Pilot Counsel: ASRS

The ‘get-out-of-jail-free’ program

September 1, 2013

John S. YodiceIt seems time again to remind pilots about the FAA’s Aviation Safety Reporting Program (ASRP), administered by the National Aeronautics and Space Administration (NASA) as the Aviation Safety Reporting System (ASRS). That is because pilots are calling the AOPA Legal Services Plan, seeking legal guidance about a flying incident in which they were involved, and, when we ask, too many say that they did not file an ASRS report. They explain that they had forgotten about the program, or never were aware of it. By then our reminder is often too late to do the pilot any good. So, this more current reminder.

The main reason for the ASRS is to provide a free flow of safety information to the FAA and others. For our purposes in this column, though, I want to emphasize the “get-out-of-jail” immunity aspect of the program. It can provide significant protection to a pilot from the danger of a suspension of his or her pilot’s certificate.

Here is how the pilot-reporting 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 safety 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 (on the AOPA website or by calling 800-USA-AOPA).

It is frequently advisable to mail the form by certified mail, return receipt requested, against the possibility of lost mail. Alternatively, the newest method of filing a report is on the Internet (asrs.arc.nasa.gov/report/electronic.html). The form is in two parts: an 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 and returned to the reporting pilot. 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.

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 online) an aviation safety report within 10 days of an incident. The FAA applies this timing requirement strictly.

There are a few limited exceptions to the program. 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. These are not
typically problems.

However, the program does not apply to repeat offenders within five years. Here is the one exception 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 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 by the FAA that immunity cannot be claimed during the next five years.

Pilots should understand that there is hardly any reason not to file a report (except the two noted below) because immunity is usually granted if an FAA enforcement action results from an event, and even if for some reason the immunity aspect is not granted, the report will still be treated as confidential and anonymous. 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 the NTSB). It is important to be aware that information concerning a criminal offense will be sent to the United States 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 reminding that, except for these two exceptions, there is no reason not to file a report following any unusual flying event that has any possibility of FAA enforcement.

John S. Yodice is a legal expert for AOPA Pilot Protection Services. He will be a featured speaker at AOPA Aviation Summit 2013.