After an accident, the proper thing to do is find out what caused it, fix
it, and prevent similar accidents from happening again. Take, for instance,
a guest injured at your home. Your mother-in-law was over for dinner, and
after berating you over some insignificant triviality, she heads for the
bathroom. There, unbeknownst to her, you have been fixing the loose toilet
seat. Unfortunately, you never got around to affixing the seat to the toilet.
Your unsuspecting mother-in-law sits down to use the facilities, and plop,
falls smack dab into the middle of the toilet bowl, sustaining serious and
permanent injuries. Immediately, you fix the toilet so that nobody else
suffers the same fate. Several months later, your mother-in-law's lawyer
is taking your deposition, and attempts to prove his case of negligence
by the fact that the toilet must have been dangerous since you repaired
it. Fortunately for you, the law in most states is that subsequent remedial
measures (fixing the toilet) cannot be used as evidence to prove negligence.
If such post- accident remedies were allowed as evidence to prove negligence,
people would have less incentive to repair dangerous defects.
Under certain circumstances, pilots have the option of subsequent remedial
measures after a violation of FARs which may lessen, or perhaps extinguish
any civil penalty or certificate action which the FAA had the option to
pursue. Two reporting procedures all pilots should be aware of are the Aviation
Safety Reporting Program (ASRP), and the Air Carrier Voluntary Disclosure
Reporting Procedures.
Under the ASRP, the National Aeronautics and Space Administration (NASA)
acts to receive and analyze reports of pilots, controllers, mechanics, and
others in the aviation industry, so that deficiencies within the National
Aviation System may be improved or remedied. Since its inception in 1975,
the ASRP has become an avenue through which pilots can file NASA reports,
and possibly shield themselves from enforcement actions. NASA reports are
available at local Flight Standards District Offices, or directly from NASA
at the ASRS office, P.O. Box 189, Moffett Field, CA 94035. I recommend all
pilots obtain a supply of the reporting forms, preferable from NASA. Going
to the FAA office can prove embarrassing. Case in point, some time ago while
returning home in my Debonair, I ventured close to a restricted area. Based
upon my knowledge of the area, repeated looks at the sectional chart, and
taking note of VOR radials and the always reliable GPS, I was certain to
be east of the restricted area. When I called the TRACON facility for flight
following, and to pick up an IFR approach, I was advised I was closer to
the restricted area than my calculations placed me. In fact, the controller
said I was inside the restricted area! Rather than argue the point, I politely
followed his suggestion of a heading out of danger, and that was the last
I heard of it. However, being one to always advise others to file NASA reports
when in doubt, I decided to follow my own advice. Depleted of the supply
of forms I give to clients, I went to the local FSDO to pick up a few. I
asked the specialist for a form, and he smiled. "For a friend, right?"
he chortled. I was caught, red handed. "Naturally," I replied,
and walked out of the office with my tail between my legs. It may be easier
on the ego just to write away to NASA for a supply of forms.
Why go to the trouble of sending in a reporting form? Because under many
circumstances it may prevent a civil penalty or certificate action from
being imposed. The FAA looks at the filing of such a report as a constructive
attitude, which could prevent future violations. Thus, the leniency. In
order for preclusion of the penalty:
(1) The violation must not be deliberate;
(2) The violation must not involve a criminal offense, or accident, or action
under 609 of the Federal Aviation Act, which discloses a lack of competency,
which are wholly excluded from this policy;
(3) The person has not been found in any prior FAA enforcement action to
have committed a violation of the Federal Aviation Act, or of any regulation
promulgated under the Act 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.
It is crucial that the form be delivered within 10 days. Always mail it
return receipt requested. Like magnetos in a reciprocating engine, this
provides you with redundancy. NASA will send you a receipt form, indicating
they did receive the form within 10 days. But, if for some reason they do
not, you will have the return receipt from the post office as proof, should
it become necessary.
While timely filing of a report may get you out of a civil penalty or suspension,
the incident will still be placed on your record. In other words, you may
not have your license suspended for 30 days after violating restricted airspace,
but it would still show on the record that a violation occurred. When seeking
employment, this could be as bad as the actual suspension. Therefore, if
there is doubt as to whether or not the infraction occurred, fight it. This
buys time, and if the FAA has insufficient evidence to prove their case,
you may end up a winner. Either way, everything you put down on the NASA
reporting form remains confidential. It cannot be used by the FAA. So do
not hesitate to spell out all pertinent facts. Remember, the objective here
was not to get pilots off the hook, but to prevent future similar accidents
from occurring.
For charter and air carrier operators, another voluntary reporting procedure
exists - that as described in AC 120-56. As stated therein:
"Air carriers are encouraged, but not required, to develop
Internal Evaluation Programs that continually monitor company policies
and procedures and ensure that the highest level of safety compliance is
maintained. However, operators may voluntarily disclose apparent violations
in accordance with the procedures set forth in this AC even if an Internal
Evaluation program has not been established. . .
"The FAA's enforcement program has always been considered a
means, not an end, to achieving compliance with the FAR through remedial
and punitive measures. However, the negative incentive of deterrence, as
served by civil penalties, is not always effective. The public interest
is served also by positive incentives to promote and achieve compliance.
Indeed, the FAA believes that aviation safety is well served by incentives
to certificate holders to identify and correct their own instances of noncompliance
by investing more resources in efforts to preclude their recurrence. The
FAA's newly adopted policy of foregoing civil penalty actions when a certificate
holder detects violations, promptly discloses violations to the FAA, and
takes prompt corrective action to ensure that the same or similar violations
do not recur, is designed to encourage compliance with the FAR, foster
safe operating practices, and promote the development of Internal Evaluation
Programs."
If a certificate holder complies with this program, a letter of correction will be issued, instead of a civil penalty action. A letter of correction is expunged from a pilot's file after two years. It is important to note, however, that even if one complies with this program, the FAA can still decided to pursue enforcement proceedings. The FAA looks carefully at whether:
(1) The certificate holder immediately notified the FAA of the apparent violation after detecting, and before the agency learned of it.
(2) The apparent violation must have been inadvertent.
(3) the apparent violation does not indicate a lack, or reasonable question, of basic qualification of the certificate holder.
(4) Immediate action must have been taken, or begun to have been taken, upon discovery to terminate the conduct that resulted in the apparent violation.
(5) The certificate holder must develop and implement a comprehensive fix satisfactory to the FAA.
The best way to avoid trouble is through planning, and the use of reasonable care. Nonetheless, even the best laid plans of mice and men oft go to naught, or whatever. Use of the ASRP or Air Carrier Voluntary Disclosure Reporting procedures, if used properly, can act as subsequent remedial measures in the life of an aviator.
Back to main page Charles M. Finkel is an attorney specializing in aviation law with offices in Beverly Hills, California. Owner of a Beechcraft Debonair and co-pilot on the B-25 Heavenly Body, Charles M. Finkel has been a licensed pilot for 30 years and has ATP, CFI, CFII, CFIMEL, and Glider licenses. He is a monthly contributor to Air Progress and Flying Career magazines. If you have any legal questions, please call 213.655.9989 or contact me at clfinkel@earthlink.net