Proper use of the ASRS system....

[JediNein]

Whooo, that was a fast response. So, ASRS is not a get-out-of-jail free for everything. The standards as set by the guys in the black suits: http://www.ntsb.gov/alj/alj/O_n_O/docs/aviation/5275.PDF

Enjoy!

 

[avbug]

From that report:

The law judge carefully considered the application of the ASRP to the facts of the instant case, and concluded that, although respondent had filed a timely report with NASA, his operation of the aircraft in the IMC environment was not inadvertent. The law judge stated that, when one places oneself at a significantly increased risk of committing a violation, then the violation is foreseeable and therefore not inadvertent. Tr. 99-100. We find that the relevant case law supports this conclusion. We have long held that 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.” Administrator v. Fay, 7 NTSB 951, 956 (1991); see also Ferguson v. NTSB, 678 F.2d 821 (9th Cir. 1982); Administrator v. Understein, 3 NTSB 3552, 3558, order den. recon., 3 NTSB 3564 (1981). We have also stated that, in general, the ASRP was never designed to protect those who exhibit a reckless disregard for safety. den. recon., 3 NTSB 3564 (1981). Administrator v. Halbert, NTSB Order No. EA-3628 at 3 (1992).

Somewhat obviates the concept that the program is used to avoid prosecution only...seeing as it isn't applicable to deliberate actions, and therefore falls upon only safety related issues of various types.

 

[A Squared]

Somewhat obviates the concept that the program is used to avoid prosecution only...seeing as it isn't applicable to deliberate actions, and therefore falls upon only safety related issues of various types.

Exactly. To expand on that a little, if it's inadvertant, it's a human factors issue, ratehre than a disipline problem. The purpose of ASRS is to study human factors, among other things.

 

[JimNtexas]

Whooo, that was a fast response. So, ASRS is not a get-out-of-jail free for everything. The standards as set by the guys in the black suits:

The standards are spelled out clearly in the ASRS advisory circular, not by 'guys in black suits'. The applicable rule is quoted in footnote 12 of the above mentioned report (emphasis added):

Under the ASRP, the imposition of a sanction may be waived, despite the finding of a regulatory violation, as long as certain other requirements are satisfied. Aviation Safety Reporting Program, Advisory Circular 00-46D at ¶ 9c (Feb. 26, 1997). The Program involves filing a report with the National Aeronautics and Space Administration (NASA); the filing of a report with NASA concerning a violation of the Federal Aviation Regulations may obviate the imposition of a sanction where (1) the violation was inadvertent and not deliberate; (2) the violation did not involve a criminal offense, accident, or action found at 49 U.S.C. § 44709; (3) the person has not been found in any prior FAA enforcement action to have committed a regulatory violation for the past 5 years; and (4) the person completes and mails a written report of the incident to NASA within 10 days of the violation.

According to the Opinion the pilot filed for an IFR departure from Telluride, where the weather was very marginal VMC at best. Told there would be a long departure delay, the pilot elected to depart under visual flight rules. I'm sure one factor in the ultimate decision was the pilot's testimony that "never intended to fly in IFR conditions". The Judge mentions "We note that this claim is at odds with respondent’s decision to file an IFR flight plan." In other words, "We are not amused".

The airline Captain on an ILS approach who saw this VFR airplane pass opposite direction 700 feet away while the respondent pilot flew outbound on the localizer in IMC conditions was even less amused.

A point very relevant to our discussions here is the way in which the actual ASRS report was used in these proceeding. As I pointed out in some our earlier discussions the only part of the ASRS report that can be used by the FAA is the strip that describes the incident, the one NASA mails back to you and that your lawyer will present if the FAA takes certificate action.

In this case the identification strip (and only the strip) was used to establish the time of the incident (footnote 6).

In the end somebody had to make a judgment if the respondent pilot's entry into IMC on a VFR flight was inadvertent. If the incident was inadvertent then the ASRS report would justify waving the 240 day ticket suspension. If not, then the suspension should stand.

In this case we the guy we hire to make these judgments (the Judge) judged that the respondent pilot should reasonability have known that departing VFR into marginal weather at Telluride would probably result into entry into IMC.

The ASRS is not intended to protect deliberate, premeditated actions. I think the Judge made the correct decision in this case. The Judge's decision was in no way arbitrary or capricious.

Note also that even though the pilots filing of the ASRS report didn't qualify for a wavier of sanctions he or she did the right thing in filing the report. Even though it didn't stop the wheels of justice the report itself will help others learn from this mistake.

