An Airspace Incursion

Pilots are aware of the rules and regulations defined in the Federal Aviation Regulations and the Aeronautical Information Manual. If you have devoted much time reading them you understand that for every reg demanding what to do, there may be another citing the opposite. This is a story of a pilot who followed the FARs, but was investigated for failing to follow another set of regs. The question becomes: which has priority?

A few years ago, I received a certified letter from an East Coast FAA Flight Standards District Office, which stated: “Personnel of this office are investigating an incident that involved a C182 aircraft, N4696T… observed operating in the Washington, DC Air Defense Identification Zone [ADIZ] on a 1200 transponder code. Operations of this type may be contrary to Federal Aviation Regulations.”

After reading this letter I thought, well, yeah, that’s exactly what happened. Note that offices, procedures and regulations may have changed since this incident. But my response is still applicable today.

The evening before this flight, by telephone, I obtained an FAA weather briefing and filed an IFR flight plan from St Mary’s County Regional airport (2W6) in Maryland, 40 miles southeast of downtown Washington, DC, and six miles west of Patuxent Naval Air Station (KNHK). The route was direct (GPS) to FLUKY intersection, direct (GPS) to Zanesville, Ohio (ZZV). My flight path would pass within the southwestern edge of the Washington, DC, ADIZ. This should present no problem as my flight through the ADIZ would be on an IFR flight plan. The next morning, I called for another briefing and was told, again, “Yes sir, your plan is in the system.”

St. Mary’s airport is under control of Patuxent NAS (PAX) for instrument approaches and take-offs. For 20 years I have been flying IFR in and out of St. Mary’s, seldom having problems. But that morning I experienced unbelievable difficulties. It was VFR under a solid overcast, 6000-8000 AGL. On the ground I called PAX Approach, who answered, requesting my IFR clearance. PAX never responded.

Three or four times I called, PAX replied, I requested my clearance—again nothing. I departed VFR, contacted PAX Approach again, being told they had nothing on file and couldn’t help.

Flying my filed (but lost) flight plan and climbing to 3000 feet, I contacted the Lockheed Martin FSS at Leesburg, explained my lost flight plan asking for my clearance. I was keeping my eye on the GPS outline of the ADIZ perimeter, staying south of the ADIZ. They questioned why the Navy failed to give me my clearance as my plan was in the system. Leesburg issued my clearance less the squawk code. The FSS said to contact PAX for my code.

Contacting PAX again as I am about to enter the ADIZ, I explained that I had my clearance and was told to get my transponder code from them. The Navy controller said he had no information on me and couldn’t help, but in the background, I hear, “I found it, I’ve got it.” I immediately received my transponder code. The rest of this trip was uneventful.

I spoke with three experienced pilots, whose opinions I regarded highly. All suggested I file a NASA report. This Aviation Safety Reporting System protects pilots from any fine or certificate suspension, even if an FAA violation was determined, provided no criminal offense or accident was committed. 

They further suggested my letter to the FAA not cite any incompetence but be nice and leave room for the FAA to find fault with the system as the cause of my problem. Don’t blame the FAA but point out how the system failed. I had the AOPA Legal Services Plan. I spoke to an aviation paralegal. She knew the FAA investigator and said he played by the book, but was fair and easy to talk to. She listened to my story and explained the investigation process. Again, the question, did I submit my NASA report?

In her experience no one violated the FAA regs on the ADIZ without being punished, usually by a certificate suspension, which in my case she believed would be a loss of flying privileges for five to 30 days. She was convinced I would be found guilty of the ADIZ incursion. She suggested I write my version of what happened and request, under the Freedom of Information Act (FOIA), recordings of all the radio and telephone conversations prior to, during, and after my flight through the ADIZ. I needed evidence to support my version of the event.

She explained I should simply describe what happened, being factual rather than emotional. She added I should end my letter with information on how experienced and safe I was as a pilot and my background as a safety educator. She reviewed my letter and I mailed it to the investigator.

