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Airman Receives 30-Day Suspension for ADIZ Incursion

by Greg Reigel 1. June 2008 00:00
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An airman recently received a 30-day suspension of his private pilot certificate in the aftermath of yet another unauthorized incursion into the Washington D.C. Air Defense Identification Zone ("ADIZ"). Although factual circumstances are not new or unusual (after all, ADIZ incursions occur more frequently than we would like), the fact that the suspended airman was not the pilot-in-command ("PIC") on the flight merits the attention of all certificated airman.

In Administrator v. Blum, the FAA alleged that the airman violated FARs 91.139(c) (compliance with NOTAM), 99.7 (pilots must comply with security instruction issued for ADIZ), 91.131(a)(1) (ATC clearance required prior to entry into Class B airspace), and 91.13(a) (careless and reckless) during a flight in which he was receiving dual instruction from a certified flight instructor.

After a hearing, the administrative law judge ("ALJ") affirmed the FAA's order imposing a 30-day suspension of the airman's private pilot certificate. The ALJ also rejected the airman's defense that he was eligible for a waiver of sanction based on his filing of an Aviation Safety Reporting Program ("ASRP") report, since the ALJ determined that the violations were not inadvertent. On appeal, the airman argued that the FAA did not meet its burden of proving that he was the PIC on the flight and that the ALJ erred when he refused to accept the ASRP report. However, the Board rejected both arguments.

The Board observed that the FAA only needed to show that the airman operated or flew the aircraft in the Washington D.C. Class B and ADIZ airspace. Since the airman admitted that he did, in fact, operate and fly the aircraft, the Board held that the FAA had proven the violation. (Although the FAA also tried to prove that the airman was the PIC, the Board's precedent that an instructor is the PIC on an instructional flight, even though the instructor is not necessarily the pilot who operates the controls or directs the course of a flight, precluded a finding that the airman was the PIC).

With respect to the airman's ASRP affirmative defense, the Board concluded that the airman had not met his burden of proving both the factual basis for the defense and the legal justification. In order to qualify for the ASRP waiver of sanction, a violation must be both "not deliberate" and "inadvertent." The Board observed that "whether he intended to violate the FAR, respondent was not unaware that he was flying into restricted airspace. That he chose not to ensure that he was complying with the restrictions and limitations of that airspace does not transform his actions from deliberate or advertent to not deliberate or inadvertent."

Finally, even though the airman did not raise an affirmative defense of reasonable reliance, and the Board does not ordinarily entertain arguments not presented to it, the Board determined that the airman did not meet the conditions of the reasonable reliance defense. (The airman's violation may be excused if the airman proves that he or she had no independent obligation or ability to ascertain whether the flight was cleared to enter the ADIZ, and no reason to question the performance of the CFI). It concluded that "as a qualified certificated pilot and, here, the flying pilot, respondent had an independent duty to comply with the requirements of the airspace in which he operated."

This case should be a reminder to certificated airmen that they must be vigilant at all times. If you are manipulating the controls of an aircraft or operating the aircraft, you can be held responsible for the conduct of the flight even if you are not technically the PIC. That is, unless you can present a stronger reasonable reliance defense than was discussed here.

If you are strictly a passenger on a flight with another airman (e.g. not manipulating the controls or operating the aircraft), then you should not be at risk if an FAR violation occurs during that flight. However, to the extent that you may be participating in the flight (e.g. handling the radio, manipulating the controls or operating the aircraft) you would be wise to maintain the situational awareness you otherwise would if you were the sole pilot on board and to act accordingly.

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Greg Reigel


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