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NTSB Rejects Fatigue As A Defense For Violations Of Federal Aviation Regulations


In a recent FAA enforcement action, Administrator v. Kooistra, the FAA alleged the airman committed a number of operational errors in violation of FARs 91.9(a) (requiring compliance with an aircraft's operating limitations), 91.13(a) (careless and reckless), 91.117(a)91.123(b) (requiring compliance with ATC instructions), and 91.703(a)(3) (requiring a person operating an aircraft of U.S. registry outside the United States to comply with FAR Part 91 to the extent that it is not inconsistent with the applicable regulations of the foreign country where the aircraft is operated). The FAA issued an order suspending the airman's airline transport certificate for 60 days and the airman appealed to the NTSB.

At the hearing before the administrative law judge ("ALJ"), the airman did not deny the operational errors, but rather asserted a number of affirmative defenses including that his violations were justifiable based on the fact that he was suffering from fatigue. At the end of the hearing, the ALJ acknowledged the airman's fatigue defense, but stated "[t]he aspect of fatigue...cannot excuse an Airline Transport rated pilot who at all times must exercise the very highest standard of care, judgment and responsibility which the complete record shows that was not exercised by [the airman]." The ALJ affirmed the FAA's order and the airman then appealed to the full Board.

On appeal, the Board rejected the airman's fatigue defense. It acknowledged "the tremendous effects fatigue may have on virtually all major aspects of a pilot's behavior in the cockpit" and observed that "pilot fatigue has consequently been a noteworthy aviation safety issue in the past year." And although the airman relied upon a FAA Notice of Proposed Rulemaking, Flightcrew Member Duty and Rest Requirements, that describes how fatigue can adversely affect several aspects of a pilot's conduct, the Board observed that the Notice, which is a proposed rule and not yet in effect, "does not state that the FAA's policy is to allow fatigue to serve as an affirmative defense, whereby it excuses regulatory violations." As a result, the Board concluded that the airman had provided "no authority for his proposition that fatigue should serve as an affirmative defense to excuse a pilot of violating operational regulations."

Interesting defense. Unfortunately, the airman didn't have any law to back it up. Certainly fatigue is currently a hot button for the FAA and the industry. But, for now, the onus of regulatory compliance will remain with the airman, regardless of whether he or she is suffering from fatigue. Thus, the airman will need to determine whether he or she is too fatigued to comply with the regulations BEFORE the airman operates an aircraft.
(prohibiting operation of an aircraft below 10,000 feet mean sea level at an indicated airspeed of more than 250 knots),

NTSB Allows Airmen To Waive Exclusion Of ASAP Report From Enforcement Action


In a recent decision by the NTSB, Administrator v. Austin and McCall, the Board determined that an administrative law judge ("ALJ") should have admitted into evidence two Aviation Safety Action Program ("ASAP") reports offered by two airmen in an enforcement hearing. ASAP programs are governed by FAA Advisory Circular 120-66B and typically provide that an airman flying for an air carrier has the option of submitting a voluntary report concerning an incident. Once submitted, the ASAP event review committee (ERC) may review the report, accept the reporting airman into the ASAP, and the FAA then agrees not to initiate a certificate action against the airman based upon the reported incident. AC 120-66B also specifically provides that an ASAP report may not be used for any purpose in an FAA legal enforcement action, unless the report involves criminal activity, substance abuse, controlled substances, or intentional falsification.

In this case, the airmen wanted to have ASAP reports they submitted admitted into evidence at the hearing. However, the ALJ granted the FAA's motion to exclude the ASAP reports based upon AC 12-66B. The ALJ determined that ASAP reports were not subject to review and that such a review would render ineffectual the memoranda of understanding under which ASAP programs operate. (The elements of an ASAP are set forth in a Memorandum of Understanding (MOU) between the FAA, certificate holder management, and an appropriate third party, such as an employee's labor organization or their representatives). Interestingly, the ALJ also acknowledged that this issue was one of first impression for the Board and that the Board needed to decide the issue before he would review the ASAP reports.

After a hearing, the ALJ affirmed the FAA's orders of suspension against the airmen. One of the airman then appealed the ALJ's decision to the full Board. Not surprisingly, the airman argued, among other things, that the ALJ improperly excluded the ASAP reports.

The Board initially noted that the protection provided by AC 120-66B prohibits the FAA from using ASAP evidence in an enforcement action. However, it then concluded that AC 120-66B "does not prohibit a pilot from waiving this protection to submit his or her own ASAP report into evidence." As a result, the Board remanded the case back to the ALJ for him to review the ASAP reports and to consider whether the airmen's filing of their respective ASAP reports protected one or both of them from FAA enforcement action.

