Is the FAA After Your Ticket?

Most of the time, if a controller gives you a phone number, it’s not good news. Generally it means you’ve made a serious error and there is a chance that you will suffer some punitive consequences as a result of that mistake. The magic words that should raise the hairs on the back of your neck are “possible pilot deviation.”

It goes without saying that you should remain vigilant as you fly around the national airspace system. You need to know the rules and remain within the confines of the rules. But there may be times when you make an honest mistake. And if you do, you’re more likely to get caught today than you were five years ago.

Unfortunately, the possibility that you will at some point make a mistake is far from remote, but there are ways to protect yourself from repercussions from those errors, as long as they’re not gross breaches of regulations. But the window of opportunity is limited. More on that later.

Since 2008, there have been big changes in the procedures of ATC reporting of incidents, such as loss of separation of airplanes. The object of the new reporting programs, according to the FAA, is to “capture data to analyze in order to get to the root cause of problems before accidents or incidents occur.” The FAA also says “the emphasis is on safety, not punishment.”

The FAA is doing a good thing by gathering as much data as possible in the interest of increasing safety. But as a pilot you need to be aware that your N-number may have been entered into several reports recently and may be reported more frequently in the future. And some changes in the way ATC is reporting deviations could make you more likely to find out about a pilot deviation later.

A new program, termed the Air Traffic Safety Action Program (ATSAP), was introduced in 2008. The program is similar to the Aviation Safety Action Programs (ASAP), established by the FAA for air carriers, and the NASA ASRS (Aviation Safety Reporting System) program, implemented in 1976, in which pilots are encouraged to report incidents voluntarily and anonymously. But even though your N-number might be included in an ATSAP report, you should not worry because the reports are sent to a third party, said a NATCA representative who wished to remain anonymous. The only reports that are passed on to the FAA are reports that, after analysis and possible further investigation, result in changes within the system. And details from the ATSAP reports, such as N-numbers, are apparently not passed on to the FAA.

More on MOR
The reports you should possibly be concerned about are new mandatory reports and reports that are electronically generated.

An FAA document with the subject "Air Traffic Organization Occurrence Reporting," which went into effect on Jan. 30, outlines procedures for what have been termed mandatory occurrence reports (MORs). MORs are reports that controllers are required to file as a result of what the FAA calls an "occurrence." Examples of occurrences that controllers must report include loss of separation with terrain, or with another airplane, whether in the air or on the ground, loss of communication, landing without a proper clearance or entering unauthorized airspace.

As far as pilot deviations are concerned, these types of controller reports are not new. According to the FAA and several controllers I spoke with, they simply got a new name. These are the types of reports that would result in the controller stating “N12345, possible pilot deviation, advise you to contact SoCal Approach at 123-456-7890.”

While the FAA insists there have been no changes to how pilots are being reported, there are some indications that new reporting procedures could lead to an increase in pilot deviations. One new reporting system that could definitely wreak some havoc is the Traffic Analysis Review Program (TARP), which is in its final phases of being implemented. TARP is a type of software that automatically reports loss of separation occurrences within the terminal environment. Full implementation may be complete by the time you read this, and the software appears to have already caused some pilots headaches.

A document issued by the Air Line Pilots Association (ALPA) to its members on May 15 lists three incidents in which flight crews were involved in seemingly minor incidents that led to pilot deviations (PD) being filed. The problem for the pilot in each incident was that the PD was issued too late for the pilot to file an ASAP report, which must be submitted within the time stated in the ASAP memorandum of understanding (MOU) between the FAA, the airline and the union (if one is involved). The window of opportunity could be as little as 24 hours.

