Page 6 - April 2017 Twin & Turbine

Legally Speaking
by Jerry H. Trachtman
Unintended Consequences
Avoid turning an inadvertent act into enforcement action.
You have received your clearance for an IFR departure from your home airport, which includes “climb and maintain 5,000 feet.” The tower clears you for takeoff, and adds, “Amend your initial altitude, climb and maintain 1,500 feet.”
You take off, and the tower tells you to contact departure. You contact departure, and the first thing the controller says is, “Radar contact, say altitude.” You look at your altimeter and see you are approaching 3,000 feet. You tell the controller, “Sorry, do you want me to descend?” He replies with a heading change to avoid a traffic conflict, and clears you to 5,000 feet. He tells you, “Possible pilot deviation call (555) 555-5555 when you land.”
You are familiar with the Aviation Safety Reporting Program and decide you need to file a NASA report, because that will get you off the hook for an altitude bust if an enforcement action is initiated against you – or will it?
FAA Advisory Circular 00-46E describes the Aviation Safety Reporting Program (ASRP), and talks about what is well known among pilots as a “NASA report.” Under the ASRP, if there is a violation of FAA regulations and the pilot proves that within 10 days after the violation (or the date the pilot became aware or should have been aware of the violation) he or she delivered or mailed a written report to NASA (the “NASA report”), a finding of a violation can be made but there will be no certificate suspension imposed.
The only catch is that there are exceptions. The violation cannot involve a criminal offense, an accident, or an action under 49 USC 44709 (a “709 re-examination”), which discloses a lack of qualification or competency. In addition, there cannot have been a prior enforcement action resulting in a finding of a violation of regulations within the previous five years. Finally, and what seems to result in the most FAA challenges to using a NASA report (using it is not the same as filing it), the violation must be “inadvertent and not deliberate.”
You properly completed your NASA report and filed it on time, and you are hoping that if an enforcement action is brought against you and you decide to use it, the FAA will accept it and agree to a waiver of sanction. Your altitude bust was certainly inadvertent and not deliberate, right?
Not so fast. According to the FAA, “inadvertent” and “not deliberate” are
4 • TWIN & TURBINE
April 2017