June 1, 2009
By John S. Yodice
John S. Yodice is an active pilot who flies a Cessna 310 based in Maryland.
It seems time again to remind pilots of the Aviation Safety Reporting Program (ASRP). Pilots are calling the AOPA Legal Service Plan offices, seeking legal guidance about a flying incident, and when we ask, too many say that they did not file an ASRP report. They say that they forgot about the program, or never were aware of it. By then our reminder is often too late to do the pilot any good.
The main reason for the ASRP 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 FARs. 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, and, in return, the FAA will waive certificate suspension 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.
In this column, though, I 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’s certificate.
Here is how the program works. In order to guarantee the confidentiality of the reports and the anonymity of the reporters, NASA (the National Aeronautics and Space Administration) 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. ARC Form 277B, the one for general use, is the one that pilots should use, and is generally available (including on the AOPA Web site or by calling 800-USA-AOPA). The forms are preaddressed to NASA, and franked (postage paid). It is frequently advisable to mail 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 will then delete all information in the rest of the report that could be used to identify the reporter. To further tighten up this security, FAR 91.25 specifically prohibits the use of these reports in any FAA enforcement action. The newest method of filing a report is on the Internet.
There is an important 10-day limit. To get the immunity benefit of avoiding a suspension of a pilot certificate, the pilot must act promptly to mail (or deliver, including via the Internet) an Aviation Safety Report within 10 days of an incident. The FAA applies this timing requirement strictly.
The program only applies to violations that are inadvertent and not deliberate. Most pilot incidents are. 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.
In the specific terms of the policy, the FAA will not grant immunity unless the violation was inadvertent and not deliberate. In the past, the FAA had been mostly reasonable in interpreting this language. Unless the conduct was really deliberate, or grossly negligent, the FAA had been granting immunity. In more recent times, the FAA has arbitrarily tightened up on its interpretations.
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. The FAA continues to interpret this exception reasonably.
Here is the one limitation 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 to be 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 I have explained, even though the immunity aspect may not be granted, the report will still be treated as confidential and anonymous. So, even though the FAA is tightening up on its interpretation of inadvertent and not deliberate, there is no reason not to file. It is only in the next two exceptions, that confidentiality and anonymity is lost.
Immunity will be granted only if the violation did not involve a “criminal offense” or an “aircraft accident” (as very narrowly defined by NTSB). 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 emphasizing—except for these two exceptions, there is hardly any reason not to file a report following any unusual flying event.
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