AircraftOwner Online

    The pilot of an older twin jet Aero Commander recently learned a hard lesson about the use of the NASA form. The facts of the case were pretty simple. The pilot, one of two crewmembers, took off from Henderson Executive Airport in Henderson, Nevada on an IFR clearance with one passenger aboard. Departure cleared the flight to 7,000’. The flight was handed off to Las Vegas Center which cleared the flight to 11,000’. The weather at that point in the flight was stormy, with clouds and ice. There is a dispute about what happened next.

    The pilot and the second-in-command testified: that they leveled off at 11,000’, that a cross-check of the two altimeters confirmed that, and that they remained level at 11,000’ for 20 to 30 seconds before receiving their next clearance. The FAA had evidence which showed that the aircraft climbed from 10,900’ to 11,100’ in two seconds, and then to 11,200’ two seconds later. Another five seconds later, the aircraft was at 11,500’. Fifteen seconds later, the aircraft shows to be at 12,000’ and appears to remain at 12,100’ for several sweeps of the radar. The aircraft climbed to an altitude of 12,300’ at which point it was in conflict with a Jet Blue flight. The Center controller instructed the pilot to climb his aircraft “expeditiously” to 13,000’. Immediately after this transmission, the aircraft’s transponder stopped showing a radar return. The case does not indicate whether Center advised the pilot of the Jet Commander that there was a conflict with another aircraft. The radar return from the transponder reappeared 90 seconds later when the aircraft was at 16,300’.

    The FAA brought an action against the pilot seeking to suspend his ATP certificate for 45 days because, it alleged, he had deviated from a clearance without authorization.

    The pilot claimed that he believed that he was level at 11,000’ the whole time, and that, when he was given instructions to climb expeditiously to 13,000’, he did so, and that he did not believe that he had departed from that altitude until he was instructed to climb to 13,000’. The pilot indicated that he felt that, since the radar tracking seemed to confirm the FAA’s version of the vertical profile of the flight, what must have happened was that there had been a failure of the aircraft’s Air Data Computers, which had caused the altimeters to read incorrectly.

    The pilot filed a report under the Aviation Safety Reporting Program (the “NASA Form”), and felt that this report would save him from the FAA’s requested sanction of a 45-day suspension of his ATP certificate. But he didn’t bargain on how the rules regarding the benefits of the NASA Form are interpreted by the FAA and the NTSB.

    The Aviation Safety Reporting Program was set up to encourage pilots to report safety problems to the FAA in such a way that they would not be punished for having come forward. NASA was chosen as a neutral agency which would receive and process the reports. Among the things that NASA does when it receives a report is to remove the data that identifies the pilot (or other certificate holder, for instance Controllers) who filed it. As an incentive to certificate holders to participate in the program and to file these reports, even when the safety issue might have involved a violation of the FAR’s, a provision was inserted that provided that “the Administrator may waive the imposition of the sanction, despite the finding of a regulatory violation, as long as certain other requirements are satisfied.” As usual, the Devil is in the details, and those “certain other requirements” are the details that are the problem.

    There are four exceptions to the “waiver of sanction” provision, although the FAA treats them as if there were actually five: (1) the violation was inadvertent and not deliberate; (2) the violation did not involve a criminal defense, accident, or action found at 49 U.S.C § 44709; (3) the person has not been found in any prior FAA enforcement action to have committed a regulatory violation for the past five years; and (4) the person completes and mails a written report of the incident to NASA within 10 days of the violation.

    In this case, as in many of the cases, the question was whether an unintended climb past the clearance altitude was both “inadvertent” and “not deliberate”. Although it might appear that these words and phrases are merely synonyms being used for emphasis, the FAA has interpreted them to be two, separate items which the airman must prove in order to qualify for the waiver of the sanction being sought. In this case, the Administrator found that the airman had failed to prove his defense that the violation was both “inadvertent” and “not deliberate” (because of some confusing language in the way the Judge recited his reasoning, the case was sent back to the Judge by the NTSB – sitting as an appellate panel, but the result will most likely be the same).

    There were some facts that will make it very difficult for the airman to continue to show that this was strictly an instrument problem. For instance, almost immediately after ATC requested an expeditious climb to 13,000’, the aircraft suddenly stopped squawking its Mode C altitude on its active transponder for 90 seconds. The crew did not report a problem with the transponder, however, nor did they switch to their number two transponder. The aircraft had been in IMC and yet there was no squawk on any records of either an ADC failure or a transponder failure entered in the logs or in any other record.

    Additionally, the FAA was able to show that, although the aircraft’s avionics had experienced numerous problems in the past, just six days prior to the incident, the aircraft had been in the shop for its pitot static certification. The notes on the repair card showed that there were two separate Air Data Computers in the aircraft, one feeding the pilot’s instrument panel and the other feeding the co-pilot’s instrument panel. Both instrument panels were tested for altitudes up to and including 30,000’ and checked OK. The transponders were also checked and found OK. The system was certified and approved for return to service.

    There was also a question raised about the potential to have noticed the climb by crosschecking other available instruments and possible visual cues. The crew was not able to demonstrate that they lacked the ability to have noted the continued climb.

    Here, the Administrative Law Judge clearly did not believe that there had ever actually been an instrument problem (a “mechanical”) at all. But, he noted that, even if there had been such a mechanical problem, the crew failed to carry its burden of proving that there was some reason that they could not have noticed it and either complied with their clearance or reported the instrument problem and requested assistance. Therefore, while the Judge found that instrumentation problems are “not deliberate”, there was no showing that the violation which resulted was due to “inadvertence”. The Judge said that, if there are unruly passengers in the back which distracted the pilot from his duties, it might have constituted “inadvertence”, but that mere inattention does not constitute inadvertence. The case is Babbit v. Ricotta, NTSB Order EA-5519 (April 19, 2010).

    The Aviation Safety Reporting Program is a very valuable program which has led to many advances in safety. It is also a great benefit to pilots who stumble into safety and regulatory traps that were not of their own making. But it is not a cure-all. Just because you file a NASA form does not mean that you will have a penalty waived. You must file within 10 days of an event – don’t delay. But, if you know that someone is likely to report you for a violation, and you have the time, you really should talk to an aviation attorney to help you fill out and submit the form, and to alert you to whether or not the form is likely to be of assistance to you in any eventual prosecution.