Usually, safety program provides pilot immunity
To encourage the filing of incident reports, a pilot can avoid sanctions in an FAA enforcement action regarding the flight, as long as the pilot can establish that a timely report of the flight's events was made. Reports are made in strict confidence to NASA, which administers the program; the FAA does not investigate a possible violation of the regulations because of the NASA report but may do so if it learns about an apparent violation by some other independent means. In addition, any violation committed must have been "inadvertent and not deliberate." A recent case demonstrates how the FAA and the NTSB are construing this factor in deciding whether to afford a pilot the benefit of the program.
An instrument-rated private pilot departed Colorado's Telluride Regional Airport. The pilot had filed an IFR flight plan but after learning that there would be a delay in IFR departures, he decided to depart under visual flight rules (VFR). There was marginal VFR weather in the vicinity of the airport, and it was IMC to the west--the direction in which the pilot departed. The FAA alleged that after departure the pilot entered instrument meteorological conditions without activating an IFR flight plan and came within 400 to 700 feet of a Great Lakes Airlines flight on approach to Telluride. The FAA ordered a 240-day suspension of the pilot's private pilot certificate.
At trial, the FAA said that the pilot's failure to maintain the required VFR cloud clearances and the pilot's creation of a collision hazard with a passenger carrying commercial aircraft was deliberate and intentional, as well as careless and reckless. The pilot testified that he departed under VFR intending to stay VFR and that he was surprised to find himself enter IMC. He argued that his actions were unintentional and inadvertent. The administrative law judge found:
"To me it is reasonable to say that the [pilot] sitting on the ground at Telluride and looking out to the west should have realized that if he continued to climb out he was not going to be able to maintain VMC. In my view, therefore, the departure by the [pilot] and climbing out into IMC conditions, not contacting anybody to alert them to the fact, and continuing on the reciprocal when it was reasonable to also assume that other aircraft could be coming in...is not an inadvertent encounter with IMC. It was something that would have been foreseeable with a reasonable exercise by a prudent pilot under the conditions that are established under the evidence in front of me."
The judge determined that the pilot's actions did not qualify for the immunity of the ASRS and imposed a 240-day suspension on the pilot. The pilot appealed, arguing that the judge was obligated to waive sanction for the violations under the program. On appeal, the NTSB stated that,
"We have long held that the [ASRS] will not obviate the imposition of a sanction when an operator's conduct is deliberate or intentional such that it reflects a wanton disregard of the safety of others or a gross disregard for safety....We have also stated that, in general, the [ASRS] was never designed to protect those who exhibit a reckless disregard for safety....On the record of the case at hand, the facts indicate that IFR conditions were foreseeable to many witnesses and airmen in the area, and that [the pilot's] entry into IFR weather conditions was avoidable, because [the pilot] could have activated his IFR flight plan or otherwise arranged to avoid the area. Therefore, in spite of [the pilot's] reporting of the incident in accordance with [ASRS], we find that, on this record and based on our precedent, [the pilot's] unapproved entry into IMC and close proximity to another aircraft was foreseeable, and waiver of sanction under the [ASRS] would be inappropriate."
This pilot was not able to rely on his report to NASA based on the foreseeable nature of his violations. While "foreseeable" is not a factor mentioned in the FAA's Advisory Circular, the NTSB has used it to otherwise find that the pilot's flight into IMC was not inadvertent.
In my experience, it is somewhat rare for a pilot to be denied the ASRS waiver, so I hope that this does not indicate a change in view by the FAA and the NTSB. Nonetheless, the ASRS is an important program for pilots to remember in the interest of aviation safety. However, your entitlement to the benefits is not unfettered.
Kathy Yodice is an attorney with Yodice Associates in Washington, D.C., which provides legal counsel to AOPA and administers AOPA's legal services plan. She is an instrument-rated private pilot.
For more information on the Aviation Safety Reporting System, see Flight Training Online.
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