would fail, but that if
onedid, he couldcontinuehisflightonthe

other, without the necessity for an emer-
gency landingthatmight create an undue
hazard.
“We have examined the record and
foundthat thereis simplynot enough
evidence tosupport a 91.119(a)violation.
There is very little testimony regarding
how the balloon would be affected ‘if a
power unit failed.’ The only information
regarding the aircraft’s two independent
burnerscame from respondent, who testi-
fied that each of the power units, includ-
ingthe burners, fuel lines, and tanks, was
independent of the other. He also stated
that, duringthe flight, hehadboth burners
on and, if one power unit had failed, he
would have used just the other one.
“On the issue of power unit failure,
theAdministratorpresentedthetestimony
ofan aviationsafetyinspector, whoopined
that,ifrespondenthadexperienceda
‘power failure,’he probably would not
have been able to make a safe landing in
the area. When asked ifhe knew how
many burners respondent had on the bal-
loon, [the inspector] statedhe had ‘no
idea.’ If, for example, there was a power
unit failure,wouldthatnecessitatean
immediate emergency landing? Is there a
reasonwhy the ballooncouldnot be oper-
ated safely on one burner? The record is
sparse on these issues and, therefore, we
must conclude that there is insufficient
evidence to sustain a 91.119(a)charge.”
Robert Hedrick,Editor,The NTSB
Bar AssociationNewsletter,writingabout
this case said, “Read literally, if the air-
craft has multiple power units, and it can
fly safely without one power unit, then
thereshould not beaviolation of this
regulation.
“The Board found that the FAA had
notansweredthe keyquestionsof whether
the failure of one unit would necessitate
anemergency landing, andwhether or not
the balloon could be operated safely on
one burner.
“Taken a step further, this decision
suggeststhatthere willbe no violationof
section 91.119(a) for unusually low fly-
ing multi-engine aircraft, as long as the
aircraft can be safely operated with one
engine out.”
The NTSB affirmed the ALJ’s find-
ings on all counts except that of section
91.119(a).The pilot’scertificate wassus-
pended for 90 days.