Would a NASA form help?

I emailed the NASA ASRS folks today to ask them if there was any DC
ADIZ
exception to the ASRS immunity policy. I received the following
reply:

"This had come to our attention numerous times when the TFR/ADIZ
first
became a focus after 9/11. We received a clarification that the ASRS

limited immunity provisions would apply without difference. However,
there
are still some FAA people who think that there is some higher power
over
these type of violations, but we had the FAA Legal Office weigh in
and this
was not true."

--Gary

That was a quick response from NASA. Thanks for passing on the info.

Jesse

Charles O'Rourke wrote:
Well, I realize there is a distinction safety-wise. But ASRS does
define a threshold of error, doesn't it? The "lack of qualifications
or
incompetance" test. It seems you'd be a lot more likely to meet that

test if you cross right over the departure end of the runways without
a
clue than if you accidentally bust the edge of the Class Bravo.

Charles.
-N8385U


I may be wrong, but I think that the wording regarding lack of
qualifications or incompetence comes from 49 CFR 44709. After reading,
my interperetation is that you must be found to be deficient via an
inspection. I'm thinking a ramp check instance. The other
qualifications for action under 44709 are a sonic boom violation (not
in a 150...) or violating the fish & wildlife act of '56.

I'd be curious to know if this interperetation is correct.

JW

Gary Drescher wrote:

So even though the President has to obey the judiciary, the NTSB doesn't? Is
there a documented example of such defiance by the NTSB?

Tons. The procedure if you are charged with a violation is that your case is
heard first by an FAA board. If you object to their ruling, you can appeal it to
a law judge. If either you or the FAA objects to the judge's ruling, you or they
can appeal to the 7 member National Transportation Safety Board. Their ruling is
final -- there is no appeal.

Remember that you have not been charged with a crime. You have been charged with
violation of the FAA rules instituted for the safety of the American public. The
judicial branch does not have the final say.

The NTSB is infamous in pilot circles for reversing the judges' decisions and
reinstituting (at least in part) the original penalty applied by the FAA.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

"George Patterson" wrote in message
news:E5che.41$Vu6.14@trndny03...
Gary Drescher wrote:

So even though the President has to obey the judiciary, the NTSB doesn't?
Is there a documented example of such defiance by the NTSB?

Tons.

Even one will suffice. But can you cite any documentation, please?

If either you or the FAA objects to the judge's ruling, you or they can
appeal to the 7 member National Transportation Safety Board. Their ruling
is final -- there is no appeal.

What leads you to believe that?

Thanks,
Gary

If either you or the FAA objects to the judge's ruling, you
or they can appeal to the 7 member National Transportation
Safety Board. Their ruling is final -- there is no appeal.

I thought you could take it to Federal Appeals Court...

http://www.kscourts.org/ca10/cases/2001/09/00-9500.htm

....and thence to the Supreme Court, although I don't think SCOTUS has
ever accepted such a case...

Gary Drescher wrote:

I emailed the NASA ASRS folks today to ask them if there was any DC ADIZ
exception to the ASRS immunity policy. I received the following reply:

"This had come to our attention numerous times when the TFR/ADIZ first
became a focus after 9/11. We received a clarification that the ASRS
limited immunity provisions would apply without difference. However, there
are still some FAA people who think that there is some higher power over
these type of violations, but we had the FAA Legal Office weigh in and this
was not true."

Interesting. From AOPA --

FAA enforcement action likely

Hard to believe, but the media got it wrong. Again. Despite some news reports to
the contrary, the FAA has not issued any action against the pilot of the Cessna
150 that wandered into the country's most restricted airspace on Wednesday. Not yet.

In an exclusive interview, the FAA's spokesman, Greg Martin, told AOPA: "The
seriousness of the incident merits the most thorough and careful examination
possible of all pertinent information related to this incident. Once that has
been completed, we will take all appropriate steps with respect to enforcement
action."

On the basis of that, it sounds like just a matter of time before the pilot,
Hayden Shaeffer, will be served with the papers indicating the FAA's intentions
regarding his flying privileges. AOPA has received a very high volume of calls
and e-mails regarding the incident. By far, the vast majority of the sentiment
favors the strongest possible action against the pilot.

