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Subject: Re: [LML] Anatomy of an ATC violation case (T Storm Avoidance)
From: John Hafen <j.hafen@comcast.net>
Thread-Topic: [LML] Anatomy of an ATC violation case (T Storm Avoidance)
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The real question is why would anyone in their right minds ever want to fly
to Alamogordo, New Mexico, unless they were assigned to Holloman AFB.

I guess the place has its high points.  Aliens visited there in April of
1963.  They did set a land speed record for railed craft in 2003 of 6,453
MPH.  It does happen to be the perfect place to learn to drop bombs, becaus=
e
however badly you screw up, you are never going to hurt anything (I=B9ll tell
you the story at the bar sometime).

John Hafen
LIVP N413AJ


On 8/22/08 6:51 AM, "Jeffrey Liegner, MD" <liegner@embarqmail.com> wrote:

> Pilot departed IFR, given SID clearence, saw thunderstorms over VOR ahead=
,
> requested deviation (even discussed it), waited for ATC, and then deviate=
d
> away from the storms.  He was "violated" for deviating from an IFR cleare=
nce.
>=20
> He could have done it differently (like declaring an emergency before cha=
nging
> course), but he did it this way.  Not an unreasonable pilot decision, but=
 with
> consequences.
>=20
> Jeff L
>=20
>=20
> http://www.aopa.org/members/files/pilot/2008/pc0808.html
>=20
> Pilot Counsel: Anatomy of an ATC violation case
> John S. Yodice is the owner of a Cessna 310.
> In my experience, pilots prefer gaining insights into the operational and
> flight rules that govern their flying from actual cases rather than from =
any
> dry academic discussion. That=B9s true, too, about the FAA enforcement proc=
ess.
> Here is a case that involves the rule on =B3clearances=B2 as it is applied to=
 an
> IFR departure procedure, about what constitutes an emergency, when does t=
he
> =B3get-out-of-jail-free=B2 policy apply, what is the likely punishment, and m=
ore.
> A pilot lost his ATP certificate for 60 days for violating an IFR departu=
re
> clearance. He was pilot in command of a Cessna Citation CE-560 on an IFR
> flight departing from Buchanan Field in Concord, California, destined for
> Alamogordo, New Mexico. The flight had been issued a standard instrument
> departure (SID) clearance: =B3the Buchanan Seven Departure...PITTS transiti=
on.=B2
> The pilot acknowledged and read back the clearance. The SID requires a
> climbing turn direct to the Concord CCR VOR/DME, and from there to the PI=
TTS
> intersection via the 071-degree radial from the CCR VOR/DME. According to=
 the
> FAA, the pilot deviated from this clearance and =B3broke off from the instr=
ument
> departure procedure route to proceed directly to PITTS intersection=B2 and =
as =B3a
> result [the flight] entered into airspace, under IFR, at an altitude lowe=
r
> than the minimum vectoring altitude.=B2
> There were several air traffic control facilities involved. The clearance=
 was
> relayed to the flight by Concord/Buchanan Field tower that received it fr=
om
> Travis Air Force Base RAPCON (Radar Approach Control). Within one minute =
after
> takeoff, Concord instructed the flight to contact Travis RAPCON. Within t=
wo
> minutes, the flight contacted Travis and was requested to transponder =B3id=
ent=B2
> for radar identification. The pilot then asked Travis for a deviation to
> bypass the weather over the VOR. Travis acknowledged, radar identified th=
e
> flight, and said that the deviation request was pending (the request had =
to be
> coordinated with the next control sector under Northern California Termin=
al
> Approach Control before Travis could authorize the deviation request). Tr=
avis
> then alerted the flight to high terrain. The pilot replied: =B3Sir, we see =
the
> terrain, but we=B9re not going to fly in that thunderstorm over the VOR.=B2 T=
ravis
> saw the aircraft enter NorCal=B9s airspace and =B3pointed out=B2 the aircraft t=
o
> NorCal. Travis gave the flight a low-altitude alert because it hit the MV=
A
> (the 5,100 feet MVA is 1,000 above a nearby 4,100 foot mountain).
