Did Sen. Inhofe Get Off Easy? Chapter and Verse (Updated)

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I mentioned yesterday that, thanks to The Smoking Gun's FOIA request, the FAA records of Sen. James Inhofe's unauthorized landing in Texas last October have been released. They show him landing on a closed runway full of men doing repair work; "sky-hopping" over the work crew and machinery and then landing behind them; provoking an airport manager to say, "I've got over 50 years flying, three tours of Vietnam, and I can assure you I have never seen such a reckless disregard for human life in my life"; and then being belligerent when confronted about the situation. This image juste photo from NXNW, of Cary Grant being sky-hopped, comes from The Smoking Gun's site.

A reader who works at a big law firm writes to ask:

>>Your piece on him was most illuminating but omitted one detail I'd have liked to hear:  based on your aviation experience and/or the experience of others knowledgeable in the field, how does the very mild sanction meted out to Imhofe compare with the sanction that would be meted out to an unknown 76-year-old pilot with no official position?  If, as I suspect, there is a disparity, it will be the umpteenth example of how those who govern us are held exempt from the standards of conduct applied to ordinary citizens -- try driving a girl off a bridge and not reporting it, and see what happens to you.<<

The honest answer is: I don't know. Because I've never heard of a case quite like this, I can't say what the "normal" FAA sanction would be. (Update: to see what someone who does know about cases like this thinks, you can skip to the update at the end of this post.) I do know that the FAA's response to "pilot deviations" covers a very wide range of judgment calls. It can suspend flying privileges, revoke them altogether, insist on "remedial training," or take no action at all, based on its sense of the pilot's attitude and the origins of the problem.

I've written to a number of friends who work in or with the FAA. They've all said "it depends." The most exhaustive and, finally, most illuminating reply comes from a very experienced and well-known pilot, flight instructor, and aviation expert who, because of his position and the delicacy of the topic, asks that he not be named. After the jump, I quote his reply in exhaustive and very nit-picking detail. Here's the Cliff's Notes version of what he's talking about:

The FAA's choice, after a "pilot deviation" of this sort, is to impose a penalty (an "enforcement action") -- or instead to recommend the pilot only for counseling and "Remedial Training," or RT. Penalties affect flying status, make it harder and costlier to get insurance, can stay on your "permanent record," etc. RT and counseling don't have those effects.

Inhofe got RT; he didn't get "enforcement." If you want to judge whether that's fishy or not -- well, that's what my friend the flight instructor/safety expert is laying out the evidence for. I've inserted a few explanations in brackets, [like this]. The boldface emphases are from him, with one exception noted. He begins:

>>Many pilots posting on popular aviation forums are miffed about the Inhofe incident. It's not uncommon for pilots who have inadvertently violated TFRs [Temporary Flight Restrictions, for instance around sites where the President is visiting] or been involved in mishaps such as ground loops that cause only minor damage to aircraft and pilot egos to receive harsher treatment, including suspensions of their pilot certificates, 709 rides (essentially recertification check rides with an FAA inspector), and other sanctions. Such penalties are often assessed when the pilot exhibits an attitude like that Inhofe apparently copped during and after the incident in question. Being contrite and open to remedial training often helps reduce or eliminate penalties the FAA might impose.

For more information about the guidance that FAA Aviation Safety Inspectors should follow when investigating incidents, see their official handbook, the Flight Standards Information Management System (FSIMS, a.k.a., Order 8900.1), available on the Web here.

The section of that manual that discusses violations of regulations notes in part:

...

2) Remedial Training (RT) is a form of FAA administrative corrective action that uses education as a tool to allow airmen who have committed an inadvertent violation to increase their knowledge and skills in areas related to the violation.

3) "Significantly unsafe" will be defined in detail in an upcoming change to Order 2150.3. The definition will center on the difference between the potential and actual hazard created by an act of noncompliance. For example, an incident where an actual hazard was posed may require legal action, but an incident where the hazard was only potential may be better handled with administrative action.

Inspectors are given many guidelines to help them understand when they should use remedial training (RT) and counseling instead of enforcement actions. According to FSIMS, those guidelines include:

...

C. Eligibility. Deliberate, willful violations, which involve gross negligence, recklessness, recidivism, or flagrant disregard of 14 CFR [i.e., the FAA regulations], shall continue to be handled by the imposition of strong, legal enforcement actions. This is clearly an area where remedial training is inappropriate and would be ineffective. [Emphasis added here by JF] The RT program applies to inadvertent violations of 14 CFR, and the inspector determines the inadvertency on a case-by-case basis grounded in the inspector's investigation of the facts and circumstances of the incident. The airman's past performance and attitude toward the incident are also important factors used in determining whether remedial training is appropriate.

1) When assessing the airman's eligibility for the RT program, the inspector must determine if future compliance can, indeed, be assured solely through remedial training. For the inspector to consider the airman eligible for remedial training, the act of noncompliance must meet the following conditions:

·         It cannot have been deliberate, e.g., repeated buzzing of a house as opposed to an inadvertent deviation from minimum safe altitudes because of un-forecasted weather.