Martin indicated that the final outcome is likely to occur next week. The most
serious action the FAA could take would be an emergency revocation of Shaeffer's
certificate. In that case, he could appeal the emergency revocation to an NTSB
administrative law judge, or he could apply for a new certificate in a year,
which would only be issued if he passes knowledge and practical tests.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

"George Patterson" wrote in message
news:RQche.357$KQ6.183@trndny02...
Gary Drescher wrote:

I emailed the NASA ASRS folks today to ask them if there was any DC ADIZ
exception to the ASRS immunity policy. I received the following reply:

"This had come to our attention numerous times when the TFR/ADIZ first
became a focus after 9/11. We received a clarification that the ASRS
limited immunity provisions would apply without difference. However,
there are still some FAA people who think that there is some higher power
over these type of violations, but we had the FAA Legal Office weigh in
and this was not true."

Interesting. From AOPA --

FAA enforcement action likely

Naturally the FAA will want to come down hard on this guy. But that has no
bearing on whether they can take any action against him if he meets the
stated ASRS immunity conditions. (I hope for his sake that he submits an
ASRS report by the deadline.)

--Gary

Gary Drescher wrote:

Even one will suffice. But can you cite any documentation, please?

A Ramp Check
(adopted from May 1996 AOPA Pilot)

A legal decision of the National Transportation Safety Board provides a look at
an actual FAA ramp check. The case shows us how a few technical violations,
coupled with some prior antagonism, can escalate into a serious problem for the
pilot of the flight being checked - in this case, a 90-day suspension of the
pilot's ATP certificate. The Board's decision leaves the pilot's
responsibilities in a ramp inspection cloudy.

It was the day before Thanksgiving, 1993. The pilot was captain of a Learjet
carrying some cargo from Sparta, Tennessee, to Monroe, Michigan. It was a
commercial flight operated under Part 135 of the Federal Aviation Regulations.
The flight made a refueling stop at Smyrna, Tennessee — which is only some 45
miles from Sparta — because of the low price of fuel at the airport there. The
pilot had called ahead to arrange with the fixed base operator at Smyrna for a
"quick turnaround." The stop was to take no more than 10 minutes. As it turned
out, it took much longer, and the second stage of the flight was eventually
canceled.

At the time that the Lear landed at Smyrna, there were two inspectors from the
Nashville Flight Standards District Office who were at the airport to talk to a
woman who owned a flight school that was having some problems. She wasn't
available, and as they saw the Lear taxi in, the inspectors decided to do a ramp
check on the Lear.

As the airplane parked, they approached it, and at least one of them presented
his credentials to the pilot, announcing the ramp inspection. According to the
captain, one of the inspectors refused to present his credentials. There had
been some prior antagonism between the inspectors and the company operating the
flight, and some litigation in federal court, but the decision gives no details.

It was an unusually thorough inspection. At the request of the inspectors, the
pilots presented their pilot and medical certificates, the aircraft registration
and airworthiness certificates, the operations manual and the operations
specification of the FAR Part 135 operator, the minimum equipment list, the load
manifests, and the shipping papers for the cargo being carried. According to the
evidence, one of the inspectors was going through the operations manuals page by
page. The inspectors were allowed into the aircraft, and they even rummaged
through the cargo. The pilots provided everything the inspectors asked for,
though things got a bit testy as the inspectors seemed to be taking their time
in an obviously time-critical situation, and the captain overheard some negative
comments. The estimates of how long the inspection took ranged from 40 to 50
minutes to as long as an hour.

After that thorough review of the documents, the inspectors found two problems
that I call "technical." They found errors in the load manifest for the flight
from Sparta to Smyrna, and they found that an IFR flight plan had not been filed
for that flight.

Even though, on the flight to Smyrna, the Lear was more than 3,000 pounds under
allowable gross weight and well within center-of-gravity limits, the load
manifest was technically in error. The copilot erroneously used the standard
average weights of 165 pounds for each of the crewmembers (as allowed on a
larger airplane he had been flying), for a total of 330 pounds, instead of their
actual weights which totalled about 490 pounds. Also, the weight of the cargo
was listed as 330 pounds instead of the actual weight of 520 pounds. The weight
of the cargo listed on the shipping papers was in kilograms, and the 330-pound
figure used by the crew was given to them by the person who delivered cargo to
the airplane - which was the usual practice. In any event, technically, the load
manifest was wrong.

