In a recent NTSB decision, the Board clarified the “collision hazard” requirement of FAR 91.111. In Administrator v. Round, the FAA issued an order suspending the airman’s ATP certificate for 120 days based upon alleged violations of FARs 91.13(a)2 (careless and reckless) and 91.111(a) (operating near aircraft). The charges arose out of an incident in which the airman approached a Mitsubishi MU-2 aircraft while flying his red T-33 aircraft, overtook the MU-2 from underneath, and pulled up very close in front of the MU-2. After a hearing, the ALJ affirmed the FAA’s order of suspension and the airman then appealed the decision to the full Board.
On appeal, the airman argued that the ALJ erred in his credibility determination regarding the distance between the two aircraft. The airman argued that the distance was greater than 500 feet and, thus, according to the definition of “near midair collision” in the Airman’s Information Manual (“AIM”), no collision hazard was present. (Section 7-6-3.b of the AIM defines the term “near midair collision “as an incident associated with the operation of an aircraft in which a possibility of collision occurs as a result of proximity of less than 500 feet to another aircraft, or a report is received from a pilot or a flight crew member stating that a collision hazard existed between two or more aircraft.)
In rejecting this argument, the Board observed that the AIM is only advisory in nature and not regulatory. It went on to note that the AIM definition is not determinative of whether FAR 91.111 has been violated because “it does not matter whether respondent caused or almost caused a near midair collision; it does not matter whether respondent came within 50 feet or 5,000 feet of the MU-2. What matters is whether respondent operated his aircraft so close to another aircraft as to create a collision hazard.” The Board also referenced previous holdings indicating that, in addition to proximity, an experienced pilot’s evasive action to avoid a collision can also be acceptable evidence of a potential collision hazard. As a result, the Board affirmed the ALJ’s credibility determinations.
On a separate note, the Board took issue with a comment the ALJ made during his explanation of his credibility findings. The ALJ stated that the airman was “entitled to less credibility, particularly in light of his history involving a similar incident” (a reference to an admission by the airman regarding a prior incident in which an aircraft piloted by the airman approached a law enforcement helicopter that an acquaintance was piloting, overtook it from underneath, and pulled up very close in front of the helicopter, when the helicopter was only 300 feet above the ground). The Board concluded that such “evidence would not likely be allowed under the Federal Rules of Evidence, which generally forbid the admission of evidence of other crimes, wrongs, or acts to show that a person acted in conformity therewith.” However, the Board did not feel that this error was prejudicial to the airman.
Although the airman asserted an interesting argument, the Board’s rejection of the argument was fairly predictable. What is ironic is that the result would likely be the opposite in a similar situation if the FAA argued that the AIM definition applied. In that situation the FAA would presumably argue, and the Board would likely agree, that the Board had to defer to the FAA’s use of the AIM definition to interpret the regulation. Fair? No. Level playing field? No, again. But that is what happens when the Board is required to give deference to the FAA.