> According to the FAA, the flight would never have entered the MVA if it h=
ad
> stayed on the SID as cleared. The Travis RAPCON filed a Preliminary Pilot
> Deviation Report, stating that the flight=B9s penetration into NorCal=B9s air=
space
> was without coordination, and that the flight entered a minimum vectoring
> altitude area at an altitude below the limit. As a result, the FAA suspen=
ded
> the pilot=B9s license for 90 days for violating the =B3clearance=B2 rule, FAR
> 91.123(a), and for being =B3careless or reckless=B2 in violation of FAR 91.13=
(a)
> (automatically charged in every operational violation case). The pilot
> appealed the suspension to the NTSB, as was his right. In such an appeal =
a
> pilot is entitled to a trial-type hearing at which the FAA has the burden=
 of
> proving the violations by a preponderance of =B3reliable, probative, and
> substantial evidence.=B2
> At the NTSB hearing the FAA produced as witnesses the civilian and milita=
ry
> controllers involved as well as the Flight Standards Inspector who
> investigated the case; the FAA introduced into evidence tape recordings o=
f the
> air traffic control conversations with the pilot, the SID chart, the depa=
rture
> clearance strip, the pilot deviation report, the weather report for Conco=
rd,
> and the sanction guidance table. The pilot testified in his own behalf an=
d
> presented a receipt evidencing the timely filing of a report to the Natio=
nal
> Aeronautics and Space Administration under the Aviation Safety Reporting
> System (ASRS). Based on the evidence, the NTSB law judge sustained the FA=
A
> charges but reduced the period of suspension from 90 days to 60 days.
> FAR 91.123(a) provides that: =B3When an air traffic control clearance has b=
een
> obtained, no pilot in command may deviate from that clearance unless an
> amended clearance is obtained, an emergency exits, or the deviation is in
> response to a traffic alert and collision avoidance system resolution
> advisory. However, except in Class A airspace, a pilot may cancel an IFR
> flight plan if the operation is being conducted in VFR weather conditions=
.
> When a pilot is uncertain of an ATC clearance, that pilot should immediat=
ely
> request clarification from ATC.=B2
> The law judge concluded that the pilot deviated from his departure cleara=
nce
> without obtaining an amended clearance and that no weather emergency exis=
ted.
> The pilot also lost in his appeal to the full five-member NTSB. The board=
 did
> not believe the pilot=B9s defense that a weather emergency required him to
> deviate from the departure clearance.
> Under the ASRS, certificate suspension may be waived, despite a finding o=
f a
> regulatory violation, if certain requirements are satisfied: (1) that the
> violation was inadvertent and not deliberate; (2) that it did not involve=
 a
> crime; (3) that the person has not been found in an enforcement action to=
 have
> committed a regulatory violation in the past five years; and (4) that the
> person mails a report of the incident to NASA within 10 days. The board
> refused to grant the waiver of suspension under the ASRS because it deter=
mined
> that the deviation was not =B3inadvertent and not deliberate.=B2 According to=
 the
> board, the pilot =B3flew the path that he wanted to.=B2
> No =B3get-out-of-jail-free=B2 card.
