TFR Trouble

How an experienced pilot with a clean record flying along the beach got nailed.

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Russell Munson

(February 2011) — Joe Biden came to visit last Memorial Day weekend. I wish he had called first so I could have invited him for an airplane ride.

Sunday morning, May 30, was beautiful on eastern Long Island. You could almost see Ireland, and it was as calm as a lobster on lithium. On days like this pilots take to the air like hawks at mealtime. I did a quick weather check on the computer then drove to East Hampton airport, where my Husky lives. The plan was to fly along the beach around Southampton to check on erosion from the heavy spring storms, but mainly I was simply eager to roam the sky on such a day. Biden would have enjoyed it too, because I would be flying right near where he was staying, as it turned out.

The beach was recovering nicely. Sand was gradually building back where it had been washed away. In due time, I landed and taxied to my hangar. How strange that the FBO golf cart pulled up before I had even climbed out of the airplane. The lineman handed me a Post-it note with a telephone number written down after the word Tracon (Terminal Radar Approach Control).

"They want you to call. Said you flew into a TFR."

"What TFR?"

"Apparently there's one around Southampton."

The first word that came to mind is not publishable within the pages of this venerable magazine. A pleasant-sounding fellow answered my call to Tracon. After verifying who I was, my N-number and contact information, he told me I had violated the TFR over Southampton that had been posted on Friday. He asked if I was aware of it.

"No," I said, "but that must have been me."

Later, I learned that I was one of 11 pilots who were not aware of Biden's visit.

"Someone at the Farmingdale FSDO [Flight Standards District Office] will be contacting you in a few days," he replied.

Sure enough, they did. Paul Gretschel, an inspector at the FSDO, requested a written statement of what happened and asked if I would come to the Farmingdale office for an interview. I said this was one of the most embarrassing incidents to happen in my flying career, and of course I would do as he requested.

In my written statement and during my interview with Gretschel and inspector David Williams, I was completely forthcoming.

I said that I had seen earlier e-mail notifications of a TFR around New York Harbor for the holiday weekend, but somehow missed the one issued that Friday regarding Southampton even though I subscribe to the FAASTeam notices. Later, I found that I had deleted it thinking it was one I had already seen. Furthermore, I told them, although I checked weather, I did not look for TFRs that morning. I don't recall there ever being one on eastern Long Island. On cross-country trips I always check for TFRs, but not for local flights. Also, I left my Garmin 696 with XM Weather at home. It would have shown the TFR. So there were three opportunities to learn of the TFR. This was bad enough, but the defining act of stupidity was that my Class III medical had just expired. I usually have it timed with the biennial flight review to more easily remember, but I had taken extra training in the past year, which counted as a BFR, so the timing was off. (I do have annual physical and eye examinations that are far more stringent than the Class III physical.) Could it be worse? I guess I could have taxied into the FBO golf cart, but if you are shaking your head right now, you're absolutely correct.

While I could tell them how the TFR incursion happened, I could in no way excuse it, I told Gretschel and Williams, and what really bothered me about this, aside from the embarrassment, was that the incursion resulted from a chain of omissions similar in a way to the chain of events preceding virtually all aircraft accidents. This was thought-provoking. The whole event was totally my fault.

The inspectors, both general aviation pilots before joining the FAA, were professional, courteous and understanding. They would make their report, they said, and send it on to the FAA Eastern Regional Counsel at JFK for disposition, adding that there would be a mandatory certificate suspension but that I could still fly during the suspension providing I was with a pilot qualified to act as pilot in command in my aircraft.

Late Help
Patrick Bradley is a friend who used to write for Flying years ago before becoming an aviation lawyer. Couldn't hurt to check in with him.

The first thing he said was, "Did you file a NASA report?"

"No," I said. "I always thought they were more for air carrier safety issues."

There was a long pause. He said quietly, "It would have been your ticket out of jail. You still would have a suspension on your record, but it would have been waived under the immunity of the report. They are going to throw the book at you — careless and reckless, everything. That's what they do, then negotiate."

It was our friendship, I am sure, that prevented him from finishing his sentence with "you moron."

"Should I get a lawyer?"

Another pause.

Instead of saying "Duh," he explained that he deals almost entirely in accident litigation but recommended Gregory Winton at Aviation Law Experts in Frederick, Maryland.

An FAA attorney before entering private practice, Greg Winton is a down-to-earth pragmatist. Again there were several discreet pauses as I told him the story.

"Well, that's pretty cut and dried," he said.

He requested and reviewed the inspectors' report, and we then waited for the Notice of Proposed Certificate Action from the regional counsel. Patrick Bradley was right in his prediction. In addition to my admitted offenses, the FAA was claiming a violation of 91.13(a), which states that no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another, and proposed a 120-day suspension of my commercial certificate. The legal dance now began, and it was as civilized and proscribed as an English country dance. The curtsey and bow were the sending of the notice and our response to either accept the proposal or choose one of the various options of proceeding. We chose to have an informal conference by telephone with Judith L. Vaughn, the FAA attorney handling the case. Vaughn was formal but sensitive to the issues. The do-si-do part of the dance was arriving at a settlement. After subsequent calls and e-mails, we arrived at the final bow. Part 91.13(a), which in my opinion was blatantly absurd, was thrown out and the 120-day suspension reduced to 90 days — still a severe punishment in my mind. I don't yet know how it will affect my insurance. The companies I asked said that it depends on the circumstances.

