July 31, 2014
By John S. Yodice
It is time to remind readers about the FAA’s Aviation Safety Reporting Program—administered by NASA as the Aviation Safety Reporting System (ASRS)—which could save a pilot from the suspension of his or her FAA pilot certificate. Pilots call the AOPA Legal Service Plan, seeking legal guidance about a flying incident, and too many say that they did not file an ASRS report. They had forgotten about the program, or never were aware of it. By then our reminder often is too late to help.
The main reason for the program, which is background to this reminder, is to provide a free flow of safety information to the FAA and others. The program accomplishes this by inviting reports 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 a method by which the FAA can get 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.
With this background, in order to guarantee to pilots the confidentiality of their 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. The reporting form for general use, ARC Form 277B, is the one that pilots should use, and is generally available online (including the AOPA website). The forms are preaddressed to NASA. 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. Growing in popularity is the method of filing a report on the Internet (http://asrs.arc.nasa.gov/report/electronic.html).
There is an important 10-day limit. To get the immunity benefit of avoiding a certificate suspension, the pilot must act promptly to mail (or deliver, including via the Internet) an Aviation Safety Report within 10 days of (or becoming aware of) a potential violation.
There are some common-sense exceptions to the program. The FAA will not grant immunity unless the violation was “inadvertent and not deliberate.” In the past, the FAA had been reasonable in interpreting this language. Unless the conduct really was deliberate, or grossly negligent, the FAA had been granting immunity. In more recent times, the FAA has been tightening up on its interpretation of what is inadvertent.
Immunity will not be granted if the FAA’s 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 exception to the immunity aspect of the program that is 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 stated exceptions, 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 are 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 a report reflecting a criminal offense will be sent to the U.S. Department of Justice and to the FAA. Reports reflecting an accident 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.
Except for these last two exceptions, there is hardly any reason not to file a report following any unusual flying event.
John S. Yodice is a legal counselor for the AOPA Legal Services Plan.
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