It will be interesting to see how the ALJ rules on remand since the Board simply ruled that the ASAP reports were admissible and should be considered by the ALJ. Unfortunately, the Board didn't provide any guidance on whether the ASAP reports should have precluded the FAA from pursuing enforcement action against the airmen in the first place. I guess we will have to see what the ALJ decides.

NTSB to look into Embraer Phenom 100 landing issue

Flightglobal reports that the NTSB will look into a landing incident earlier this month in Texas, where a Phenom 100 skidded off the runway, damaging a landing-gear strut and wing light with no injuries.

Embraer said earlier this year it would re-evaluate pilot training on the brake-by-wire system of the jet following to previous landing incidents that resulted in blown tires. That company investigation, according to the Flightglobal report, considered mechanical issues, such as the brake lines and control units, as well as pilot training.

The magazine’s report notes that the NTSB involvement begins an official safety inquiry into the braking system of the Phenom 100. Embraer told Flightglobal that it supports the investigation as an advisor to Cenipa, the Brazilian equivalent.

ATC Tower talk: Changing the way to say stay put - FAA switches at the end of this month from 'position and hold' to 'line up and wait'

At the end of this month, some of the chatter you hear from the tower in your headset will change slightly. That is when new FAA “phraseology” will take effect, changing the command of “position and hold” to “line up and wait.”

At face value, the change presents itself as a non-dramatic one. The ICAO already uses the same language, and Canadian airspace regulators made the switch a couple of years ago.

When an aircraft taxis to a runway, and traffic is taking off or landing, a controller will tell the pilot “line up and wait” rather than “position and hold.” In other words, you want to stay safe? Stop short of the line and do not move. Let the other planes take off or land first.

The change came about following a recommendation by the NTSB in 2000 to switch to the international protocol and alleviate confusion. A subsequent FAA safety-risk analysis showed that the words “position” and “hold” show up in many tower commands a pilot can receive on the ground.

(Links to an animated video and info on an online training course after the jump.) [more] 

If a pilot hears only part of an instruction, it can cause confusion.  The NTSB believes the phrase “position and hold” (in many cases along with a busy tower) contributed to accidents and near-collisions on the ground, some resulting in fatalities.

While it obviously will take extra alertness to ensure controllers and aviators use and understand the new language, it likely will not cause a monumental shift in the way tower and aircraft communicate.

Nonetheless, the FAA has a video, complete with an animated Cessna taxing and lining up to a runway set a funky piece of background music, as well as a training course on its web site.

View the FAA “line up and wait” video here.

Check out the safety course by clicking here.

Then join the conversation in the comment section. What difference will the change mean to you? Was it worth the wait of 10 years between the NTSB advice and the FAA resolution? Ever been affected by a position-and-hold situation? Be sure to let us know.

NTSB issues preliminary report on Roush Airventure crash; update on injuries he received

The NTSB issued its preliminary report late last week into the Beechcraft Premier crash landing of NASCAR team owner Jack Roush that occurred last month during EAA Airventure 2010 in Oshkosh, Wisc.

It cites amateur video taken during the incident, which hospitalized Roush and a passenger with serious but not life-threatening injuries. The agency said in its report that the video shows Roush’s aircraft overshot the centerline of the runway after a left base turn for final “before entering a slight right bank simultaneously as the nose of the airplane pitched up.”

“The airplane then turned left toward the runway centerline and began a descent,” the preliminary report continues. “During this descent the airplane’s pitch appeared to increase until the airplane entered a right bank and struck the grass area west of the runway in a nose down, right wing low attitude.”

The report indicated that no mechanical failure of any sort is suspected as a factor.

Roush spoke to media this weekend, saying that the proposed path of his flight conflicted with that of another aircraft. However, the NTSB preliminary report did not make mention of this. [more]

I was put in conflict with the flight plan of another airplane close to the ground, and I was unable to address the conflict and keep the airplane flying,” Roush is quoted as saying to the AOL web publication Motorsports. “I ground-looped the airplane.”

On AvWeb.com, an MP3 posted of the Wittman Regional Airport (OSH) air traffic control tower recording indicates that one controller doubted whether Roush could complete the instructions he received. This NTSB preliminary report also does not mention this.

Roush’s facial injuries received in the crash are discussed at further length in the Motorsports article, including his losing sight in one eye and suffering a broken jaw.  Shortly after being transported to a local Wisconsin hospital, Roush was relocated to the world-renowned Mayo Clinic in Minnesota.

UPDATE: AvWeb now reports that the voice saying, "don't think so," on the ATC recording likely is Roush himself.

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