Congested or noncongested that is the question

[sikorskypilot]

As we all know the FAR's are for the most part are black and white, but there are some rules that can be read different ways. For example FAR part 133, What is the definition of a congested area, and who determines if it is a congested area? Does the opperator/ pilot determine or does the FAA determine? Would a warehouse all by itself in the country be considered congested or noncongested?

[MN Heli Flyer]

As we all know the FAR's are for the most part are black and white, but there are some rules that can be read different ways. For example FAR part 133, What is the definition of a congested area, and who determines if it is a congested area? Does the opperator/ pilot determine or does the FAA determine? Would a warehouse all by itself in the country be considered congested or noncongested?

 

I found this info when I searched the FAA.gov site with the words congested area definition.

 

(1) Congested area. A city town or settlement, or open air assembly of people.

[MN Heli Flyer]

I located some more infomation on the subject.

 

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

 

A. Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

 

B. Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

 

C. Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

 

D. Helicopters. Helicopters may be operated at less than the minimums prescribed in paragraph B or C of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with any routes or altitudes specifically prescribed for helicopters by the Administrator.

 

Safety is the concern for this regulation as with others.

 

I hope this helps!

[CFIAP5544]

WARNING:

 

A CONGESTED AREA - May be considered ANY AREA where people ARE or MAY BE PRESENT!!!

 

The FAA has left it up to a CASE BY CASE BASIS!!!

 

There is an obscure FAA LEGAL ORDER that explains this.

 

There is NO MINIMUM number of people or structures that designate a congested area.

[PhotoFlyer]

WARNING:

 

A CONGESTED AREA - May be considered ANY AREA where people ARE or MAY BE PRESENT!!!

 

The FAA has left it up to a CASE BY CASE BASIS!!!

 

There is an obscure FAA LEGAL ORDER that explains this.

 

There is NO MINIMUM number of people or structures that designate a congested area.

Do you have a reference, or are you going to allow this obscure legal order to remain obscure?

[delorean]

A recent NTSB hearing ruled against a pilot and defined "congested" as:

 

"A review of the history of the term congested area, and case law interpreting it, makes clear that small, sparsely settled residential areas are settlements for purposes of determining whether an area is congested within the context of Part 91 or, for that matter, Part 137. The term congested area will continue to be adjudicated on a case-by-case basis before this board. The determination must take into consideration all circumstances, not only the size of an area and the number of homes or structures, but, for example, whether the buildings are occupied or people are otherwise present, such as on roads.”

 

"....upwards of 30 homes, buildings, and structures within the area...and this renders it a congested area. It isn’t just the number of homes. [it] can be anywhere from three homes to 30 or 50 or 100. It depends on the locale and where they are, and so forth."

[JDHelicopterPilot]

That is right. Have to be real careful about this one. Even a beach with only a few people on it may be thought of as congested.

[CFIAP5544]

Here is one reference. I ment Legal Interpretation by the way.

 

http://www.faa.gov/about/office_org/headqu...lson-Interp.pdf

 

I will find the other one ASAP.

[CFIAP5544]

JUST REMEMBER

 

IF you are doing something that you shouldn't be doing and the FAA wants to bust you,

THEY WILL NO MATTER WHAT!!!!!!!

 

In one case the NTSB actually defended the pilot BUT THE JUDGE RULED THAT THE FAA WAS ALLOWED TO RE-INTERPRET THE LAW on a CASE BY CASE BASIS and the pilot lost his license for missinterpreting an altitude clearance!!! I will POST that reference as soon as possible.

[sikorskypilot]

How about for far 133 ops. Most of that is all for part 91 ops. There is a certain FAA inspector in the state of Cheese that says everything in his state is to be considered congested. Example is that if a helicopter were to lift a atv out of a 1000 acre farm field to move it 100 yards to another part of the field it is to be congested. Due to the fact that little Timmy could run on over from the farm next door to see what that cool ass helicopter was doing. At that point it would make it congested, and would require a congested area plan. How about them apples

[Gomer Pylot]

Definitions apply to all Parts, not just one. A congested area is the same for Part 91 or Part 133, and it's not a clear definition for either.

