July 1, 2005
By John S. Yodice
John S. Yodice and his associates provide legal counsel to AOPA's more than 400,000 members.
Experience is telling us that it is time to remind pilots of the NASA Aviation Safety Reporting System (ASRS). Many, far too many, pilots are calling, seeking legal guidance about an operational incident that could lead to FAA enforcement, such as temporary flight restriction (TFR) and Air Defense Identification Zone (ADIZ) incidents, and when we ask, too many say they did not file an ASRS report. They explain they had forgotten about the program, or some say they never were aware of it. By then our reminder is usually too late to do the pilot any good.
We should start by explaining that the main reason for the ASRS really has little to do with FAA enforcement. The main reason is to provide a free flow of safety information to the FAA and others. The program accomplishes this by inviting information from the persons most likely to encounter unsafe conditions in our National Airspace System, pilots particularly. The FAA understands that pilots and others might be reluctant to relate incidents that are embarrassing to them and that could arguably involve violations of the federal aviation regulations. To overcome this reluctance, the FAA has adopted, as part of the program, a method by which the FAA can receive such information anonymously and confidentially. In return, the FAA will waive disciplinary action if the incident being reported involves an inadvertent violation of the FARs. The free flow of information that has resulted from this program has led to many safety improvements.
For our purposes in this column, though, we want to emphasize the immunity aspect of the program. It can provide protection to a pilot from the danger of losing his or her pilot certificate in the event of an inadvertent operational violation. Most pilot operational violations are inadvertent.
Here is how the program works. In order to guarantee the confidentiality of the reports and the anonymity of the reporters, NASA acts as a third party to receive and de-identify the reports before any information is passed on to the FAA. NASA has developed a set of forms. The ARC Form 277B, the one for general use, is the one pilots should use. The forms, which are preaddressed to NASA and franked (postage paid), are widely available. It is frequently advisable to send the form certified, return receipt requested, against the possibility of lost mail. The form is in two parts: a tear-off identification strip and a second part that calls for detailed information on the event or situation. When NASA receives it, the identification strip is date-stamped, removed, and returned to the reporter. This is the pilot's proof that a report has been timely filed. NASA then deletes all information in the rest of the report that could be used to identify the reporter. To further tighten up this security, the FAA has adopted a regulation, FAR 91.25, which specifically prohibits the use of these reports in any FAA enforcement action.
There is an important 10-day limit. To get the immunity benefit of avoiding a suspension of a pilot certificate or a fine, the pilot must act promptly to mail (or deliver) an aviation safety report within 10 days of an incident. The FAA applies this timing requirement strictly.
The FAA puts some limitations on the program. These limitations have not been troublesome to the overall benefit of the program to pilots, though they are obviously troublesome in the specific situations in which they apply. As we will explain, the program only applies to violations that are inadvertent and not deliberate. The program does not apply to reports evidencing criminal conduct, or to accidents, and it does not apply to reports evidencing that an airman lacks qualification or competency. It does not apply to repeat offenders within five years.
Unless the violation was "inadvertent and not deliberate," the FAA will not grant the immunity aspect of the program. Even though that language is broad, the FAA has been mostly reasonable in its application. Unless the conduct was really deliberate, or grossly negligent, the FAA has been granting immunity. To give some examples of how deliberate a violation must be, the FAA has not granted immunity for intentional flight below minimum safe altitudes (buzzing), illegal aerobatics, an intentional decision to fly an unairworthy aircraft, and the like. On the other hand, most TFR violations, reliance on a misleading aeronautical chart, and missing items on a preflight inspection have been ruled inadvertent.
Immunity will not be granted if the FAA's independent investigation determines that the pilot is not qualified or competent to hold his or her pilot certificate. Here, too, the FAA has interpreted this limitation reasonably, at least in our experience.
Here is the one limitation to the immunity aspect of the program that is most frequently misunderstood. Immunity will not be granted if, in the previous five years, the pilot has been involved in an FAA enforcement action and found in violation of any part of the FARs. This limitation is often misunderstood to mean that only one report may be filed in a five-year period. That's wrong. There is no limit to the number of times reports may be filed. It is only after an official finding of violation is made that immunity cannot be claimed during the next five years.
In the exceptions that we have explained, even though the immunity aspect will not be granted, the report will still be treated as confidential and anonymous. It is only in the next two exceptions that confidentiality and anonymity are lost. So, except for these remaining two exceptions, there is hardly any reason not to file a report following any unusual flying event.
Immunity will be granted only if the violation did not involve a criminal offense or an aircraft accident. It is important to be aware that information concerning a criminal offense will be sent to the U.S. Department of Justice and to the FAA. Information concerning accidents will be sent to the NTSB and to the FAA. In both cases, there will be no confidentiality or anonymity. The information will be sent without being de-identified. So, it bears repeating, except for these two exceptions, there is hardly any reason not to file a report following any unusual flying event.
Copies of the reporting forms are available from a number of sources, including AOPA (visit the AOPA Web site at https://www.aopa.org/apps/iforms/nasa/ or call 800/USA-AOPA), FAA flight standards district offices, flight service stations, NASA (by mail to NASA ASRS, Post Office Box 189, Moffett Field, California 94035-9800, and online ( www.awp.faa.gov/new/fsdo/general.pdf).
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