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Legal Perspective

By By Arthur J. Negrette | February 1, 2016



 

I previously have discussed the FAA’s Voluntary Disclosure Reporting Program, asking whether it protects you.

Because of shortcomings in that program and the application of rules and procedures related to it, I encouraged individual airmen to immediately file a report with NASA’s Aviation Safety Reporting System (using Form ARC 277B) in accordance with Federal Aviation Regulation 91.25 and Advisory Circular 00-46E. You should do this whether your employer makes any voluntary disclosure of a possible regulatory violation.

That advisory circular says the FAA considers the action of filing a NASA Aviation Safety Reporting System report on an incident or possible regulatory violation “to be indicative of a constructive attitude,” adding that “such an attitude will tend to prevent future violations.”

This might mean that, even if the FAA makes a finding that a violation occurred, it may not impose a civil penalty or suspend your certificate.

There are key considerations, however. The FAA must be satisfied that the violation “was inadvertent and not deliberate,” according to the advisory circular.

It also wants to know that the violation did not involve a criminal offense or an accident or action that “discloses a lack of qualification or competency” under specific U.S. laws and regulations. These rules include the accident and incident reporting requirements of the National Transportation Safety Board. (Such accidents and actions are specifically excluded from this protection, as are crimes.)

The FAA also must be satisfied that the person who filed the NASA report had not been found in a previous enforcement action to have committed a violation in the five years prior to the reported event.

Finally, the reporter must prove that he or she filed the report with NASA within 10 days after either the violation occurred or the person became aware of it “or should have been aware of the violation,“ according to the advisory circular.

Although most professional aviation personnel are aware of the Aviation Safety Reporting System, it is often mischaracterized as a “get out of jail free” card.

As noted above, filing a report with NASA actually might hurt your interests if the reported event is excluded categorically. If it involves a criminal offense or aircraft accident, NASA will provide the reported information not just to the FAA, but also to other federal agencies, including the Justice Department and the NTSB, for appropriate action.

Apart from these excluded occurrences, the most often cited justification for rejecting an airman’s claim of immunity from an FAA-imposed fine or certificate suspension sanction is the requirement that the “violation was inadvertent and not deliberate.”

This justification has been the subject of numerous legal decisions and interpretations. Perhaps the seminal case was 1982’s Ferguson v. NTSB and Langhorne Bond, Administrator, FAA. In that case, the 9th Circuit Court of Appeals held that the advisory circular’s scope “does not allow a waiver of punishment for reckless conduct,” adding that the phrase “inadvertent and not deliberate” cannot encompass reckless conduct.

The case involved Ferguson’s actions as pilot-in-command of a Western Airlines Boeing 737 that landed at the wrong airport during a night VFR approach in unrestricted visibility. The court found that Ferguson reflected purposeful reckless choices that connoted “a substantially greater degree of lack of care than inadvertence” and barred him from protection based on his NASA report.

Certificate holders should remember that even when the protection afforded by the Aviation Safety Reporting System is applicable, and they successfully obtain immunity from a proposed certificate suspension or fine, they nevertheless are “charged” with a FAR violation. Accordingly, if a certificate holder believes he or she may have violated a FAR, that person should immediately seek the advice of counsel, even before submitting a report to NASA.

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