 

FAA inspectors can do pretty much whatever they want and get away with it. Consider the Bob Hoover fiasco.

Edited January 23, 2009 by Gomer Pylot

[Timbersprayer]

In my experience,

if in doubt - just submit a congested area plan for each job

that way if Fuzz show up all good/ or if POI don't like what he see's you have cya.

Pain in the ass for sure. Some times I have been told no prob do your thing not congested.

[CFIAP5544]

That is a GOOD IDEA!

[heli.pilot]

Here is one reference. I ment Legal Interpretation by the way.

 

http://www.faa.gov/about/office_org/headqu...lson-Interp.pdf

 

I will find the other one ASAP.

 

The second case referred to in this letter (Administrator v. John Wagner) cites that the helicopter pilot "should have been no lower than 1,000 feet over that congested area". I thought that the determining factor, for helicopters, was whether or not they not cause "hazard to persons or property on the surface".

 

As posted previously, 91.119(d) states:

Helicopters may be operated at less than the minimums prescribed in paragraph ( or © of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with any routes or altitudes specifically prescribed for helicopters by the Administrator.

 

My understanding was that "congested" and "non-congested" did not directly apply to helicopters, since the test for helicopters is whether or not any "hazard to persons or property on the surface" was caused. After all, the beginning part of 91.119(d) says that "helicopters may be may be operated at less than the minimums prescribed in paragraph ( or ©". The case mentioned above seems to indicate otherwise, though.

Edited January 23, 2009 by heli.pilot

[HeloJunkie]

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

 

.....

 

D. Helicopters. Helicopters may be operated at less than the minimums prescribed in paragraph B or C of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with any routes or altitudes specifically prescribed for helicopters by the Administrator.

 

 

 

OK - Maybe I am missing something here (which I sure I am)...but if D (above) is written the way it is, why all the discussion about A, B and C..? Does D not override the altitudes in A - C...?

[MN Heli Flyer]

OK - Maybe I am missing something here (which I sure I am)...but if D (above) is written the way it is, why all the discussion about A, B and C..? Does D not override the altitudes in A - C...?

 

 

I listed the complete reference so it can be viewed objectively. It is true that A-C is directed to all aircraft and the exception (helicopters) is covered in paragraph D.

 

The question is, what exactly is considered a congested area?

 

Good topic! May not find a definitive answer on this one. Common sense gets most people through life without any trouble. I hope I have enough of it to stay safe and not violate any regs.

[Timbersprayer]

SikorskyPilot - to stay on point to your original question

1. AC-133-1A (9) (A) (1 thru 4)

2. FAA- local FSDO

3. subject to POI interpretation -if building vacant other than ground support flight path meets criteria --probably would be viewed as non -conjested.

 

for 91 0pps ref: 91.119(D)

Timbersprayer

[ADRidge]

A recent NTSB hearing ruled against a pilot and defined "congested" as:

 

"A review of the history of the term congested area, and case law interpreting it, makes clear that small, sparsely settled residential areas are settlements for purposes of determining whether an area is congested within the context of Part 91 or, for that matter, Part 137. The term congested area will continue to be adjudicated on a case-by-case basis before this board. The determination must take into consideration all circumstances, not only the size of an area and the number of homes or structures, but, for example, whether the buildings are occupied or people are otherwise present, such as on roads.”

 

Does anyone know if there's a definition for area? I mean, are we talking a quarter mile, five miles, ten miles, visible distance from whatever altitude you're at, etc?

[dave7373]

I located some more infomation on the subject.

 

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

 

A. Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

 

B. Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

 

C. Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

 

D. Helicopters. Helicopters may be operated at less than the minimums prescribed in paragraph B or C of this section if the operation is conducted without hazard to persons or property on the surface. In addition, each person operating a helicopter shall comply with any routes or altitudes specifically prescribed for helicopters by the Administrator.

 

Safety is the concern for this regulation as with others.

 

I hope this helps!

