violation

[Lear Wanna Be]

I am still unclear on this.

"[FONT=Arial, Helvetica, sans-serif]The waiver of penalties is subject to the following limitations: (A) the alleged violation must be inadvertent and not deliberate, (B) it must not reveal an event subject to Section 609 of the Federal Aviation Act, (C) the reporter must not have been found guilty of a violation of the FAR's or the Federal Aviation Act during the preceding five years, and (D) the ASRS report must be submitted within 10 days of the event."[/FONT]

[FONT=Arial, Helvetica, sans-serif]Where is everyone getting that using the report to protect the certificate is limited to every five years?[/FONT]

Uh, the answer is "C". This doesn't mean you can't file one everyday if you want. It means that you will only be able to present it once in five years to the FAA attorney or NTSB judge if they find you in violation. If you are found not guilty or it is over turned at appeal, you also get your "get out of jail almost free" card back.

 

[AC560]

If you are found not guilty or it is over turned at appeal, you also get your "get out of jail almost free" card back.

That isn't what is being said though. People are saying if you use the report and are found not guilty you can't use it again for five years and that you should choose to use it or not. Avbug said "If he doesn't use the report to protect his certificate, then it doesn't compromise him for years to come." as did Pilotyip. Using the report doesn't seem relevant in anyway only being found guilty. Thus I don't understand why when confronted you would ever not use it.

 

[Lear Wanna Be]

Well, what (c) seems to be saying is that if you go out and are found guilty of a violation within the past 5 years, then it doesn't really matter whether you used a NASA form or not. You will not be able to use it for the purposes of deferring the penalty.

Now, I don't feel like going back and re-reading everything, perhaps you misunderstood or perhaps they do. First, you have to understand the process. You file the NASA form and unless you did something illegal or blatant, the FAA will never hear about it. Now, you do something and you are in trouble with the feds. You will get a letter of investigation via certified mail, you are dealing with the FAA inspector at this point. You will have a chance to talk with him and he will probably want you to put a statement down in writing and mail it or fax it to him (careful, use an attorney to do this). Now the inspector was a nice guy and you are like sweet, that was easy. A month or two later you get a certified letter from FAA legal. You will be told that you can come to the office for a meeting, or have a phone conference, and I think one or two other options. Again, get an attorney for this because your goose is about cooked at this point. Anyway, you get through that stage and the next thing you know you are getting another certified letter saying that you have been found in violation of blah, blah, blah and that there will be a 60 day (or whatever) suspension of your pilot privileges. The letter will give you a time frame to respond (I think 30 calender days). It will have a place where you can mark that you want to appeal to the NTSB judge, a place that asks if you filed a NASA report, and perhaps just a place that you say OK I will take it case over (or something to that effect). Now up until this point, the FAA has no official knowledge of whether you exercised your right to file a NASA form. If you are going to appeal, I would just hold that little ace up your sleeve until you go to hearing with the NTSB judge. Now all else fails your appeal is denied and you don't want to go any further, then pull that ace out and keep flying.

So I think where you might be confused or perhaps other here, is how many times you can file a report. You can file them everyday...20 a day, that is your prerogative. One will protect you right up until you have been found in violation of something. Then you have to stay clean for 5 years before you can use it for purposes of deferring the penalty. That doesn't mean you can't file one in order to help bring a safety matter to the attention of the NASA and ultimetly the FAA. Anyway, as you probably know, 5 years is the expungement time for violations. After that, your record should be clean.

 

[AC560]

So I think where you might be confused or perhaps other here, is how many times you can file a report.

Where I am confused is I read it the same way as you which is no violation in the past five years, the report works for you (regardless of whether or not you used a report in defense of a charge which you were subsequently found not guilty of).

What Avbug and Pilotyip are saying is if you get called to the FAA, pull the strip on them, and subsequently get found to be not guilty the pulling of the report to your defense (even though you were found guilty of nothing) limits your ability to gain protection from a report for the next five years.

 

[avbug]

What Avbug and Pilotyip are saying is if you get called to the FAA, pull the strip on them, and subsequently get found to be not guilty the pulling of the report to your defense (even though you were found guilty of nothing) limits your ability to gain protection from a report for the next five years.

avbug didn't say that. Read the thread again.

 

[AC560]

avbug didn't say that. Read the thread again.