·         The noncompliance cannot have been the cause of an accident.

·         The noncompliance cannot have actually compromised safety, i.e., created a condition that was significantly unsafe.

·         The noncompliance cannot have indicated a lack of qualification, which would require reexamination, on the airman's part.

·         The noncompliance cannot have been caused by gross negligence.

·         The noncompliance cannot have been of a criminal nature.

2) The airman must have exhibited a constructive attitude toward safety and his or her rehabilitation and must be deemed not likely to commit acts of noncompliance in the future.

3) Furthermore, the inspector will review the airman's enforcement history and evaluate whether that history supports or precludes participation in the RT program. Ideally, candidates should be first-time "offenders;" however, previous enforcement history does not automatically exclude an airman from the program.

4) Finally, airmen who were exercising the privileges of their certificates for compensation or hire in air transportation when the violation occurred are not eligible for remedial training.

Based on what I've read about the Inhofe incident, the follow-through also seems at odds with the FAA's recent emphasis on Aeronautical Decision Making (ADM), risk management, and other topics related to human factors in safety.

For example, the FAA hosted more than 90 special Safety Stand Down events nationwide on April 2 (described, at the link to the PDF, in the latest edition of FAASafety Briefing). This year's programs emphasized developing and adopting a "positive flight attitude," which, of course, involves preflight preparation, continuous reassessment of conditions and information as a flight progresses, and taking the appropriate actions when the situation changes or the unexpected happens.

FAA also emphasizes the concept of "Risk Management." The agency has published a separate title on the subject, the Risk Management Handbook (FAA-H-8083-2), which focuses on decision-making, and the topic is also covered extensively in the Pilot's Handbook of Aeronautical Knowledge, the basic text for people pursuing a private pilot certificate; it's emphasized in all subsequent training, and during flight reviews and practical tests.

With regard to specific rules, the Inhofe incident at a minimum seemed to involve violations (or at least stretching) several FARs that the FAA seems to take seriously, most obviously:

91.13 Careless or reckless operation.

(a) Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

(b) Aircraft operations other than for the purpose of air navigation. No person may operate an aircraft, other than for the purpose of air navigation, on any part of the surface of an airport used by aircraft for air commerce (including areas used by those aircraft for receiving or discharging persons or cargo), in a careless or reckless manner so as to endanger the life or property of another.

91.103 Preflight action.

Each pilot in command shall, before beginning a flight, become familiar with all available information concerning that flight [emphasis added - by the flight instructor]. This information must include--

(a) For a flight under IFR or a flight not in the vicinity of an airport, weather reports and forecasts, fuel requirements, alternatives available if the planned flight cannot be completed, and any known traffic delays of which the pilot in command has been advised by ATC;

(b) For any flight, runway lengths at airports of intended use, and the following takeoff and landing distance information:

(1) For civil aircraft for which an approved Airplane or Rotorcraft Flight Manual containing takeoff and landing distance data is required, the takeoff and landing distance data contained therein; and

(2) For civil aircraft other than those specified in paragraph (b)(1) of this section, other reliable information appropriate to the aircraft, relating to aircraft performance under expected values of airport elevation and runway slope, aircraft gross weight, and wind and temperature.

Of course, there's lots of room for inspectors and others (viz., NTSB administrative law judges who hear appeals of FAA sanctions) to interpret the rules and guidelines cited above. But when I read the rulings of those NTSB administrative judges after pilots appeal sanctions imposed by the FAA, I'm struck by how often and completely those officials come down on the side of the FAA. Inhofe didn't appeal the FAA's actions (and since FAA didn't take certificate action per se, I'm not sure he could have), so we'll never how an NTSB panel would have viewed his actions during the flight in question.

And each person reviewing the Inhofe's incident has to draw his own conclusions about whether the senator's attitude during and after the event meets the criteria for RT v. sanctions as described above.<<

OK, that's the authoritative text. The part that catches my eye is the comparison between the "C: Eligibility" section, on the attitude expected from those who get RT rather than enforcement, and accounts of the incident. But it's a settled issue now -- "old news," as Inhofe himself puts it. As my friend says, judge for yourself what it signifies. (Thanks to all who provided advice, especially the author of the long exegesis above.)

UPDATE: A retired inspector for the FSDO -- the Flight Standards District Office, the main standards-and-enforcement arm of the FAA -- who was based at Dulles Airport read the account above and sent this reaction:

"Senator got a pass - no doubt about it. That would USUALLY mean the decisions came from the top down. But no guarantees. Inspectors who have been around a while can do some finagling too."

This inspector also points out that the FAA's Training Center and Airman Medical office are in Oklahoma City. Senator Inhofe is, of course (R-OK).

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James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

Fallows welcomes and frequently quotes from reader mail sent via the "Email" button below. Unless you specify otherwise, we consider any incoming mail available for possible quotation -- but not with the sender's real name unless you explicitly state that it may be used. If you are wondering why Fallows does not use a "Comments" field below his posts, please see previous explanations here and here.

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