My Pilot Protection Services/Legal Services Plan colleagues and I frequently extol the benefits of the Aviation Safety Reporting Program (ASRP), or the NASA report as it’s commonly called, to anyone who will listen. We point out that filing a NASA report can produce a waiver of sanction if the FAA seeks enforcement action against the reporting pilot. If accepted, the waiver is a significant benefit that can keep us flying. Four caveats or restrictions govern the acceptance of the waiver. These restrictions are listed in Advisory Circular 00-46E. Here we will focus on the one that requires that “the violation was inadvertent and not deliberate.”
Let’s begin by agreeing that most of us do not head to the airport intent on violating a regulation. As a group, most of us pilots are quite compliance-minded; we want to do the right thing whether by nature or training or both. That said, we sometimes screw up and then, of course, we seek to mitigate the misstep by filing a NASA report. And, if the matter at hand elevates to legal enforcement, we expect that the FAA will automatically accept it and waive the sanction. Not so fast. While the FAA is generally quite reasonable in accepting NASA reports, there are occasions when it asserts that our actions do not qualify as being inadvertent and not deliberate and refuse to grant a waiver. In some instances, an appeal to the NTSB is necessary to resolve the matter.
At an NTSB hearing, it is the respondent-pilot who has the burden of proving that his actions were indeed inadvertent and not deliberate. There are a few notable cases worthy of review. In one case, a pilot was cited for squawking the wrong code in the Washington, D.C, Air Defense Identification Zone (ADIZ), now the Special Flight Rules Area (SFRA). Prior to departure from Martin State Airport, which was inside the ADIZ at the time of the incident, the pilot allegedly asked the tower to confirm that his transponder was operating properly. The tower was not equipped to do so and the pilot took off without verification that he was squawking the appropriate code. The NTSB stated that his actions did not appear to have been deliberate, but they held that his conduct (taking off squawking the wrong code) was not inadvertent, because he decisively operated in the ADIZ despite suspecting a mechanical problem. Additionally, the pilot failed to produce evidence to support his claim that the transponder was faulty. He was therefore not afforded a waiver of sanction under NASA/ASRP.
In another case, a Cessna Citation pilot was cited for failing to comply with ATC instructions. The pilot was instructed to descend from FL 350 to FL 310 for traffic. The pilot claimed that he could not descend due to “operational necessity.” In effect, he refused to comply because he had not planned for an early descent and that operating at the lower altitude would compromise his fuel reserves. After some back-and-forth exchanges between the pilot and ATC, the pilot began the descent, but not before ATC diverted an American Airlines flight due to a potential conflict. The FAA pursued action and issued an order suspending his pilot certificate and the pilot appealed. Most relevant to this article is that on appeal the NTSB found that the pilot did not qualify for a waiver of sanction under NASA/ASRP. The NTSB held that that the pilot’s “…failure to comply with ATC instructions in a timely manner was deliberate and knowing, rather than by mistake or due to a lack of knowledge.”
Be advised that even a lack of knowledge may be a determining factor in NASA/ASRP eligibility. In recent history, we’ve heard of the FAA taking the position that a pilot’s failure to get a briefing (FSS or DUATS) is a basis to deny a waiver of sanction under the program. Interestingly, they contend that if a pilot fails to get a briefing and then enters a TFR, for example, the violation does not qualify for a waiver because the pilot made a deliberate choice not to get a briefing. The presumption, of course, is that the TFR detail would be contained in a notam.
These cases and this discussion should not discourage pilots from filing NASA/ASRP reports. It should remind us, however, that the waiver of sanction benefit afforded by filing a NASA report is subject to restrictions.