>=20


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<HTML>
<HEAD>
<TITLE>Re: [LML] Anatomy of an ATC violation case (T Storm Avoidance)</TITL=
E>
</HEAD>
<BODY>
<FONT FACE=3D"Calibri, Verdana, Helvetica, Arial"><SPAN STYLE=3D'font-size:11pt=
'>The real question is why would anyone in their right minds ever want to fl=
y to Alamogordo, New Mexico, unless they were assigned to Holloman AFB.<BR>
<BR>
I guess the place has its high points. &nbsp;Aliens visited there in April =
of 1963. &nbsp;They did set a land speed record for railed craft in 2003 of =
6,453 MPH. &nbsp;It does happen to be the perfect place to learn to drop bom=
bs, because however badly you screw up, you are never going to hurt anything=
 (I&#8217;ll tell you the story at the bar sometime). &nbsp;<BR>
<BR>
John Hafen<BR>
LIVP N413AJ<BR>
<BR>
<BR>
On 8/22/08 6:51 AM, &quot;Jeffrey Liegner, MD&quot; &lt;<a href=3D"liegner@em=
barqmail.com">liegner@embarqmail.com</a>&gt; wrote:<BR>
<BR>
</SPAN></FONT><BLOCKQUOTE><FONT FACE=3D"Calibri, Verdana, Helvetica, Arial"><=
SPAN STYLE=3D'font-size:11pt'>Pilot departed IFR, given SID clearence, saw thu=
nderstorms over VOR ahead, requested deviation (even discussed it), waited f=
or ATC, and then deviated away from the storms. &nbsp;He was &quot;violated&=
quot; for deviating from an IFR clearence.<BR>
<BR>
He could have done it differently (like declaring an emergency before chang=
ing course), but he did it this way. &nbsp;Not an unreasonable pilot decisio=
n, but with consequences.<BR>
<BR>
Jeff L<BR>
<BR>
<BR>
<a href=3D"http://www.aopa.org/members/files/pilot/2008/pc0808.html">http://w=
ww.aopa.org/members/files/pilot/2008/pc0808.html</a><BR>
<BR>
</SPAN></FONT><FONT SIZE=3D"5"><FONT FACE=3D"Times New Roman"><SPAN STYLE=3D'font=
-size:18pt'>Pilot Counsel: Anatomy of an ATC violation case<BR>
</SPAN></FONT></FONT><FONT COLOR=3D"#1E1E1E"><FONT SIZE=3D"1"><FONT FACE=3D"Arial=
"><SPAN STYLE=3D'font-size:9pt'><I>John S. Yodice is the owner of a Cessna 310=
.<BR>
</I></SPAN></FONT></FONT><FONT FACE=3D"Arial"><SPAN STYLE=3D'font-size:11pt'>In=
 my experience, pilots prefer gaining insights into the operational and flig=
ht rules that govern their flying from actual cases rather than from any dry=
 academic discussion. That&#8217;s true, too, about the FAA enforcement proc=
ess. Here is a case that involves the rule on &#8220;clearances&#8221; as it=
 is applied to an IFR departure procedure, about what constitutes an emergen=
cy, when does the &#8220;get-out-of-jail-free&#8221; policy apply, what is t=
he likely punishment, and more.<BR>
A pilot lost his ATP certificate for 60 days for violating an IFR departure=
 clearance. He was pilot in command of a Cessna Citation CE-560 on an IFR fl=
ight departing from Buchanan Field in Concord, California, destined for Alam=
ogordo, New Mexico. The flight had been issued a standard instrument departu=
re (SID) clearance: &#8220;the Buchanan Seven Departure...PITTS transition.&=
#8221; The pilot acknowledged and read back the clearance. The SID requires =
a climbing turn direct to the Concord CCR VOR/DME, and from there to the PIT=
TS intersection via the 071-degree radial from the CCR VOR/DME. According to=
 the FAA, the pilot deviated from this clearance and &#8220;broke off from t=
he instrument departure procedure route to proceed directly to PITTS interse=
ction&#8221; and as &#8220;a result [the flight] entered into airspace, unde=
r IFR, at an altitude lower than the minimum vectoring altitude.&#8221;<BR>
There were several air traffic control facilities involved. The clearance w=
as relayed to the flight by Concord/Buchanan Field tower that received it fr=
om Travis Air Force Base RAPCON (Radar Approach Control). Within one minute =
after takeoff, Concord instructed the flight to contact Travis RAPCON. Withi=
n two minutes, the flight contacted Travis and was requested to transponder =
&#8220;ident&#8221; for radar identification. The pilot then asked Travis fo=
r a deviation to bypass the weather over the VOR. Travis acknowledged, radar=
 identified the flight, and said that the deviation request was pending (the=
 request had to be coordinated with the next control sector under Northern C=
