Greg Reigel's Aero Legal Services

The Aviation Safety Reporting Program: No Sanction Waiver For Intentional Violation

© June, 2007 All rights reserved.

Many airmen are familiar with the Aviation Safety Reporting Program (“ASRP”). Some view the ASRP as a “get out of jail free” card. Unfortunately, the program does have some limitations.

The Program

Under the ASRP, as explained in Advisory Circular 00-46D if an airman files an ASRP form (also somewhat inappropriately referred to as the "NASA form" since NASA is only the administrator of the ASRP) within 10 days of an incident, any sanction that may be imposed in a subsequent enforcement action can be waived. The program does not affect an actual finding of violation against the airman. Rather, it simply provides a waiver of any sanction the FAA might seek to impose for the violation.

However, the program does not apply in all situations. The sanction waiver will not be available when: (1) the airman did not file the ASRP form within 10 days of the incident; (2) the violation was deliberate or intentional; (3) the incident involved the airman’s commission of a criminal offense; (3) the ASRP filing arose out of an accident; (4) the conduct of the airman giving rise to the violation exhibited incompetence or lack of qualification; or (5) the airman has another finding of violation against him or her within the last 5 years.

A Case Of Intentional Conduct

A recent NTSB case illustrates the consequences of an intentional or deliberate violation and the loss of the sanction waiver that would otherwise be available with a timely filed ASRP form. In Administrator v. Simmons, the FAA alleged that the airman violated FARs 91.13(a) (careless and reckless), 91.111(a) (causing a collision hazard), and 91.155(a) (VFR weather minimums) when he departed in VFR conditions, entered instrument meteorological conditions without activating his IFR flight plan or obtaining the appropriate ATC clearance and then created a collision hazard when he passed within 400-700 feet of a passenger carrying commercial aircraft.

After the airman failed to file an answer to the FAA’s complaint, the ALJ granted the FAA's motion for summary judgment and affirmed the violations as alleged by the FAA. The ALJ also determined that a hearing was required regarding the 240-day suspension the FAA was seeking to impose upon the airman. However, after a hearing solely on the issue of sanction, the ALJ affirmed the 240-day suspension and refused to waive the sanction pursuant to the airman's timely filed ASRP form, finding that the airman's operation of the aircraft in the IMC environment was not inadvertent.

On appeal to the full Board, the airman argued that the ALJ's failure to waive the sanction was error. However, the Board agreed with the ALJ's conclusion that "when one places oneself at a significantly increased risk of committing a violation, then the violation is foreseeable and therefore not inadvertent." It observed "the ASRP will not obviate the imposition of a sanction when an operator’s conduct is deliberate or intentional such that it reflects a 'wanton disregard of the safety of others' or a 'gross disregard for safety.'"

The Board then reviewed the facts underlying the violations and found that the close proximity to the other aircraft at the time of the relevant events presented a significant safety issue. Additionally, the Board felt that the airman's entry into the IMC area very soon after taking off, and his climbing over 2,000 vertical feet while in foreseeable IMC conditions without having activated his IFR flight plan or obtaining the requisite ATC clearance indicated that the airman's encounter with the IMC area was foreseeable and reckless. As a result, the Board concluded that waiver of sanction would be inappropriate.

Conclusion

The ASRP can provide a great benefit for airmen. I encourage airmen to file an ASRP form after any flight in which a potential FAR violation occurred or that involved circumstances that may have affected the safety of the flight. The ASRP forms are available through your local FSDO or you can file the form online here. However, keep in mind that the program is not without limit. Airmen are well advised to be familiar with and use the program, but to also understand the circumstances under which sanction waiver will not be available.