May 1, 1999
By John S. Yodice
The Aviation Safety Reporting Program, which has been around for almost 25 years, is a good one for pilots. It provides protection from the loss of a pilot's certificate. It also helps to improve aviation safety. Recently, the program ran into a problem that could have jeopardized it. The problem has now been resolved, so this is a good time for an all-important reminder to pilots about the program, as well as a news report about the threat against it.
It is the immunity aspect of the program — protection from FAA enforcement — that is of most interest to pilots. But the main purpose of the program, better known as the NASA Aviation Safety Reporting System (ASRS), has little to do with FAA enforcement. The main purpose is to im-prove safety by providing a free flow of information from those who are likely to run into unsafe aviation situations. History has proven that pilots and others are reluctant to tell about incidents that are embarrassing to them, especially if they could arguably involve violations of the FARs. To overcome this reluctance, the FAA has adopted this program by which it can re-ceive the information anonymously, and, in return, the FAA will waive disciplinary action if the incident being reported in-volves a violation of the Federal Aviation Regulations. The free flow of information through ASRS has led to many safety improvements.
Here is how the program works. To guarantee the confidentiality and anony-mity of the persons who file reports, NASA acts as a third party to receive and remove the submitter's name from aviation safety reports before any information is passed on. NASA has developed a form, ARC Form 277, which is preaddressed to NASA and franked (no postage needed).
The form is in two parts: an identification strip and a section that requests detailed information on the event or situation. When NASA receives the form, the identification strip is time-stamped, removed, and returned to the reporter. This is the reporter's proof that a report has been filed in a timely manner. NASA also deletes from the rest of the report all information 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.
To get the "immunity" benefit of avoiding a fine or the suspension of a pilot certificate, the pilot must act promptly to file an aviation safety report within 10 days of an incident. The FAA strictly enforces this timing requirement.
The FAA puts some limitations on the program. These limitations have not been troublesome to the overall benefit of the program to pilots, although they are obviously troublesome in the specific situations in which they apply. The program applies only to violations that are inadvertent and not deliberate. The program does not apply to criminal conduct or to accidents, and it does not apply to pilots who lack qualifications or competency. It does not apply to repeat offenders (those with a finding of violation in the past five years). In our experience, the ASRS would apply in more than 90 percent of the violation cases brought against pilots. There is hardly any reason not to file a report of any incident that could lead to enforcement, except in cases of criminal activity or a reportable accident.
Now to the current problem and how it was resolved. As we have seen, the underpinning of the program has been the confidentiality of the reports filed with NASA. Well, along came an overzealous FAA prosecutor and a less-than-vigilant NTSB, who together managed to endanger this safety program. The National Transportation Safety Board! Go figure!
An FAA enforcement case resulted when a pilot made a precautionary landing on a road after the engine of his Cessna 152 be-gan surging. He obviously knew (or came to learn) about the program, because he filed a Form 277 safety report of the incident with NASA. In due course, the pilot re-ceived the identification strip back, time-stamped within 10 days of the incident.
The FAA investigated the incident. An FAA inspector, rummaging through the airplane, said that he found little fuel on board. He concluded that the airplane had run out of fuel. As a result, the FAA ordered a 30-day suspension of the pilot's private certificate, charging him with inadequate preflight planning (in violation of FAR 91.103) and with being careless (in violation of FAR 91.13). The FAA waived the suspension because the pilot presented the identification strip evidencing the timely filing of the NASA report.
The pilot denied violating the regulations. He appealed the violation to the NTSB, even though the suspension was waived. He wanted to keep his record clear of violations. According to the pilot, he properly calculated the fuel requirements for the flight, and the problem was not lack of fuel at the beginning of the flight. It could have been fuel blockage or seepage. He showed that a month and a half after the incident, the right fuel tank was replaced because of pinhole corrosion at its top. The pilot disputed that there was little fuel found in the airplane during the FAA investigation.
The case was assigned to an NTSB administrative law judge for a hearing. The law judge decided the case against the pilot. On further appeal to the full Board, the NTSB affirmed the law judge. This is where the ASRS part of the problem comes in. At the hearing, the law judge admitted into evidence the identification strip which the pilot used to get the waiver of the suspension. On the strip, after the block titled "Type of Event/Situation," the pilot wrote "Emergency landing due to fuel exhaustion." The judge considered this an admission by the pilot of the violations charged by the FAA. According to the pilot, this was not an admission; instead, he was simply indicating what the FAA was accusing him of.
The identification strip should not have been used as evidence in this case. FAR 91.25 specifically says that the FAA will not use NASA reports in any enforcement action (except concerning criminal offenses or accidents). Indeed, the FAA policy has been to prohibit not only the use of the report itself, but any information derived from the report. The FAA attorney was wrong. The NTSB law judge was wrong. The full Board had an opportunity to solve the problem on appeal but wimped out. The Board said that it didn't have to address this issue because there was enough other evidence to sustain the violations. The Board's reluctance to condemn this use of the NASA report could have seriously jeopardized the program.
NASA came to the rescue. When the NASA folks who run the program became aware of this situation, they immediately recognized the jeopardy facing this valuable safety program. They pressed the FAA to remedy it. Ultimately, NASA was successful in getting the FAA chief counsel to issue a memorandum reaffirming the FAA policy that the entire ASRS report form — both the identification strip and the body of the report — is not to be used as evidence to substantiate an alleged violation in an enforcement action.
We have recommended for years that pilots exercise caution when they complete the "Type of Event/Situation" block on the NASA form. While the FAA has indicated that it will not use the form as evidence in an enforcement case, it is prudent to continue to exercise caution. If you are a member of AOPA's Legal Services Plan, call before you complete the NASA form.
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