Most learning experiences in flying are fun. This was not. I learned that the only sure way to check for TFRs is to call Flight Service before any flight. My BFR and flight physical dates are now on my computer. My complacency index is under renewed watch, and as always I attend every FAASTeam meeting near me whenever possible.

If you are unfamiliar with FAASTeam publications and meetings, go to faasafety.gov. This is an effective program based on the premise that education is more effective than punishment in promoting safety.

Hindsight
My approach throughout this process was to be completely open in admitting what I had done. Any lawyer will tell you this is crazy. Here is what I should have done.

First, as an AOPA member, I could have taken advantage of the association's legal services plan. It covers some of the legal fees if there is an FAA enforcement action against you.

Second, when talking to Tracon, giving name, rank and serial number is enough. It is a recorded conversation. Any information you give can be used against you. My natural reaction was to honestly relate what I had done because I am such a splendid human being. Big mistake. You don't have to say anything beyond who you are without consulting a lawyer. Be aware that in a VIP TFR violation they are out to get you. You can be a churchgoing ATP with 20,000 hours and six hungry kids. It won't make any difference. Active military and airline pilots have inadvertently made TFR penetrations when flying light aircraft on the weekends, and had suspensions. This is about punishment, not education.

This punitive attitude creates an adversarial situation, which, ironically, is the complete opposite of the educational approach the FAA has found to be most effective in promoting compliance to regulations.

So why the switch? Most people I talked to believe it stems from a conflict between the FAA and the TSA (Transportation Security Administration) that the TSA won. According to a source formerly employed by the Department of Homeland Security, however, it was the Secret Service, not the TSA, that requested that the FAA impose a suspension for even first-time TFR violators.

In most cases the FAA assumes you are a pilot who has unintentionally made a mistake, and that you will benefit from counseling or training to mend your ways. Incorrigible bad boys who think flying through the St. Louis arch is cool will be smacked on the fanny and deservedly so, but they are the exceptions among our fellow pilots. Most of us want to do the right thing. The Secret Service, on the other hand, assumes you are a potential threat. Understandable, perhaps, but it could learn from the FAA's experience that a softer glove is more effective.

My next step should have been to immediately hire a lawyer through whom all further contact with the FAA would be conducted. I say this with reluctance, because inspectors Gretschel and Williams are fine people dedicated to aviation safety. If my case could have been resolved within the FSDO, I believe any action taken would have been fair. Unfortunately, however, they were just a step in the process. Their hands, as well as those of the FAA attorney, were tied.

After finding a lawyer, I should have filed a NASA ASRS (Aviation Safety Reporting System) report within 10 days of the infraction (asrs.arc.nasa.gov). For most offenses, this will waive a suspension.

After following these steps you just do the dance. You are part of a process, a speck in the system, like when being admitted to a hospital. All my "should haves" were learned too late to help me, but I hope they might help you.

Finally, I wonder: Does grounding me make the vice president safer? In fact, does publishing the coordinates of where he is going to be, and putting a three-nautical-mile, 3,000-foot-high cylinder around him offer any protection at all from an aerial attack? Is such an attack from a GA aircraft even a remote threat compared with that posed by, say, an unknown van driving by? Curiously, when I fed the notam coordinates into Google Maps, the location depicted was not where Biden was staying. Everyone in the neighborhood assumed where he was staying from the fleet of Secret Service vehicles blocking the driveway. The coordinates fell on a neighbor's lawn a few houses away. Was this an error with Google Maps, or was the offset deliberate so that a GPS-guided weapon would strike the neighbor rather than the vice president? If so, did the Secret Service inform the neighbor? We'll never know. In the Land of the Free, fighting terrorism is a tough job. May common sense prevail, and may we remain free to fly, the ultimate expression of freedom. Just be sure to check for those TFRs first.

Avoiding TRR Trouble As a rotor-wing air intercept pilot for the U.S. Coast Guard, I see first person how temporary flight restriction (TFR) violators end up in their predicaments. It's never intentional, and it happens to people of all experience levels. As a GA pilot as well, I am always concerned about accidentally flying into one myself. Despite widespread announcements, it can be easy to do, and the repercussions can be quite harsh, to include being fired upon! TFRs restrict airspace for myriad reasons. They are imposed for presidential movements, major-league and college Division One sports events, natural disasters, airshows, car races and more. The one thing they all have in common is the fact that you don't want to fly through one.The best strategy for avoiding this trap can be captured in three simple steps. First, know your route of flight well. Many TFRs have been in place since 9/11, and it's not a far stretch to think that some places, such as nuclear power plants and military bases, might be sensitive. Second, always get a good preflight briefing. If going IFR, you should be routed around or legally through TFRs, but VFR will leave the responsibility up to you. Great sources include DUATS or FAA online, both of which have graphical depictions of active TFRs. Many handheld navigators have constantly updated graphical TFRs included in their satellite weather bundle. You can also call 800-WX-BRIEF and speak to a briefer. This is the best way to get the most up-to-date information. Finally, you should always monitor the radio and flight-follow when practical. Some TFRs pop up on very short notice. A quick check with FSS once airborne can confirm a previous briefing, and monitoring Guard (121.5) will guarantee you hear any urgent ATC attempts to contact you. Avoiding a TFR isn't difficult with a little prior thought, and the repercussions of finding yourself inside one far outweigh the trouble it takes to make sure you steer clear. —Lt. Derek Ham__Lt. Derek Ham is a U.S. Coast Guard pilot stationed at Air Station Atlantic City, New Jersey. He has an ATP rating with 2,800 hours of helicopter and fixed wing experience.