Editorial: Of all the airports in the world to pull this stunt our hero picked Telluride! I'm amazed he or she only got a 240 day suspension out of it.

 

[avbug]

The standards are spelled out clearly in the ASRS advisory circular, not by 'guys in black suits'. The applicable rule is quoted in footnote 12 of the above mentioned report (emphasis added):

I think that's really the point, here. The russian believes that the program lacks merit and is largely used to promote self protection with no other benifit, as we have seen in the founding of this thread. That line of thought is largely without merit, as we have seen in the responses to this thread, including your own. However, to respond to the quote above, while the standards of the program are spelled out in the program as has been detailed throughout this and other related threads, the ALJ has the discretion to determine if the matter was covered or not. If the ALJ determines that the matter is deliberate or not inadvertant, or intentional, then the report submitted by the actor is not covered by the program, and is fair game for use against the pilot.

The cornerstone of the arguement, and one put forth by the Russian in other threads on this same subject, regards violations of the sanctity of the program. Thee has never been a breach of confidence in the program, despite multiple claims to the contrary by babushka herself. However, should a pilot elect to file a report detailing his actions, and then reveal that report, the report is fair game should the FAA and or the NTSB/ALJ determine that the incident was intentional.

For that reason, a pilot who files the report should save discussion of that filing, or revealing that he or she has filed, until the disposition of the matter has been decided, and deemed inadvertant. Tipping one's hand by submiting the ASRS receipt early in the game only provides the FAA with the precise location to go lookng for more evidence, should the matter be deemed intentional.

Conversely, if the pilot doesn't reveal he has filed the report, even if the matter is determined intentional, the FAA won't know about the report or the submitter, unless the pilot stupidly elects to reveal himself as the author, because the report is sanitized upon receipt.

As I pointed out in some our earlier discussions the only part of the ASRS report that can be used by the FAA is the strip that describes the incident, the one NASA mails back to you and that your lawyer will present if the FAA takes certificate action.

Not true, if the matter is determined to be deliberate, as it was in this case. This opens the entire body of the report to use, as it's no longer protected.

In this case the identification strip (and only the strip) was used to establish the time of the incident (footnote 6).

However, the FAA could have used anything in the report body as well as the ID strip, for discovery in the incident, and as evidence against the pilot, based on the fact that the report was excluded from protection based on the determination of deliberate actions on the part of the pilot. It wasn't necessary in this case as the FAA has more than ample evidence against the pilot, including eyewhitness reports from a passenger on the Baron and the Captain in the Great Lakes aircraft, such that the body of the report would have weighed as far lesser evidence, and the pilot himself provided self-incriminating testimony...to say nothing of the fact that his own arguements and case were very, very, weak.

Note also that even though the pilots filing of the ASRS report didn't qualify for a wavier of sanctions he or she did the right thing in filing the report. Even though it didn't stop the wheels of justice the report itself will help others learn from this mistake.

In the larger, humanitarian sense, yes. However, on a personal level, all the pilot did was open the door wider to hang himself.

What this does show, however, is that the concept that the program is all about self-protection is a fallacy; it's not. It's about discovery of safety related issues, which is why it's still a highly useful, valueable program...contrary to the beliefs of babushka and her ten year old studies.

 

[JimNtexas]

" Not true, if the matter is determined to be deliberate, as it was in this case. This opens the entire body of the report to use, as it's no longer protected."

This is a rare case indeed. Avbug is completely wrong on this point. The report itself is both protected by law and 'de-identified' by NASA to ensure that it is not physically possible to link a strip with the body of a report.

From the NASA ASRS website (emphasis added):

[FONT=Arial, Helvetica, sans-serif]4. NASA RESPONSIBILITIES[/FONT]

1. NASA ASRS provides for the receipt, analysis, and de-identification of aviation safety reports; in addition, periodic reports of findings obtained through the reporting program are published and distributed to the public, the aviation community, and the FAA.
2. A NASA ASRS Advisory Subcommittee, composed of representatives from the aviation community, including the Department of Defense, NASA, and FAA, advises NASA on the conduct of the ASRS. The subcommittee conducts periodic meetings to evaluate and ensure the effectiveness of the reporting system.

