July 1, 1994
By John S. Yodice
The FAA's "kinder and gentler" approach to enforcement may be on the wane, as evidenced by the increasing number of questionable cases being brought against our members. My last two columns gave current examples of how heavy-handed the FAA can be. Last month, we talked about the pilot who was violated for failing to report to the FAA a motor vehicle traffic conviction when, in fact, he did report it and obviously had no intent to conceal it. The month before, we recounted the terrible treatment Bob Hoover has received from the FAA, which revoked his medical certificate on the thinnest justification, causing a furor in the pilot community. The five current members of the National Transportation Safety Board, which is supposed to be our administrative court of appeal, have not been doing too good a job of protecting pilots from the FAA's Draconian tactics.
So now is a good time to begin a review of some other protections available to pilots who may become involved in FAA enforcement cases. One of the simplest and easiest protections that you should know about is the Aviation Safety Reporting System (ASRS). This system particularly applies to the inadvertent incidents in which safety is not seriously compromised. Such cases are typical of virtually all of those involving our members. The flight rules are so complex and so pervasive that even the most conscientious pilot can get trapped. Hardly anyone intentionally violates a flight rule.
It is surprising that relative to their numbers, general aviation pilots do not take advantage of the program to the same extent as airline pilots and air traffic controllers.
The purpose of the ASRS has nothing to do with enforcement. The purpose of the ASRS is to provide the free flow of safety information among pilots and other users of the National Airspace System. The free flow of information that results from this partnership has led to many safety improvements. In exchange for this information, the FAA is willing, with certain exceptions, to waive disciplinary action if the incident involved a violation. To get the "immunity" benefit of avoiding a suspension of your pilot certificate or a fine, you must act promptly to file an Aviation Safety Report within 10 days of the incident.
The program has been structured to guarantee the confidentiality and the anonymity of the persons reporting. The National Aeronautics and Space Administration acts as a third party to receive and de-identify aviation safety reports before any information is passed on to the FAA and others.
What makes the program viable is its anonymity aspect. The NASA ARC 227 form on which a safety report is made is pre-addressed to NASA. When NASA receives it, the portion of the form that identifies the person submitting the report is torn off, time stamped, and returned to the reporter. This is the proof that a report has been filed. NASA also deletes all information in the report that could be used to identify the reporter. To further tighten up this security, the FAA adopted FAR 91.25 specifically prohibiting the use of these reports in any FAA enforcement action.
The FAA puts some limitations on the program.
Immunity will be granted only if the violation was inadvertent and not deliberate. For example, several low passes over a congested area were deemed to be "reckless" and not "inadvertent." On the other hand, flying into an ARSA (now Class C airspace) without radio contact, based on a misleading aeronautical chart, is "inadvertent."
Immunity will be granted only if the violation did not involve a criminal offense or aircraft accident. It is important to be aware that information concerning criminal offenses will be sent to the Department of Justice and to the FAA. Information concerning accidents will be sent to the National Transportation Safety Board and to the FAA. In both cases, there will be no confidentiality or anonymity. The information will be sent without being identified.
Immunity will not be granted if the FAA's independent investigation determines the pilot was not qualified or competent to hold the certificate he claimed to be operating under.
Immunity also will not be granted if the pilot has violated any part of the Federal Aviation Act or the FARs or been involved in an FAA enforcement action in the previous five years. This limitation is frequently misunderstood to mean that only one report may be filed in a five-year period. That's wrong. There is no limit on the number of times reports may be filed. But once a finding of a violation is made, whether or not a NASA report was filed, immunity can't be claimed during the next five years.
The immunity aspect of the program is only a waiver of disciplinary action — no suspension or fine. The FAA still will fully investigate a suspected violation. The inspector will not query NASA, nor will the inspector ask the alleged violator if a report was filed under ASRS, at any time during the investigation stage. It is only after the case turns into a formal enforcement action that the alleged violator gets any indication that he may request waiver of the proposed sanction. The burden of the immunity aspect is on the pilot. The pilot must prove that he delivered or put in the mail a written report to NASA within 10 days of the incident. What the FAA is looking for is the date-stamped portion of the NASA form that was returned to the pilot. We recommend that it be sent certified mail, return receipt requested, so there can be no question that it was sent and when it was posted.
If the FAA makes an official finding that a violation has been committed, an order is issued that states the factual allegations and makes findings of violations but does not impose a penalty because of the timely filing of a report with NASA. This order is appealable to the NTSB. An ultimate finding of a violation will be made a part of the pilot's file in Oklahoma City and will be a bar against further immunity for a period of five years.
The NASA ARC Form 227 (revised October 1984) is available free of charge from FAA offices, including the local flight standards district offices and flight service stations, from AOPA, and on pp. 2-75 and 2-76 of AOPA's Aviation USA. It is also available directly from NASA at the ASRS office, Post Office Box 189, Moffett Field NAS, Mountain View, California 94035, where the report is required to be filed.
Photocopies of the form are acceptable, or if an official form isn't available, a written narrative report may be submitted. It should contain the name, address, telephone number, and role of the reporter during the incident; date, time, location, and nature of the incident being reported; a description of the event/situation; and thoughts on what can be done to prevent a recurrence or to correct the situation. NASA will transfer the information to an ARC Form 227 and return a completed identification strip to the reporter.
Remember, in order for a pilot to qualify for immunity, the form or narrative report must be mailed or delivered to NASA within 10 days after the incident.
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