If you have ever been to any of the presentations that I have given on FAA Enforcement Actions, you may recall that I am a big proponent of the NASA ASRS program. In fact I have often stated that completed correctly, there is no downside, strategically speaking, to filing a NASA form. Notwithstanding my generally being an advocate for this program, you may also recall that I did have one chief criticism regarding an obvious inconsistency with the criteria an airman must meet in order to avail himself or herself of the benefits of the program.
Most airmen recognize that in order to enjoy the benefits of the program, he or she must have reported a violation that was: inadvertent and not deliberate, and did not involve any criminal offense, accident, or which discloses a lack of qualification. Further the airman must not have been found in any prior FAA Enforcement Action to have violated the rules for a period of 5 years prior to the date of occurrence, and the airman proves that, within 10 days after the violation, he or she filed the form with NASA.
After I review these requirements with the participants of my presentation, I do my best to explain how the NTSB Board has grappled in applying the “inadvertent and not deliberate” criteria, and either use the oft-cited example of the spilled coffee altitude bust, or, if something had gone wrong during the presentation I’m giving (contrived spilled water demonstration, technical difficulties, etc), I will try to incorporate that into a discussion of whether such event was legally “inadvertent and not deliberate.” In conclusion of this sub-topic, I ask whether the participants can think of a better example of “inadvertent and not deliberate”? Usually, the answer is given, “some violation that you didn’t even know had occurred.” Think clipping the corner of Class B airspace.
We then circle back to the ten day filing requirement, and, here comes the rub, I ask the rhetorical question, “how can you file a NASA Form within 10 days of the violation, if you didn’t even know it had occurred?” This inherent inconsistency has affected multiple cases that I have worked on, and has been a source of frustration for many airman (and their attorneys alike!).
However, there may be some relief in sight. With the recent revision to AC No. 00-46, the FAA Advisory Circular which describes the ASRP, the Administrator has changed the ten-day requirement to read as follows: The person proves that, within 10 days after the violation, or date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA. Ostensibly, this change is intended to alleviate the long-standing criticism that I have been addressing during my presentation.
Unfortunately for our purposes, at the date of writing this post, there have yet to be any cases that have addressed this new language. It is uncertain how the NTSB ALJs will interpret the new provision (specifically, “should have been aware“), and whether (or how) an airman will prove that he or she shouldn’t have been aware sooner than he or she actually was. Presumably, the actual receipt by the airman of a Letter of Investigation from the local FSDO might set an outside limit. But reading the plain language of the Advisory Circular there is one thing that remains clear–it will be the Airman’s burden to prove that he or she met the requirements of the program.
EJK
To file a NASA Report: http://asrs.arc.nasa.gov/
To read the AC: http://asrs.arc.nasa.gov/overview/immunity.html