[FONT=Arial, Helvetica, sans-serif]5. PROHIBITION AGAINST THE USE OF REPORTS FOR ENFORCEMENT PURPOSES[/FONT]

1. Section 91.25 of the Federal Aviation Regulations (FAR) (14 CFR 91.25) prohibits the use of any reports submitted to NASA under the ASRS (or information derived therefrom) in any disciplinary action, except information concerning criminal offenses or accidents which are covered under paragraphs 7a(l) and 7a(2).
2. When violation of the FAR comes to the attention of the FAA from a source other than a report filed with NASA under the ASRS, appropriate action will be taken. See paragraph 9.
3. The NASA ASRS security system is designed and operated by NASA to ensure confidentiality and anonymity of the reporter and all other parties involved in a reported occurrence or incident The FAA will not seek, and NASA will not release or make available to the FAA, any report filed with NASA under the ASRS or any other information that might reveal the identity of any party involved in an occurrence or incident reported under the ASRS. There has been no breach of confidentiality in more than 20 years of the ASRS under NASA management.

http://asrs.arc.nasa.gov/immunity_nf.htm

On the larger point AvBug is 1000% correct:

What this does show, however, is that the concept that the program is all about self-protection is a fallacy; it's not. It's about discovery of safety related issues, which is why it's still a highly useful, valueable program...contrary to the beliefs of babushka and her ten year old studies.

 

[The_Russian]

I think that's really the point, here. The russian believes that the program lacks merit and is largely used to promote self protection with no other benifit, as we have seen in the founding of this thread.

No I don't. Stop putting words in my mouth. I know the full function and benefits of the program. Along with members of the FAA, I believe that the program is used by some pilots who wrongly protect themselves after deliberate acts of negligence.

The cornerstone of the arguement, and one put forth by the Russian in other threads on this same subject, regards violations of the sanctity of the program. Thee has never been a breach of confidence in the program, despite multiple claims to the contrary by babushka herself. However, should a pilot elect to file a report detailing his actions, and then reveal that report, the report is fair game should the FAA and or the NTSB/ALJ determine that the incident was intentional.

There was a single claim, and it is true. I don't think my buddy was making it up when he and his Captain got fired. Just because you haven't heard about it, doesn't mean it never happened. I guess we are all supposed to consider that the aviation world revolves around you.

Roach,

I have grown quite fond of your method of choosing which quotes to challenge for the "debate" that exists in your tiny little head. And, how you consistantly ignore my points that you know you completely agree on. You are great at twisting words to make me look like a fool because you are too ignorant to see the truth of the matter. You and I both know that the ASRS is a GREAT program. And, that people use the system to their benefit (improperly) after deliberate acts seeking protection from litigation.

Everything I have stated is true concerning this subject. Please stop acting like a child and go back to being a roach under the sink.

What this does show, however, is that the concept that the program is all about self-protection is a fallacy; it's not. It's about discovery of safety related issues, which is why it's still a highly useful, valueable program...contrary to the beliefs of babushka and her ten year old studies.

There you go twisting again! I completely agree and have never stated otherwise. What the program is for, and how it is used by some aviation professionals is another story. Go fu@k your "ten year old studies". At least I have the competence to continue my education. Unlike yourself, who already knows everything and doesn't need to improve. You might think about that right before you lawn dart yourself into the ground. Everyone knows you are a scumbag. Keep it up, you'll get somewhere!

 

[The_Russian]

JimNexas,

Good posts, just don't believe everything avroach says. He'll only tell you what he wants you to hear.

 

[JimNtexas]

"There was a single claim, and it is true. I don't think my buddy was making it up when he and his Captain got fired. Just because you haven't heard about it, doesn't mean it never happened."

So based on this rumor you heard I'm supposed to think NASA is lying when they claim that they dis-identify the reports?

 

[The_Russian]

So based on this rumor you heard I'm supposed to think NASA is lying when they claim that they dis-identify the reports?

Well, it's not a rumor. It really happened. I do not believe that NASA is lying when they tell you the reports are de-identified. Nor do I expect you to think that. However, in this instance, the FAA sought certificate action. Luckily, the company made a bargain to only fire the two pilots, instead of having the FAA revoke their certificates. What I am trying to say is that it CAN happen. Especially if the FAA has the desire to make an example out of someone. Which happened in this case.

Also, if the FAA or NASA feels at any time that the action was deliberate, they can seek certificate action. Even if the action was not. Regulatory litigation is guilty until proven innocent. I am not trying to tell you, I know that you already know. I am just letting you know where I am coming from.

 

[avbug]

This is a rare case indeed. Avbug is completely wrong on this point. The report itself is both protected by law and 'de-identified' by NASA to ensure that it is not physically possible to link a strip with the body of a report.

Wrong. The report is protected only when it hasn't been deliberate or involved an illegal act, and it's protected only insofar as when it's executed under the proper circumstances. The submitter is not offered such protection when the nature and circumstances in the report fall outside the guidelines of the program. Neither is a pilot's identity hidden when he elects to reveal it.

