When are Airmens’ Actions Inadvertent?

If you are a pilot or maintenance technician and have ever contemplated reporting an aviation incident or occurrence under the FAA’s Aviation Safety Reporting Program (ASRP), as set forth in the Federal Aviation Regulations, you have probably pondered the enforcement restrictions set forth in the FAA Advisory Circular (AC) 00-46E. These “restrictions” reduce the scope of when a person may successfully defend against an FAA enforcement action by asserting that he or she previously submitted an ASRP report. Specifically, the AC states that “although a finding of violation may be made [by the FAA], neither a civil penalty nor certificate suspension will be imposed” on the certificate holder under the following four conditions.

“The violation was inadvertent and not deliberate. The violation did not involve a criminal offense, accident or action under 49 U.S.C. §44709, which discloses a lack of qualification or competency. The person has not been found in a prior FAA enforcement action to have committed a violation of 49 U.S.C. subtitle VII or any regulation promulgated there for a period of five years prior to the date of occurrence. The person proves that, within 10 days after the violation or date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA.”

Any of these restrictions could complicate a decision regarding whether to submit NASA Form ARC 227. As an example, determining whether the occurrence was inadvertent and not deliberate can be daunting, especially when the occurrence to be reported must have been both inadvertent and not deliberate before the FAA will waive its imposition of a civil penalty or certificate suspension.

Until recently, the “gold standard” in interpreting the phrase “inadvertent and not deliberate,” in the context of reporting an aviation incident or occurrence through the ASRP process, and thus obtaining a “waiver of sanction” defense from a subsequent FAA enforcement action, was the 1982 case of Ferguson vs. NTSB, decided by the U.S. Circuit Court of Appeals. The court said an inadvertent act is not a “result of a purposeful choice,” just as a pilot acts inadvertently when he flies at an incorrect altitude because he misreads his instruments. The court added, “His actions are not inadvertent if he engages in the same conduct because he chooses not to consult his instruments to verify his altitude.”

In an August 2016 U.S. Court of Appeals decision, the court reviewed an NTSB administrative law judge’s decision that concluded a pilot’s failure to determine, immediately before flight, whether his aircraft was eligible for flight in Reduced Vertical Separation Minimum (RVSM) airspace was not inadvertent. In reaching this, the NTSB rejected the pilot’s affirmative defense that FAA was obligated to “waive” its 60-day suspension of his ATP certificate since he otherwise complied with all of the ASRP’s requirements. If the pilot’s actions were inadvertent, then he was entitled to the FAA waiver.

In reviewing the record of the NTSB’s decision-making process, the Court of Appeals focused on whether the pilot had an obligation to review the OpSpecs or letter of agreement before flight and to ensure that either was in the aircraft during flight. Had the pilot performed such an inspection prior to flight, he would have been aware that a valid, FAA-issued authorization for flight into RVSM airspace was not authorized.

Examining the crux of the FAA’s argument that a “pilot is always responsible for verifying that an operator is authorized for RVSM operations,” the court noted that “if such an obligation existed, it would likely have been included within the regulations that enumerate the authorizations a pilot-in-command must consult before each flight.” No such obligation appears in these regulations.

From this preliminary finding, the court determined that neither the regulations nor FAA AC requires the pilot to consult the LOA or OpSpcs before operating in RVSM airspace.

Applying these findings to the case on appeal, the court concluded that “a pilot, once aware that the (RVSM) authorization exists in the operator’s OpSpecs, has no ongoing obligation to confirm that it remains current and therefore valid.” R&WI