October 17, 2017

NTSB Criticizes FAA Oversight of Commercial Balloon Operations

Holland & Knight Alert
Jamie Rodriguez
HIGHLIGHTS:
  • In a National Transportation Safety Board (NTSB) board meeting concerning the crash of a hot air balloon after striking high-voltage power lines near Lockhart, Texas, the NTSB criticized the Federal Aviation Administration (FAA) for failing to adequately oversee commercial balloon operators and operations.
  • The NTSB recommended that the FAA remove the medical certification exemption for commercial balloon operators from FAA regulations and "implement more effective ways to target oversight of operators and operations that pose the most significant safety risks to the public."

When the Federal Aviation Administration (FAA) issues a pre-emptive press release ahead of a National Transportation Safety Board (NTSB) board meeting, it is a recognition that the NTSB is planning to hold the FAA's feet to the fire. Thus, the FAA's press release on Friday evening, Oct. 13, 2017, announcing the voluntary accreditation program of the Balloon Federation of America (BFA) for balloon ride operations was a harbinger of NTSB criticism. The pattern held true today.

The NTSB board meeting concerned the crash of a hot air balloon after striking high-voltage power lines near Lockhart, Texas, on July 30, 2016, which resulted in the death of the pilot and all 15 passengers. The NTSB criticized the FAA for failing to adequately oversee commercial balloon operators and operations. During the board meeting, NTSB Chairman Robert Sumwalt criticized the FAA's promotion of the BFA's voluntary program because it was unlikely to have prevented this accident.

Ironically, is it likely [the pilot] would have complied with these requirements? We do not know. But we do know that [the pilot] was not a member of the BFA. He did not participate in BFA events. He did not go to fly-ins. He was literally and figuratively operating under the radar.
I believe that this voluntary compliance standard, even though it may be good, would not have done a thing to have prevented this accident. That is the sad thing.

Chairman Sumwalt then lowered the boom more directly on the FAA.

You know what else is sad? Why is the FAA promoting this? This is a BFA initiative. Why is the FAA promoting it? It is not an FAA program. ... The FAA is treating this as a be-all and end-all. They are abdicating their responsibility to provide oversight. They are saying, the BFA will take care of this so we do not have to do anything. That is what is sad.
I am impressed with what the BFA has done. I am disappointed that the FAA appears to be shirking its responsibility.

The NTSB determined the probable cause of the accident was the "pilot's pattern of poor decision-making, from initial launch, continuing the flight in fog and above clouds, and descent near clouds that decreased the pilots ability to see and avoid obstacles." The NTSB also identified the pilot's "medical conditions and medications, and the FAA's policy to not require medical certification for commercial balloon pilots," as contributing causes of the accident.

The NTSB, however, focused responsibility for preventing such accidents on the lack of FAA medical certification standards for commercial balloon operators and lack of FAA oversight of the industry.

Another point of NTSB criticism of the FAA was the administration's failure to acceptably respond to previous NTSB safety recommendations issued following a 2013 commercial balloon accident in Chester Springs, Pa. After that accident, the NTSB recommended that the FAA require commercial balloon operators to maintain letters of authorization with the FAA, and that administration inspectors include commercial balloon operators in FAA surveillance activities. The purpose of these recommendations was to ensure that the FAA maintain records of commercial balloon operators and monitor their operations. See NTSB Safety Recommendations A-14-11 & A-14-12 (April 4, 2014). During today's board meeting, the NTSB noted the FAA had conducted only 42 inspections of individual balloon operators nationwide in the past three years. These recommendations were considered to be still open with an unacceptable response from the FAA.

The NTSB issued two new safety recommendations to the FAA. First, the NTSB recommended that the FAA remove the medical certification exemption for commercial balloon pilots from the FAA regulations at 14 C.F.R. § 61.23(b). The NTSB also recommended that the FAA "analyze its current policies, procedures and tools for conducting oversight of commercial balloon operations in accordance with [the FAA's] integrated oversight philosophy, taking into account the findings of this accident. Based on this analysis, develop and implement more effective ways to target oversight of the operator and operations that pose the most significant safety risk to the public."


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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