 

"OK - Maybe I am missing something here (which I sure I am)...but if D (above) is written the way it is, why all the discussion about A, B and C..? Does D not override the altitudes in A - C...?"

 

 

To answer your question, no

Just because you are in a helicopter doesn't mean you can go as low as you want whenever you want. notice 91.119D removes the word (undue) before hazard. (as stated in part 91.119A)

That means in order for a helicopter pilot to go below 500 feet (except as neccessary for takeoff and landing) he must do so without any potantal hazard whatsoever, to anyone, or anything.

I've personally seen it interprited this way in court several times.

 

More often than not its when someone hit somehting wires/towers etc, and therefore damaged property on the ground, and is therefore liable, and in vioaltion of FARs.

 

In summary, if as a helicopter pilot you choose to operate below the minimums described in parts A,B,C you must be able to do so with out any posing any hazard to anyone, or anything. Any incident below 500 feet that causes damage to anything, unless landing etc. would will usually be seen as a violation of 91.119 in court. There is some grey area here on cupabilty in the event of equpiment failure, but it doesn't always change the outcome.

[sikorskypilot]

Well it's been a while but his is still a hot topic for me. While It still remains a gray area, I have had some better examples over the past year or so to guide us(operators) in the utility market. It has been said that the determination to submit a cap is left to the operator. The presence of the non paticipating public can be Controled if there is a plan or not. Crowds will gather to a helicopter lift operation like moths to a flame. But if they remain outside of the operational area, than it can still remain uncontested. If the presence of non participating public is not the issue than what about the building(s) inside the operational area. Well if they are a part of the lift and have benn vacated or were never occupied than I would again say that is not a congested area. However if you have to operate by flying over or a building is within the operational area and has to be vacated then yes a congested area plan should be submitted. If you are operating in a public area I.e. mall, downtown environment, crossing public roads, where more measures need to be taken to keep the non participating public then yes a plan should be submitted. If the lift remains on public property, I.e. warehouses, factories , plants, ect. Where control measures are not needed as much than a plan should not need to be submitted. At a power plant or factory, there are typically gates or barriers in place to keep people out that don't belong. The personnel on site could be considered participating personally, as they are usually instructed to either remain clear or, instructed to keep others from entering the operational area. So where does the contingency plan come into play. Well I have seen nothing to the fact where a contingency plan need to be submitted, and if the operator is an experienced in 133 operations, there is always a plan in place to halt the lift operation if it becomes unsatisfactory either during or before the lift is accomplished.

Some operators may only perform a handful of these types of operations a year, others may do hundredes a year. Like In my area, our Fsdo would not have the ability to accommodate the amount of caps submitted if we were to issue a plan for each lift. Others smaller fsdos wich fall into our main lift markets either lack a helicopter inspector or the knowledge to again approve the amount of caps in a timely manner. Tin good cases there are weeks in advance where lift dates are known and a plan is submitted, but there are also times where there is only a week or in extreame cases, days before a lift is needed to be completed. There is another definition that legal leaves out of the 8900 for evaluating a congested area plan. CYA.

[iChris]

So where does the contingency plan come into play. Well I have seen nothing to the fact where a contingency plan need to be submitted, and if the operator is an experienced in 133 operations, there is always a plan in place to halt the lift operation if it becomes unsatisfactory either during or before the lift is accomplished.

 

 

 

“Unlike the previous scenario, the operation site in this scenario does not appear to be located in an inherently congested area such as a town's business district. Because the factory over which the operation will be conducted is not located near any other structures, the question of whether the factory is in a congested area turns on whether there is a possibility of people gathering in that area."

 

Since a large number of people can gather in a factory, in order to make the area uncongested, the factory must be depopulated and people must be prevented from reentering the factory while the operation is taking place. In addition, the open field, parking lot, and busy road surrounding the factory also have the potential for becoming congested areas because they can contain large numbers of people." Accordingly, if any part of the operation takes place over the open field, parking lot, and busy road described in Scenario 2, those areas would also need to be depopulated, and people must be prevented from entering the area until the operation is over. Finally, no part of the operation may take place over the residential area mentioned in Scenario 2 because, as discussed above, the residential area of town is an inherently congested area.

