NASA Aviation Safety Reporting Program, ASAP, and Other VDPs
In the event that the fear of exposure cannot be overcome by other means, it might be profitable if we explored a system of incident reporting which would assure a substantial flow of vital information to the computer for processing, and at the same time, would provide some method designed to effectively eliminate the personal aspect of the individual occurrences so that the information derived would be helpful to all and harmful to none.
–Bobbie R. Allen, Director CAB, Madrid, 1966
The Administrator of the FAA will not use reports submitted to the National Aeronautics and Space Administration under the Aviation Safety Reporting Program (or information derived therefrom) in any enforcement action except information concerning accidents or criminal offenses which are wholly excluded from the Program.
–C.F.R. § 91.25 (1979) (formerly 14 C.F.R. § 91.57)
NASA Aviation Safety Reporting Program
The ultimate purpose or goal of the NASA Aviation Safety Reporting Program is to enhance and improve aviation safety. It attempts to identify aviation system deficiencies by using de-identified and voluntary reports submitted by pilots, mechanics, flight attendants, and air traffic controllers, to issues alerts to those personnel in a position to address these system deficiencies.
Voluntary, Confidential, and Waiver of Sanction
Because the program is voluntary, it must offer incentives to individuals to encourage the submission of the requested information. These incentives are as follows: first, the qualifying reports are held in strict confidence; second, the FAA has committed to not use ASRS information against reporters in enforcement actions; third, the FAA has also chosen to waive fines and penalties, subject to certain limitations, for unintentional violations of federal aviation statutes and regulations which are reported to ASRS.
Many pilots refer to this as their “Get out of Jail Free” Card, but this is technically incorrect. In keeping with the board game parlance, it would be better stated as a “Get out of Jail with a record” card.
Under normal circumstances, the proper submission of a form under the NASA Aviation Safety Reporting Program is one of the best ways an airman (pilot and mechanic), cabin crew member or Air Traffic Controller can protect himself or herself from the imposition of a suspension of their FAA certificate. It has been the experience of this firm that with the proper submission of a NASA Form, there is limited or no downside, strategically speaking.
In order to understand what is mean by “proper” submission, one must first be familiar with: (i) the exclusions of the NASA ASRS program, (ii) the types of events or alleged violations the FAA is unwilling to grant any waiver of penalty, and (iii) the NASA ARC 277 Form itself.
NASA ASRS Exclusions
According to the NASA ASRS website, “The ASRS assurance of confidentiality and the availability of waivers of disciplinary action 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 identified to cognizant agencies.” Such accidents and activities are specifically excluded by regulation (see FAR Part 91.25).
This means that not only is the reporter not afforded the protection possible under the program, but the entire submitted report (including all identifiable information) will be forwarded to the FAA, Department of Justice, etc.
Events the FAA is Unwilling to Grant Waiver of Penalty
As stated above, the FAA has chosen to grant a Waiver of Penalty for alleged violations that were reported to the NASA ASRS so long as the following conditions are met:
- The alleged violation must be inadvertent and not deliberate;
- The investigation must not reveal an event subject to Section 609 of the Federal Aviation Act (i.e., the alleged violation does not call into question an individuals qualification or competency to hold the certificate);
- The reporter must not have been to have committed a violation of the FARs or the Federal Aviation Act during the preceding five years; and
- The ASRS report must be submitted within 10 days of the alleged violation or within 10 days of date the reporter became aware of, or should have been aware of the alleged violation.
Failure of the reporter to meet these conditions do not result in the FAA receiving a de-identified copy of the report as in the excluded reports (accidents and criminal activity described above); it just means that the FAA may not extend the waiver of sanction protection to the individual submitting the report. Consequently, it is generally still in individual’s best interest to properly submit a NASA Report, even if the individual believes that he or she will not meet the criteria listed above.
NASA Form ARC 277
An individual electing to take advantage of the NASA ASRP will do so by completing NASA Form ARC 277. This form can be found online here, and can be completed and submitted electronically (make sure to print a copy for your own records), or printed, manually completed, and mailed to: NASA Aviation Safety Reporting System, PO Box 189, Moffett Field, California 94035-0189.
To understand proper completion of this form, it helps to conceptually break the form down into two different components. The first component is called the “Identification Strip,” and consists of everything above the statement, “Please Fill in Appropriate Spaces and Check All Items Which Apply to this Event or Situation.” This Identification Strip is the portion which NASA will return to you through the mail, and is evidence that you submitted the report. The second component is everything else found below that statement (the “Report”). This is the portion which will be de-identified and processed through the program.
When completing the Identification Strip, pay particular attention to the “Type of Event/Situation” entry. Recall from the previous paragraph that the Identification Strip is used as evidence by the reporter to prove he or she participated in the ASRP. This strip will be used as the exhibit during the NTSB Hearing of the alleged violation to assert the defense of waiver of penalty. It would not be prudent for the “Type of Event/Situation” to make a damaging admission against the individual submitting the report of which the FAA may have had a tough time proving (for example, consider the impact of “ran out of gas” versus “forced landing”).
When completing the Report the primary concerns is to not describe an event that triggers an exclusion from the program. For instance, if a pilot is reporting the circumstances surrounding a gear up landing, make sure to prominently state that the damage caused by the gear up landing does not meet the NTSB’s definition of accident.
Frequently Asked Questions
I was told that I can file a NASA Form once every five years, is that true? / How often can I file a NASA Form?
There is no restriction on how often a NASA Form can be filed. A pilot could file on after every flight (or multiple forms per flight if necessary!). It is a common misconception that the form can be filed only once every five years.
Can mechanics, flight attendants, and air traffic controllers file NASA Forms, or is it just for pilots?
The NASA ASRP invites pilots, controllers, flight attendants, maintenance personnel, dispatchers, and other users of the National Airspace System (NAS), or any other person to report to NASA actual or potential discrepancies and deficiencies involving the safety of aviation operations.
Can The Kientzy Law Firm assist me in completing my NASA ASRS Form?
Absolutely. First, we will need to discuss your matter, and enter into an engagement agreement acceptable to both parties before assisting you. Typically, completing these forms is a step that an individual can take on his or her own, but under certain circumstances (accident, illegal activity, replying in response to receipt of a LOI), it is advisable to work with an experienced aviation attorney before submitting the form.
Is it too late to file a NASA Form after receiving a FAA Letter of Investigation?
It depends. With the recent revision to AC No. 00-46, the FAA Advisory Circular which describes the ASRP, the FAA has changed the ten-day reporting time 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. If supported by the facts, it is possible that an individual may not have been aware or could not have been aware of the violation prior to receipt of the LOI.
I am skeptical that de-identification is insufficient to protect my interests should I file a NASA Form. Should I be concerned?
Probably not. It has been the experience of this firm that those personnel who receive and review the Identification Strip and Report take their job and duty of confidentiality very seriously. In fact, do not loose your return Identification Slip as this may be the only way to ever prove you participated in the program.
