Aviation and Space Law

Back to Basics: The Kobe Bryant Crash and the General Operating Regulations of Part 91

John Gagliano and C. Federico Campbell
Aviation and Space Law

Aviation and Space Law

Winter 2021

As most readers know, basketball legend Kobe Bryant and eight others perished in a helicopter crash on January 26, 2020.  Given the reports of Instrument Meteorological Conditions in the area, within minutes of the crash many journalists and commentators jumped to the conclusion that the pilot should not have been operating under Visual Flight Rules.  Media discussion and public attention has been focused on the pilot’s history, the pilot’s qualifications, and the operator’s Part 135 limitations.  It is also worth a review of the general operating regulations in Part 91 to gain an understanding of what a helicopter pilot should have been doing given the reported weather and the communications between the helicopter and the air traffic controllers. 

This article is not a judgement or indictment of this particular pilot, nor is it intended to draw any conclusions on the crash before all the facts are made known.  Rather, this article aims to guide readers as an explanation on what is expected of all pilots operating under Part 91.  Clearly this particular pilot and the operator had heightened responsibilities under Part 135, but this article is a “back to basics” review of the Part 91 general operating procedures,[1] applied to the circumstances of this tragedy. 

Special VFR Operation Criteria:

It is apparent from the publicly released air traffic control tapes that N72EX was operating under “Special VFR” or “SVFR”  The regulatory definition of “Special VFR operations,” defined in 14 C.F.R. § 1.1, means flight operations, requested by the pilot, 1) within controlled airspace, 2) with an ATC clearance, and 3) under weather conditions that are less than basic VFR weather minimums.[2]  Helicopters (but not fixed wing aircraft) can fly under Special VFR with visibility less than one statute mile, so long as they remain “clear of clouds.” 14 C.F.R. § 91.157(b).  Helicopters (but not fixed-wing aircraft) can also take off or land under Special VFR even if the ground visibility or flight visibility at the airport is less than one statute mile.  14 C.F.R. § 91.157(c).  Helicopters can take off, land or operate with less than one mile of visibility even if the pilot is not qualified for IFR flight and the aircraft is not equipped for IFR flight.  14 C.F.R. § 91.157(b).  Flight plans are not required for Special VFR operations.  AIM 4-4-6(c).  The Special VFR clearance will not contain a specific altitude, though the controller may vector pilots at altitudes above the “minimum safe altitude” to avoid traffic conflicts.  AIM 4-4-6(c).  But helicopters (though not fixed wing aircraft) may operate below the “minimum safe altitude” provided that the operation is conducted without hazard to persons or property on the surface.  14 C.F.R. § 91.119

It is also worth noting that some airports, New York’s JFK Airport and Los Angeles’s LAX, specify that SVFR is not authorized for fixed wing aircraft; however, helicopter SVFR Operations are still available.  14 C.F.R. Part 91, Appx. D, § 3; See also FAA Chart User Guide, at p. 18 (Sept. 13, 2018).

When Pilots Should Utilize Special VFR:

Pilots may request a Special VFR clearance when operating in or transitioning through Class B, C, D, or E airspace when the primary airport is reporting VFR in VMC but the pilot believes that basic VFR weather conditions cannot be maintained in flight.  FAA Order 7110.65Y § 7-5-1(b).  Controllers will rely on the pilot to determine the current weather. AIM 4-3-26(c). 

Helicopters can request a Special VFR clearance during daylight hours or at night.  14 C.F.R. § 91.157(b)(4).  However, fixed wing aircraft can only request Special VFR at night if both the pilot and the airplane are qualified/equipped for IFR flight.  14 C.F.R. §  91.157(b)(4)

When requesting a Special VFR clearance, pilots should state their intentions so that the controller can fit the aircraft into the traffic flow.  AIM 4-4-6(c).  Controllers will issue Special VFR clearances based on pilot request, known traffic and reported weather.  AIM 4-3-26(c).  As with any clearance that ATC issues, it is the responsibility of the pilot to accept or refuse the clearance issued.  AIM 4-4-7(c). 

If Special VFR Cannot Be Maintained:

 If a pilot is in flight on a Special VFR clearance and he or she cannot stay clear of clouds then he or she has exceeded the clearance limit.  Another way to say this is the pilot on a Special VFR clearance has entered IMC in controlled airspace without a clearance.  When a clearance has been obtained, even under visual flight rules, the pilot must not deviate unless an amended clearance is obtained.  AIM 4-4-10.  If there is a deviation from an ATC clearance, that must be done under the pilot’s emergency authority.  14 C.F.R. § 91.3(b).  If emergency authority is used for a clearance deviation, the pilot must notify ATC “as soon as possible and obtain an amended clearance.” 

If Special VFR cannot be maintained, a helicopter should squawk 7700 and advise ATC that an IFR clearance is required.  If either the pilot or the helicopter is not qualified/equipped for IFR flight, then the pilot should advise ATC. 

The news has reported that the Part 135 Operating Specifications for N72EX’s final flight did not allow for instrument flight.  While Part 135 pilots are required to follow the applicable operating specifications, the pilot’s emergency authority extends to violations of the operating specifications. 14 C.F.R. § 135.19.   

Summary

Although SVFR can be a valuable tool for operating in less than ideal weather conditions, pilots should be very cautious about using it as an option.  The opportunity for inadvertent flight into IMC is much greater.  A pilot should be well prepared and equipped for this possibility before considering SVFR flight.  SVFR should never be used to “scud run” or to push limitations in deterioratings weather.

Notes:

If the weather minimums are greater than basic VFR then a Special VFR clearance is not required.  A Special VFR clearance can be issued within Class B, C, D and E surface areas and below 10,000 MSL.  AIM 4-4-6(d) and 14 C.F.R. § 91.156(a).  Special VFR Clearances are not authorized for fixed wing aircraft at certain airports.  The list of airports where Special VFR is not authorized is listed in 14 C.F.R. Part 91 Appendix D § 3.  To make things more complicated, there may be a Letter of Authorization (“LOA”) which allows fixed-wing Special VFR into areas prohibited by Part 91 Appendix D.  See FAA Order 7110.65Y, § 7-5-1(a)(1). 

[1] All pilots must know the applicable “General Operating and Flight Rules” of 14 C.F.R. Part 91 to earn a private pilot certificate. 

[2] Basic VFR weather minima include minimum required visibility, cloud clearances and other provisions as defined in 14 C.F.R. § 91.155.

John Gagliano - Gagliano Law Offices

Founder

John J. Gagliano is the founder of Gagliano Law Offices in Philadelphia, PA, which practices aviation litigation and other aspects of aviation law. He is a mechanical engineer, a former U.S. Navy pilot and he currently holds multiple pilot and flight instructor certificates including an Airline Transport Pilot certificate and turbojet type rating. Mr. Gagliano has over 22 years of professional aviation and legal experience.

C. Federico Campbell - Cyber Defense Labs

Vice President of Professional Services

C. Federico Campbell is the Vice President of Professional Services at Cyber Defense Labs. He is also a Certified Flight Instructor and the founder of TEQAIR LLC which specializes in crash/mishap, avionics and electronic systems forensics investigations. Mr. Campbell is a computer engineer and has over 19 years of experience leading digital forensic and avionics investigations in support of aircraft crash investigations.

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