As for the absence of an IFR flight plan, the operations specification did
require that turbojet airplane flights conducted under Part 135 must be operated
under IFR though there seemed to be some confusion in the ops specs. However,
the flight, as short as it was, was in constant communication with air traffic
control during the entire flight, under radar contact, utilizing flight
following, but, technically, not IFR.

The problems really became exacerbated when one of the inspectors wanted to
check the fuel load for the next leg of the flight. The drivers of the FBO's
fuel trucks, under instructions to top off the tip tanks, refueled the airplane.
The Lear has a fuselage tank — a "trunk" tank, and filling the tip tanks did not
necessarily mean that the fuselage tank would also be full. To determine the
amount of fuel in the fuselage tank, the inspector asked the pilot to turn on
the aircraft's Master switch so that the fuel gauge could be read. The pilot
refused, telling the inspector that he was in a hurry. The pilot later testified
to his understanding that while he was under obligation to allow access to the
airplane and the paperwork, he was not under obligation to do anything like
turning on the Master switch.

He had not been asked to do anything like that in previous ramp checks. And, his
understanding had been confirmed in conversations that he had with other pilots
and FAA inspectors.

The inspector then demanded an en route inspection, presumably to be on board
when the Master switch had to be turned on and the gauge could be read. The
pilot, now with the added fuel, refused to conduct the flight with the inspector
on board, saying that the aircraft would be over gross weight if it took off
with the inspector on board. The inspector suggested that the pilot burn off 200
pounds of fuel before takeoff. The pilot didn't consider that suggestion viable
and walked away from the aircraft. The flight was canceled. Another jet was
dispatched to complete the flight. The crew repositioned the Lear to another
airport in Tennessee and then got in their cars to try to make it home for
Thanksgiving.

The inspectors sent out three letters, to the pilots and the operator, notifying
them that this incident was under investigation. When the operator received the
letter, the operator sent a fax to the pilots, who were on a trip, grounding
them and telling them to report to Houston for an employment evaluation
interview and retraining. Company officials believed that if they were tough on
the pilots, that would satisfy the FAA and the matter would be dropped. That was
not to be, at least not for the captain. The decision does not tell us what
action was taken against the company or the copilot.

Ultimately, the FAA issued an order suspending the captain's ATP certificate for
90 days, charging him with several regulatory violations, including preparing an
inaccurate load manifest, failing to operate the flight IFR as required by the
operations specifications, and failing to allow the inspectors to conduct the
ramp inspection. The FAA also charged the pilot with carelessly endangering life
or property.

The captain appealed the suspension to the NTSB. A hearing was held before an
administrative law judge, who affirmed the FAA in part and reduced the
suspension to 45 days. While the judge found that the FAA request to turn on the
Master switch was reasonable, he also found that the captain's refusal was also
reasonable. He did not think it reasonable for the FAA to expect the captain to
burn off 200 pounds of fuel in order to accommodate the en route inspection. He
threw out the two charges related to interfering with the ramp inspection and
reduced the suspension. Both the captain and the FAA further appealed the law
judge's decision to the full five-member Board. The full Board granted the FAA's
appeal and reinstated the 90-day suspension. It denied the captain's appeal.

The full Board agreed with the FAA that by refusing to turn on the Master
switch, the pilot prevented the inspectors from completing the inspection. The
Board rejected the pilot's argument that he was not required by regulation to
assist the FAA in its inspection. The Board also said that the expense to the
carrier of burning off 200 pounds of fuel was "minimal." The fact that "both
sides may have become impatient with one another" does not warrant a reduction
of the sanction. It affirmed the FAA position that the violations "potentially"
endangered others. It reinstated the 90-day suspension.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

Gary Drescher wrote:

Naturally the FAA will want to come down hard on this guy. But that has no
bearing on whether they can take any action against him if he meets the
stated ASRS immunity conditions. (I hope for his sake that he submits an
ASRS report by the deadline.)