I believe Babushka was all a quiver recently in excitement at the idea that the confidentiality of the program had been breached when the full ASRS report appeared in print in USA today...except that the submitter had provided the report...Babushka was going to fill us in, but didn't...perhaps she can finish the story now.

If one has committed a deliberate act and files the report, it isn't protected. While the report itself is sanitized by NASA before being entered into the database, the report can certainly be located if necessary. If the act is deliberate, the protections of the program do not apply, and it's fair game. In all cases the identification strip is fair game, regardless of the circumstances in the body of the report. A pilot who files a report will do well to determine in advance if he is protected, before revealing that he has filed the report.

The FAA covenants not to pursue action based on acts discovered from the report. If the FAA discovers the nature of the offense from another source, the FAA may proceed with that information. If the act in the report isn't protected by the program, and the FAA learns of the act via the report (such as the pilot foolishly tells the FAA about it, provides the information, and helps them locate the report), then the information in the body of the report may be used against the pilot.

Committing a deliberate act or a criminal act, filing an ASRS report, then revealing the fact is an unwise thing to do, because one has no covenant.

 

[JimNtexas]

Well, it's not a rumor. It really happened. I do not believe that NASA is lying when they tell you the reports are de-identified. Nor do I expect you to think that. However, in this instance, the FAA sought certificate action.

You're not making sense. Of course the FAA can seek certification anytime they decide it's appropriate. Nobody (except maybe you) ever thought that filing a NASA report precluded certificate action. And its clear you didn't understand that the strip (and only the strip) CAN be used in a certificate action if the FAA believes the deviation was intentional.

What the regs and the law says is that the actual report may not ever be used in a certificate action unless an actual crime is involved. Note in the NASA page I link to above that NASA will not de-identify reports that describe a crime. This is the clause that AvBug is confused about. I suspect that the number of reports not de-identified for involving crime can be counted on the fingers of one hand over the decades the program has been in operation.

Avbug, note that if a pilot receives the ID strip back from NASA then that shows that the report has been de-identified. In that case it isn't possible to latter match that strip with the body of a report.

Russian, since the pilots in your example escaped certificate action it sounds to me like the FAA waived certificate action, and I suspect that their ASRS report was a factor in this decision. Their being fired is orthogonal to this discussion.

 

[avbug]

Luckily, the company made a bargain to only fire the two pilots, instead of having the FAA revoke their certificates.

Previously you told us that the FAA forced the company to fire the pilots. The FAA did no such thing. Nor does the FAA make deals to get pilots to quit jobs, or with companies to fire pilots, in exchange for not pursuing administrative action. You're off in la-la land on that one. Again

Regulatory litigation is guilty until proven innocent.

Regulatory litigation? Is that a term you learned in your college class? If so, perhaps you should either pay more attention, or get your money back.

 

[The_Russian]

Your posts now are exactly why I stopped responding to you before. You are in no way capable of having a conversation with a human other than yourself. So, keep talking to yourself and you'll be right all the time. In no way do the points you make relate to the conversation at hand. Your method of "did not! did too!" lacks the maturity to mount a substantial discussion for this little pissing contest in your head. I can't wait to read about you in the paper.

 

[The_Russian]

You're not making sense. Of course the FAA can seek certification anytime they decide it's appropriate. Nobody (except maybe you) ever thought that filing a NASA report precluded certificate action. And its clear you didn't understand that the strip (and only the strip) CAN be used in a certificate action if the FAA believes the deviation was intentional.

What the regs and the law says is that the actual report may not ever be used in a certificate action unless an actual crime is involved. Note in the NASA page I link to above that NASA will not de-identify reports that describe a crime. This is the clause that AvBug is confused about. I suspect that the number of reports not de-identified for involving crime can be counted on the fingers of one hand over the decades the program has been in operation.

Avbug, note that if a pilot receives the ID strip back from NASA then that shows that the report has been de-identified. In that case it isn't possible to latter match that strip with the body of a report.

Actually, I completely agree with you. I think we just misunderstood one another. You are correct about the id-strip too.

Russian, since the pilots in your example escaped certificate action it sounds to me like the FAA waived certificate action, and I suspect that their ASRS report was a factor in this decision. Their being fired is orthogonal to this discussion.

The report was the reason why the company and the FAA found out about the incident. Even though the event was unintentional, the FAA believed that the pilots should be reprimanded. The company was able to bargain down to termination. However, the FAA wanted their certs.