The quick answer is YES- if you meet all of the conditions listed below. Keep in mind this is SANCTION immunity only. The violation will still be placed on your record- you just will not have your license suspended or have to pay a fine if:
1. The violation was inadvertent and not deliberate;
2. The violation did not involve a criminal offense, or accident, or action under 49 U.S.C. Section 44709 (which discloses a lack of qualification or competency), which are wholly excluded from this policy;
3. The person has not been found to have committed a violation in any prior FAA enforcement action for a period of 5 years prior to the date of the occurrence; and
4. The person proves that, within 10 days after the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA under ASRS.
The FAA has developed a host of programs that effectively grant certificate holders immunity from prosecution, although in some instances an entry will remain on the airman's record for a period of time.
The Aviation Safety Reporting System
Discussed very briefly above, the most "popular" immunity program is NASA's Aviation Safety Reporting System (ASRS). The ASRS has roots in the FAA's Aviation Safety Reporting Program (ASRP) that started in 1975. The stated goal of the ASRS is to improve aviation safety by providing a venue where pilots, air traffic controllers, flight attendants, mechanics, ground personnel, and others involved in aviation operations can share information about unsafe situations that they have encountered or observed. With certain exceptions, the reports sent to NASA are held in strict confidence. NASA states that more than 715,000 reports have been submitted to date and no reporter's identity has ever been breached by the ASRS. In recent years, report intake has grown and now averages over 800 reports per week and more than 3,300 reports per month.
ASRS employees formally de-identify submitted reports before entering them into the incident database. The ASRS professional staff is composed of retired controllers, mechanics, as well as both active and retired pilots. To avoid conflicts of interest, ASRS analysts, researchers, and management personnel are not permitted to have ongoing employment relationships with the FAA, air carriers, or similar organizations. All personal and organizational names are removed from the reports. Dates, times, and related information, which could be used to infer an identity, are either generalized or eliminated.
The ASRS Forms vary depending on the party submitting the report. Pilots, dispatchers, and airport personnel are required to submit a specific form. Air traffic controllers, maintenance personnel, and cabin crews also have forms customized for their usage. Click here for a form that pilots use when submitting a report to NASA.
As discussed above, the FAA offers ASRS reporters further guarantees and incentives to report. Using the ASRS system can effectively provide sanction protection from certain types of enforcement actions. While the enforcement action will be recorded on the airman's record the proposed sanction (whether civil or suspension) will not be assessed if certain requirements are met. Airmen need to file the ASRS report within 10 days of a suspected violation. An untimely filing provides no protection. It is important that the airmen retain proof that the report has been filed in a timely manner and it is suggested that any report be submitted certified mail, return receipt requested, to avoid any timeliness issues.
The protection afforded to those that submit the ASRS form is not absolute. The ASRS assurance of confidentiality and the availability of waivers regarding sanctions do not extend to reports of accidents or criminal activity (e.g., hijacking, bomb threats, and drug running). Such reports should not be submitted to ASRS. If such reports are received, they are forwarded, with identifying data to relevant enforcement agencies.
Additional Voluntary Disclosure Reporting Programs
The FAA operates other voluntary disclosure programs with limited immunity features. The three most prominent ones are the FOQA, ASAP, and VDRP programs.
The Flight Operations Quality Assurance (FOQA)program collects and makes available for analysis digital flight data generated during normal national airspace operations. It provides objective data not available through other methods, supporting analysis and enhancement of operational procedures, flight paths, air traffic control procedures, maintenance, engineering, and training. The final FOQA rule, issued in 2001, codifies protections for airlines from the use of FOQA data for enforcement purposes, except where criminal or deliberate acts are involved. Only redacted versions of the data (de-identified and aggregated) are reviewed for operational trends. At least twenty airlines currently participate in FAA-approved FOQA programs.
The Aviation Safety Action Program (ASAP) encourages industry employees to report safety information that may be critical in identifying potential precursors to accidents. Safety issues are normally resolved through corrective action rather than through punishment or discipline. ASAP reports are discussed, and corrective actions formulated, by an Event Review Committee (ERC), which typically comprises representatives from the company, the employee's union (when applicable), and the FAA. Over 150 ASAP programs, covering pilots, mechanics, flight attendants and dispatchers are currently established.
The Voluntary Disclosure Reporting Program (VDRP)encourages regulated entities themselves (e.g. airlines, repair stations, etc.) to voluntarily report instances of regulatory non-compliance. In evaluating whether an apparent violation is covered by this policy, the FAA will ensure that the following five conditions are met:
1. The certificate holder, fractional ownership program, or production approval holder (PAH) has notified the FAA of the apparent violation immediately after detecting it and before the agency has learned of it by other means;
2. The apparent violation was inadvertent;
3. The apparent violation does not indicate a lack, or reasonable question, of qualification of the certificate holder, fractional ownership program, or PAH;
4. Immediate action, satisfactory to the FAA, was taken upon discovery to terminate the conduct that resulted in the apparent violation; and
5. The certificate holder, fractional ownership program, or PAH has developed or is developing a comprehensive fix and schedule of implementation satisfactory to the FAA. The comprehensive fix includes a follow up self-audit to ensure that the action taken corrects the noncompliance. This self-audit is in addition to any audits conducted by the FAA.
Companies submitting a voluntary disclosure under this program are obliged to develop, implement, and demonstrate the effectiveness of a "comprehensive fix" sufficient to prevent further occurrences of the same violation. If the above conditions are met and the FAA is notified prior to, or in anticipation of, the FAA instigating an investigation the FAA will normally forego legal enforcement action proceedings. The VDRP program enables the FAA to participate in root-cause analysis of events leading up to violations, and to propose and monitor corrective actions. The number of VDRP disclosures nationally, from air carriers, currently exceeds 100 per month.
Each of the programs have specific rules and restrictions attached, designed to protect those individuals or entities that make well-intentioned disclosures. Keep in mind that protection against enforcement will not apply to intentional or criminal actions, which had already been detected by the FAA, which resulted in accidents, or which was not reported in a timely fashion. The rules also prohibit the acceptance by the FAA of disclosures that duplicate prior events. It is highly recommended that prior to participating in the programs airmen thoroughly review applicable directions and guidelines and, if able, consult with a knowledgeable aviation attorney. Hopefully utilizing one of these appropriate programs will result in no, or limited action, against the certificate holder. In the event that the matter cannot be resolved the next section includes some basic guidelines on how to formally defend yourself if an enforcement action is brought against you, or your company.
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Written by Michael Pearson and designed for both students and aviation law practitioners who need a basic guidebook in this unique area of law.
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