Well, they've done it before.

From AvWeb 11/13/03

TFRs, ASRS, And Avoiding Enforcement Action...

The pilot who plodded along in a Mooney M20 above the Potomac River on Monday
morning (11/10/03) flew within eight miles of the White House, and managed to
intrude not only into the Air Defense Identification Zone, but also its inner
ring, the Flight Restricted Zone, which extends in a radius of 15 nm from the
Washington Monument.

In some cases of piloting errors, filing a reporting form within the Aviation
Safety Reporting System can sometimes offer some level of "immunity" -- against
sanctions, not against prosecution.

FAA, spokesman William Shumann told AVweb, "In those cases where a penalty was
imposed even though an ASRS report was filed, it might be because the pilot
didn't check NOTAMs or otherwise comply with FAR 91.103, which requires a pilot
to 'become familiar with all available information concerning that flight.'" As
for satisfying those requirements, "If one wants to be legalistic, the Automated
Flight Service Stations are the only 'official' source of information, and DUAT
is the only 'authorized' source outside of AFSS," but that applies only to Part
121 and 135 -- not Part 91 operators.

Part 91 operators "can use whatever sources of weather and other information
they wish to meet the requirement of getting all the information necessary for a
safe flight," said Shumann. Concerned Part 91 operators may feel more
comfortable using only the "official" sources listed above -- regardless of the
type of operation.

The Washington ADIZ has been there for six months now, and while it has not been
decreed a permanent fixture, "There is no indication that it is going to go away
anytime soon," says Shumann. So for pilots not only in the Northeast, but
anywhere, it goes without saying: check NOTAMS and choose your information
sources wisely. And if you ever do find an otherwise friendly F-16 off your
wing, don't forget your intercepting signals, and intercept procedures.

....In The Aftermath Of Another Incursion

Could Monday's incursion of White House airspace by a Mooney pilot actually be a
blessing in disguise? It may turn out that way if it highlights what's becoming
an increasing frustration for the FAA -- and GA pilots. Since Feb. 10, when the
ADIZ was put in place in Washington, it has been violated more than 600 times.
"Frankly, we're a bit frustrated that pilots are still violating it, and we
don't know why," the FAA's William Shumann told AVweb yesterday. "It's on the
charts, it's on our Web site."

Pilots who violate the ADIZ (so far none have been discovered to be full-fledged
evil-doers, or even to harbor any ill-intent) generally get a 30- to 90-day
suspension of their certificate, Shumann said, but each case is handled
individually. The range of possibilities does include revocation. It might be
more understandable that pilots can be tripped up by Temporary Flight
Restrictions that appear with no warning (like those that follow the president),
but it seems it would be tough to miss the ADIZ and the FRZ. The FRZ has been
violated much less often than the ADIZ, Shumann said.

Jean Mitchell, a spokeswoman for the Secret Service, told The New York Times the
pilot had thought he was abiding by the flight restrictions around Washington,
not realizing they had been changed after the terrorist attacks. The Secret
Service was satisfied that he had not intended any harm, Mitchell told the Times.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

"George Patterson" wrote in message
news:l8dhe.75$4d6.71@trndny04...
Gary Drescher wrote:

Even one will suffice. But can you cite any documentation, please?

A Ramp Check
(adopted from May 1996 AOPA Pilot)
...

Thanks. But there's no assertion there that the full Board's decision is not
subject to judicial review (let alone any *evidence* for such an assertion).
Think about it--how could the NTSB possibly have acquired such an
astonishing power? Neither Congress nor the President has such a power, nor
the ability to confer such a power on any other person or group.

By the way, here's what the NTSB itself says about it: "If either the FAA or
the airman is dissatisfied with the judge's decision, a further appeal may
be taken to the NTSB's full five-member Board. If the airman or FAA is
dissatisfied with the full Board's order, either may obtain judicial review
in a federal appeals court. However, the FAA can only appeal the Board's
order in cases that it determines may have a significant adverse impact on
the implementation of the Federal Aviation Act."
(http://www.ntsb.gov/abt_ntsb/olj.htm)

--Gary