What I read was "Lo and behold! The FAA opts for enforcement action. He now has a choice. He can reveal the report, prove that it was sent within ten days, and accept the suspension but keep his certificate and keep flying...or he can keep the report confidential, and fight the enforcement action. His choice. If he doesn't use the report to protect his certificate, then it doesn't compromise him for years to come. In fact, he can use another report to defend himself tomorrow. or the next day, or the next, if he likes. As much as he likes. There is NOTHING about sending in the report which prevents him from using another report later, the next day, three months from now, or a year later. Nothing."

You say if he doesn't use the report to protect is certificate then it doesn't compromise him for years to come. Using or not using the certificate is not relevant the only thing that is taken into account is did you have a violation within the past five years. Whether or not you used a NASA report doesn't seem relevant to me.

Where you trying to say that in order to use the certificate you have to admit guilt as opposed to fighting it?

 

[midlifeflyer]

That isn't what is being said though. People are saying if you use the report and are found not guilty you can't use it again for five years and that you should choose to use it or not. Avbug said "If he doesn't use the report to protect his certificate, then it doesn't compromise him for years to come." as did Pilotyip. Using the report doesn't seem relevant in anyway only being found guilty. Thus I don't understand why when confronted you would ever not use it.

Maybe this is your confusion: using the report =doesn't= make you found "not guilty." All it does is waive the penalty.

If you pull the "ASRS Defense" at the informal conference and the FAA decides to drop the whole thing because you're a good coopertaive guy, you haven't really used the card as your ace in the hole. The FAA dicided not to press the matter. There's no violation and you cans use the defense again in the future.

But the scenario in which the report is used as a defense, you have accepted the violation and use the ASRS report to avoid the penalty. Now you have the 5-year issue.

If you pull the report out early, depending on the case, there is sometimes an incentive for the FAA to prosecute to get it on your record. So, if you can work out a no-prosecution without the card being mentioned it may be better to do it that way.

Whether or not there is an advantage to holding back the report will be very case-dependent.

 

[Almerick07]

so should i hold the report back at first if i get a letter?

 

[EdAtTheAirport]

Everybody here needs to read some Phillip Kolczynski. He is a pretty big shot aviation lawyer in California. Here's a link to his article Protecting Yourself Against FAA Enforcement Actions. Click --> http://www.aviationlawcorp.com/content/faasanction.html. Well ok, it doesn't work as a link; you'll have to cut and paste.

 

[midlifeflyer]

so should i hold the report back at first if i get a letter?

You should first speak to an aviation attorney if you get a letter (maybe before if you smell it coming).

It's not a rule. It's a defensive strategy or tactic. The bottom line (short of an outright win at trial or before the NTSB) when facing a potential certificate action is to (1) convince the FAA to do something other than pursue a certificate action and, failing that, to (2) minimize or avoid the penalty. Like any strategy or tactic, it's use needs to fit the circumstances. If you can do either without the ASRS defense, the idea is to try that first. Helping you make that kind of choice is one of the things lawyers are for*.

Remember, on (1), the ASRS is really only evidence of a cooperative attitude. If in addition to that runway incursion, you told the Inspector to "F-off," well, I don't think that "Nyaa, nayy, I filed an NASA report" is going to do much to convince the inspector (or the FAA lawyer handling the informal conference) to exercise her discretion in your favor. On the other hand, a real cooperative attitude and a reasonable explanation of the circumstances might get that pass immediately without ASRS even being mentioned. (Yep, that's a strategy/tactic also)

There is also the question of far to let the matter go before pulling out the hole card. So far anyway, the only NTSB case I'm aware of on the timing issue is that the ASRS Defense needs to be raised no later than in response to the certificate action complaint once it is filed. But before that, again, it's a matter of case evaluation, strategy and tactics.

******************************
*What lawyers are for. Here's an example of the difference: The issue is the victim's identification of the defendant in a criminal assault case.

Defense Lawyer: "Isn't it true that you were reading the newspaper and you were hit from behind?"

Defendant representing himself, "How could you identify me? You can't Identify me! You were looking the other way when I hit you!" (True real-life cross exam question)

 

[Alamanach]

Russian, on page 1 of this thread, you wrote:

The NASA form is to be used as a self-disclosure form for pilot error. If the pilot has made no error, then the pilot should not fill out a NASA form.

And on page 4 you wrote:

It is not for pilot error. It is for safety related issues, much like a safety hotline.

These statements appear to be contradictory. Can you clarify?

 

[The_Russian]

A pilot should self-disclose for a safety related pilot error only. Self-disclosing for deliberate pilot error is not allowed, and can lead to certificate action.