 

Because an area is congested if it contains a large group of people, a depopulated uncongested area could potentially become congested if people wander into that area. The FAA's guidance provides one way to resolve this situation, which is by developing a contingency plan showing the means that the certificate holder intends to employ to maintain a sterile operation area. See FAA Order 8900.1, Vol. 3, Ch. 51, Sec. 6, 3-4203(E (2. The specific impediments put in place by the operator to maintain a sterile area would be specific to the operation area, but they should effectively block outside people from entering the operation area.”

 

From: Rebecca MacPherson, Assistant Chief Counsel

 

REF LINK: To what extent an operator can make a congested area uncongested

Edited June 23, 2012 by iChris

[sikorskypilot]

Funny that you bring that memorandum up. Because it is part of something that I had the chance to take part in. One of the scenarios was me, and in that case, the violation was dropped against me and the operator. We were cleared and the inspector was told to not conduct any future communication with both parties. The inspector is a fixed wing only guy, and had one hour heli time so he obviously knows all about helicopter operations. And his exact words in a ore trial meeting were "this is my airspace" and " everything is congested". The information given in the scenarios is false and miss leading to all who have seen it. It will be challenged here in the near future. The one factory (warehouse) was on a plot of land at least two to 3 thousand feet in length and one thousand feet wide. Boardered by a rail road line/fence/industrial park on one side that was 250 feet from the side of the building, (150 foot more than is required by our operation) there was 1500 ' plus space between the building and concrete highway barriers that blocked a near impassable dirt road that went to an industrial park that had crowd control watching over it. 2 200 wide retention ponds that were 500 plus feet on the other side. And a road that had all the trades at that were on lunch break at least 800 feet for the building. The road was for construction personnel only, and was closed by the gc . Again that case was dropped and no wrong doing was found. Yet they use it in a memorandum issued to regional offices to try and reinvent e wheel on how external load ops in congested areas should be viewed.

[iChris]

One of the scenarios was me, and in that case, the violation was dropped against me and the operator. We were cleared and the inspector was told to not conduct any future communication with both parties.

 

The inspector is a fixed wing only guy, and had one hour heli time so he obviously knows all about helicopter operations. And his exact words in a oral trial meeting were "this is my airspace" and " everything is congested". The information given in the scenarios is false and miss leading to all who have seen it. It will be challenged here in the near future.

 

Again that case was dropped and no wrong doing was found. Yet they use it in a memorandum issued to regional offices to try and reinvent e wheel on how external load ops in congested areas should be viewed.

 

 

The memorandum seems in agreement with your assessment and against the inspector’s statement. I agree too

 

The factory was not located in an inherently congested area and was located in an area that was easily isolated and secured from any reasonable possibility of people gathering near the work zone. The natural and installed impediments surrounding that factory rendered it uncongested. For that reason any violation should be dropped. The memorandum also points in that direction.

 

“Unlike the previous scenario, the operation site in this scenario does not appear to be located in an inherently congested area such as a town's business district. Because the factory over which the operation will be conducted is not located near any other structures, the question of whether the factory is in a congested area turns on whether there is a possibility of people gathering in that area."

 

“The specific impediments put in place by the operator to maintain a sterile area would be specific to the operation area, but they should effectively block outside people from entering the operation area.”

Edited June 27, 2012 by iChris

[500F]

OK - Maybe I am missing something here (which I sure I am)...but if D (above) is written the way it is, why all the discussion about A, B and C..? Does D not override the altitudes in A - C...?

 

Richard,

No, that is not how it has been upheld in courts. A, B, and C apply to helicopters also but helicotpers are unique in that they can go below the minimums in A B and C IF there is zero potential hazard to persons or property on the ground.

 

I know of two pilots violated for it.

 

As far as the original post. What the FSDO says goes, some are very gonerous some whant a CAP for everything, Ask, cover your butt.