Before mailing the letter to the FAA investigator, I called. He was friendly and was not adversarial at all. He was pleasant and sounded like he understood the position I was in. I asked how he would learn what happened. He explained he would obtain the same tapes I requested, and speak to the Navy, FSS and FAA people I had contact with. He would study the radar tapes and consider whatever I sent him. He said he would do an impartial investigation and then recommend his findings.

It would take about six months to complete. Asking about the tapes, he said whatever he had would also be available to me. When finished, his recommendations would go to his FAA Region headquarters, then the FAA legal office for final approval. He said I could call any time to see how the investigation was proceeding or if I had any questions.

I received a response from the FAA acknowledging my FOIA request—eventually receiving copies of everything I requested (and had to pay). I was told the Navy and Lockheed Martin are not part of the FAA and I should contact them directly.

I contacted the officer who was responsible for the safeguarding of the Navy Air Traffic Control tapes. He said all the tapes had been deleted.

The Lockheed Martin legal department advised me that they are not subject to the FOIA and do not release any information regarding their business operations.

The foundation of my defense was based on two Federal Regulations. First is in the AIM, Chapter 4. Air Traffic Control, Section 4. ATC Clearances/Separations, paragraph 4-4-3. Clearance Items. This regulation states: ATC clearances normally contain the following: Clearance Limit; Departure Procedures; Route of Flight; Altitude Data; and Holding Instructions if needed. Note that a transponder code is not on this list. Second is FAR Part 91.123 Compliance with ATC clearances and instructions. Paragraph (a) states “When an ATC clearance has been obtained, no pilot in command may deviate from that clearance unless an amended clearance is obtained, an emergency exists, or the deviation is to a traffic alert….” I had the clearance and unless Patuxent controllers amended that, I would fly the clearance received, which I did.

The AOPA legal team pointed out that two FARs say otherwise. FAR 91.139 states when an emergency NOTAM has been issued the operator of an aircraft must abide by the NOTAM emergency procedures. FAR 99.7 states that each person operating an aircraft in an ADIZ must… comply with the special security instructions issued by the Administrator. Essentially these regulations mean that a discrete transponder code is required to operate in the ADIZ and without such a code you can’t fly in the ADIZ.

In six months, the investigator called. He had completed his investigation and concluded that I did everything possible to avoid entering the ADIZ without the code. He also said it was possible that I did not enter the ADIZ before I received my code but due to my low altitude the radar returns were not accurate. The Navy refused to help him, and Lockheed Martin would not share anything. The investigator said the investigation would terminate with no action being taken, declaring the incursion a “non-event,” meaning nothing happened.

What can other pilots learn from this? A pilot being investigated needs legal aviation help. The AOPA Legal Service Plan may be the least expensive way to get expert aviation legal counsel. It provided sage advice, walking me through the hazards of an FAA investigation. I had a single point of contact that immediately answered my questions and remained available throughout the investigation.

First file the NASA report form (see Advisory Circular 00-46E and FAR 91.25). Then respond to the investigator—after seeking legal counsel. Review every facet of the flight and write what you believed happened. Ensure what you state is correct and honest. You can’t take back mistakes or defend errors later. Understand the rules and regulations as they apply to your alleged violation. In my case I was operating under one set of regulations. Unfortunately, there were also opposing ADIZ regulations which simply meant that whatever I did, could be wrong. Under the FOIA request any appropriate FAA tapes immediately due to the time constraints. Do not be belligerent or antagonistic when interacting with the FAA investigator. You want him or her on your side. Don’t project blame or fault.

Be honest with the investigator and be honest with yourself. One must have faith in the FAA investigation process.

Dr. Bob Worthington is a retired Army officer (Combat Infantryman), psychologist and college professor. He’s authored over 2500 articles and papers and is an IFR pilot with over 7000 hours.

This article originally appeared in the October 2019 issue of IFR Refresher magazine.

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