alifornia Terminal Approach Control before Travis could authorize the deviat=
ion request). Travis then alerted the flight to high terrain. The pilot repl=
ied: &#8220;Sir, we see the terrain, but we&#8217;re not going to fly in tha=
t thunderstorm over the VOR.&#8221; Travis saw the aircraft enter NorCal&#82=
17;s airspace and &#8220;pointed out&#8221; the aircraft to NorCal. Travis g=
ave the flight a low-altitude alert because it hit the MVA (the 5,100 feet M=
VA is 1,000 above a nearby 4,100 foot mountain).<BR>
According to the FAA, the flight would never have entered the MVA if it had=
 stayed on the SID as cleared. The Travis RAPCON filed a Preliminary Pilot D=
eviation Report, stating that the flight&#8217;s penetration into NorCal&#82=
17;s airspace was without coordination, and that the flight entered a minimu=
m vectoring altitude area at an altitude below the limit. As a result, the F=
AA suspended the pilot&#8217;s license for 90 days for violating the &#8220;=
clearance&#8221; rule, FAR 91.123(a), and for being &#8220;careless or reckl=
ess&#8221; in violation of FAR 91.13(a) (automatically charged in every oper=
ational violation case). The pilot appealed the suspension to the NTSB, as w=
as his right. In such an appeal a pilot is entitled to a trial-type hearing =
at which the FAA has the burden of proving the violations by a preponderance=
 of &#8220;reliable, probative, and substantial evidence.&#8221;<BR>
At the NTSB hearing the FAA produced as witnesses the civilian and military=
 controllers involved as well as the Flight Standards Inspector who investig=
ated the case; the FAA introduced into evidence tape recordings of the air t=
raffic control conversations with the pilot, the SID chart, the departure cl=
earance strip, the pilot deviation report, the weather report for Concord, a=
nd the sanction guidance table. The pilot testified in his own behalf and pr=
esented a receipt evidencing the timely filing of a report to the National A=
eronautics and Space Administration under the Aviation Safety Reporting Syst=
em (ASRS). Based on the evidence, the NTSB law judge sustained the FAA charg=
es but reduced the period of suspension from 90 days to 60 days.<BR>
</SPAN><FONT SIZE=3D"1"><SPAN STYLE=3D'font-size:9pt'>FAR 91.123(a) provides th=
at: &#8220;When an air traffic control clearance has been obtained, no pilot=
 in command may deviate from that clearance unless an amended clearance is o=
btained, an emergency exits, or the deviation is in response to a traffic al=
ert and collision avoidance system resolution advisory. However, except in C=
lass A airspace, a pilot may cancel an IFR flight plan if the operation is b=
eing conducted in VFR weather conditions. When a pilot is uncertain of an AT=
C clearance, that pilot should immediately request clarification from ATC.&#=
8221;<BR>
The law judge concluded that the pilot deviated from his departure clearanc=
e without obtaining an amended clearance and that no weather emergency exist=
ed. The pilot also lost in his appeal to the full five-member NTSB. The boar=
d did not believe the pilot&#8217;s defense that a weather emergency require=
d him to deviate from the departure clearance.<BR>
Under the ASRS, certificate suspension may be waived, despite a finding of =
a regulatory violation, if certain requirements are satisfied: (1) that the =
violation was inadvertent and not deliberate; (2) that it did not involve a =
crime; (3) that the person has not been found in an enforcement action to ha=
ve committed a regulatory violation in the past five years; and (4) that the=
 person mails a report of the incident to NASA within 10 days. The board ref=
used to grant the waiver of suspension under the ASRS because it determined =
that the deviation was not &#8220;inadvertent and not deliberate.&#8221; Acc=
ording to the board, the pilot &#8220;flew the path that he wanted to.&#8221=
;<BR>
No &#8220;get-out-of-jail-free&#8221; card.<BR>
</SPAN></FONT></FONT></FONT><FONT FACE=3D"Calibri, Verdana, Helvetica, Arial"=
><SPAN STYLE=3D'font-size:11pt'><BR>
</SPAN></FONT></BLOCKQUOTE>
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