 

[Alamanach]

OK, that makes sense. One other question-- avbug's opinion seems to be that these reports can (and should) be used to report safety issues of any kind, even things that the pilot might not have had much direct involvement with. That's a lot broader than a safety-related pilot error, so presumably you disagree. If I identify a safety issue that doesn't involve any error on my part, how should I go about bringing it to people's attention?

 

[AC560]

Self-disclosing for deliberate pilot error is not allowed, and can lead to certificate action.

I think you should stop while you are behind. The only reports which they can refer to an outside source without de-identification are those which contain criminal activities (referred to DOJ) or accidents (referred to NTSB and FAA). Any other release will be de-identified prior to release.

 

[The_Russian]

OK, that makes sense. One other question-- avbug's opinion seems to be that these reports can (and should) be used to report safety issues of any kind, even things that the pilot might not have had much direct involvement with. That's a lot broader than a safety-related pilot error, so presumably you disagree. If I identify a safety issue that doesn't involve any error on my part, how should I go about bringing it to people's attention?

Actually, I totally agree. The ASRS system is also to be used to report aviation safety related issues not related to the pilot or pilot error.

All I am saying is that it is not a "get out of jail free" card. And, that certificate action can be taken if criminal neglect is found.

 

[The_Russian]

I think you should stop while you are behind. The only reports which they can refer to an outside source without de-identification are those which contain criminal activities (referred to DOJ) or accidents (referred to NTSB and FAA). Any other release will be de-identified prior to release.

You don't think the criminal neglect can be found concerning an issue of deliberate pilot error?

I am not sure that you are reading what I am writing. Nor do I think that you se the loophole in the program.

 

[AC560]

I am not sure that you are reading what I am writing.

No I am reading exactly what you have written "Self-disclosing for deliberate pilot error is not allowed, and can lead to certificate action." That is factually untrue and statements like that cause people to mistrust the program.

I gave you the two instances where your report and identity can be released (and who it can be released to).

 

[Alamanach]

...The ASRS system is also to be used to report aviation safety related issues not related to the pilot or pilot error.

All I am saying is that it is not a "get out of jail free" card. And, that certificate action can be taken if criminal neglect is found.

OK, so the ASRS system is used to report safety issues, pilot error or no. I'm with you there, but I lose you when we consider this particular case. In the post that started this thread, we had a pilot get into a situation where ATC couldn't distinguish between him and some other plane. I'm just a lowly PPL, but that sounds like a safety issue to me.

Why, then, shouldn't the pilot submit an ASRS? The 'criminal neglect' thing can't be a problem; he hadn't actually commited a violation.

 

[The_Russian]

No I am reading exactly what you have written "Self-disclosing for deliberate pilot error is not allowed, and can lead to certificate action." That is factually untrue and statements like that cause people to mistrust the program.

I gave you the two instances where your report and identity can be released (and who it can be released to).

Deliberate:
Main Entry: 2de·lib·er·ate
Pronunciation: di-'li-b&-r&t, -'lib-r&t
Function: adjective
Etymology: Middle English, from Latin deliberatus, past participle of deliberare to consider carefully, perhaps alteration of *delibrare, from de- + libra scale, pound
1 : characterized by or resulting from careful and thorough consideration <a deliberate decision>
2 : characterized by awareness of the consequences <deliberate falsehood>
3 : slow, unhurried, and steady as though allowing time for decision on each individual action involved <a deliberate pace>

 

[The_Russian]

OK, so the ASRS system is used to report safety issues, pilot error or no. I'm with you there, but I lose you when we consider this particular case. In the post that started this thread, we had a pilot get into a situation where ATC couldn't distinguish between him and some other plane. I'm just a lowly PPL, but that sounds like a safety issue to me.

Why, then, shouldn't the pilot submit an ASRS? The 'criminal neglect' thing can't be a problem; he hadn't actually commited a violation.

I believe that the pilot should not file the ASRS report due to the fact that he knows he was not the sought pilot. If he did not make a deviation due to safety, then he should not file. He knows, and explained to the controlling agency, that it was not him. If it truly was him, and he was sure about it. A filing of a ASRS report would be applicable due to an accidental deviation into class B.

Now, say he caused a major traffic deviation. The FAA could find criminal neglect on the pilot if the passengers on the deviating plane were injured in the manuever. And, the ASRS system will not be able to protect him. Of course, this is all hypothetical. But, it could happen.

If the FAA would like to press the issue further, he would recieve a letter of investigation with or without filing to the ASRS system. If the FAA can prove that the said pilot knew better, the FAA can seek certificate action under criminal charges.

On another note, his filing fill falsify the statistics. This would be due to a deviation filed that was not committed.