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Voluntary Disclosure and the Airman

By By Arthur J. Negrette  | November 1, 2015

Not too long ago, a young pilot was operating an aircraft as an employee of a Part 135 airfreight company. In preparation to land, the pilot experienced mechanical difficulties when trying to extend the landing gear. The nose and right main gear lights were green, but the left main showed red.

After several recycling attempts, the pilot succeeded in lowering all wheels, landed uneventfully and went on to complete his schedule without further difficulty. Afterward, the pilot conferred with maintenance on the gear issue and was advised that such mechanical irregularities were common during cold weather operations.

Three days later, in the same aircraft, the pilot had difficulty lowering the gear on approach but succeeded after several recycles. Again the pilot discussed the problem with the maintenance team, including the chief of maintenance. No maintenance action was taken, nor did the pilot make a logbook entry detailing the malfunctions, as required by the company’s operations specifications and Federal Aviation Regulations (FARs).

The following day, the pilot declined to accept the aircraft and it was assigned to a different pilot, who experienced the same problem. He declared an emergency, diverted to an airport where emergency equipment was standing by and succeeded in lowering the gear and landing.

While the aircraft was still airborne, the company notified the FAA and an inspector traveled to the landing airport. There, a company employee said he wanted to disclose the violation to the inspector. After the second pilot landed safely, the maintenance ground crew found that the landing gear was damaged.

Nine days later, the company sent a letter to the FAA saying the cause of the incident was a lack of communication between the pilot and maintenance, and the letter was a “self-disclosure” in accordance with Advisory Circular (AC) 00-58, Voluntary Disclosure Reporting Program.

Under that circular, the FAA agrees to forgo enforcement action under certain circumstances to encourage voluntary reporting of regulatory violations. In this context, the company’s voluntary disclosure included the first pilot’s failure to make logbook entries of the gear problems.

The FAA used “prosecutorial discretion” to not pursue action against the company or its maintenance personnel. But it did act against the pilot, proposing a 60-day suspension of the pilot’s airman certificate for failing to log the problems, operating an unairworthy aircraft and operating an aircraft in a careless or reckless manner.

The pilot appealed to the NTSB, arguing before an administrative law judge that he was immune to the FAA’s enforcement action because of the company’s voluntary self-disclosure and his compliance with the AC. The judge upheld the FAA’s action (but reduced the suspension to 50 days based on the pilot’s consultation with company mechanics on the gear problems).

The pilot appealed to the full NTSB, which affirmed the judge’s decision.

Undaunted, the pilot went to the U.S. Court of Appeals, which found that the NTSB’s conclusions were contrary to its legal charter and inconsistent with its own precedent. It vacated the NTSB’s decision and sent the case back to the judge, with instructions to allow the pilot to introduce evidence of his compliance with AC 00-58’s requirements for “individual airman immunity.”

A pilot’s sole reliance on AC 00-58 to provide immunity from FAA sanctions is misplaced. The circular clearly states the program it describes is designed to induce air carriers and other certificate holders to voluntarily disclose violations and “does not apply to violations by individual airmen” except in specific instances.

In some instances, the voluntary disclosure program might extend immunity to protect a certificate-holder’s employees. However, an airman’s more prudent course of action would be to communicate closely with the employer’s chief inspector and safety director prior to the filing of any self-disclosure statement with the FAA. This might help determine if the disclosure will comply with the immunity requirements for an individual airman.

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