ALPA blamed the new MOR process for the pilot deviation reports. However, the FAA stated that the cases had been reported by TARP. One of the pilots in the report had even been told by the controller that “there had been no loss of separation, and it was not a problem.” The problem was that the controller did not know that TARP had automatically sent a report. MOR and TARP reports are both entered into an FAA-wide program called CEDAR (comprehensive electronic data analysis and reporting), the only difference being that MORs are entered by a person whereas TARP reports are filed automatically, so the controller isn’t aware that a report is generated and may unknowingly provide the pilot with wrong information.

As a result of these incidents, the same ALPA document makes a serious recommendation to its members. “We will strongly encourage all pilots to file ASAPs whenever anything which could possibly be categorized as a violation occurs,” it said. It also stated: “Do not let assurances from ATC convince you that an ASAP report is somehow unnecessary.”

The ALPA report further went on to say that there was a 40 percent increase in pilot deviations filed against Delta pilots during the first 30 days after the implementation of the new procedures, but that “since March 1, the number of deviations filed has gone down dramatically.”

On the contrary, since Jan. 30, “I haven’t seen any increase in remedial training,” said Pat Carey, a designated pilot examiner who gets recommended by the Flight Standards District Office (FSDO) in Los Angeles to conduct such training for pilots who have been involved in a PD. In fact Carey claims he’s seen a decrease in remedial training, which he partially credits the FAASTeam program for.

However, Carey has been seeing stricter penalties for flight instructors.

“Flight instructors should be aware that they are being held accountable for their students more and more by the FAA,” he said. “We had a case at Santa Monica where a flight instructor lost his certificate over what his student did.”

That student pilot had crash-landed into a backyard at the departure end of Runway 21, an accident he miraculously walked away from. Carey also relayed a story of a local CFI who was issued a so-called 709 ride (more on this in a bit) because a student, who was a licensed pilot, landed on a parallel runway while the instructor was in the airplane.

Unfortunately, it appears that how much trouble you as a pilot get into as a result of a mistake depends on which controller is on the airwaves that particular day or who at the FSDO receives your pilot deviation report. If you’ve made a mistake or feel that something happened during a flight that wasn’t quite right, file a NASA ASRS report. It will take only a few minutes and may save you a big headache in the future.

The ASRS report will provide you immunity from most incidents, as long as you file the report no more than 10 days after the occurrence. Filing a NASA ASRS report will not, however, eliminate punitive action if you’ve clearly violated FAA rules, such as being caught flying under the influence of alcohol or drugs, or are found to have purposely compromised air traffic safety.

What If?
So what happens if you make a mistake that falls under the mandatory occurrence report criteria or get picked up by the TARP? After the MOR or TARP is entered into the CEDAR program, the information is analyzed, and it is determined whether further action is required. If it is determined that you made a pilot deviation, you will be contacted by the FSDO.

What happens next, it appears, is up to the person you run across. Your FAA inspector could, after a discussion, close the case with no further action.

Another possible outcome is remedial training. As long as you meet certain criteria (see sidebar), the FAA inspector could recommend remedial training, in which case you can continue to exercise the privileges of your pilot certificate.

If you have tough luck or made a fairly serious error, you may be asked to do a check ride under 49 USC 44709, also called a 709 ride. This flight test is more stressful than any of the flight tests you've taken for any of the pilot's certificates you've achieved because there is no opportunity for a retake. If you fail the ride, the FAA representative conducting the test will revoke your ticket.

Finally, there are pilot deviations that most likely will result in a suspension or immediate revocation of the pilot's certificate, such as if you bust a temporary flight restriction (TFR), purposely fly recklessly or carelessly, or are caught flying under the influence of alcohol or drugs.

It appears that the FAA takes the position that, if you are aware that you made an honest mistake, so much so that you filed a NASA ASRS or ASAP report, you are more or less immune from repercussions. But if you were unaware that you made a mistake or purposely flew against the FARs, you need to undergo further testing or remedial training or you risk losing your certificate. What effect the increase in reports will have on you remains to be seen. But the best way to keep your certificate safe is to follow the rules, remain vigilant and file a report if you get any sense that an error has occurred.