violation

[Alamanach]

Russian,

Forgive me for going slow here, but I'm having trouble getting a lock on just where you're coming from. In various places above, you've said:

The NASA form is to be used as a self-disclosure form for pilot error... The ASRS system is also to be used to report aviation safety related issues not related to the pilot or pilot error... (I)t is not a "get out of jail free" card.

I think I can understand that; it's an essentially neutral means for reporting safety issues. Cool. What I can't figure out how to jibe that with this:

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...

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

What does being a sought pilot have to do with anything? If ASRS is not a "get out of jail free card", then why does it matter whether the violating pilot was Almerick07 or not? Why does it matter that he already cleared it up with ATC?

 

[The_Russian]

Russian,

Forgive me for going slow here, but I'm having trouble getting a lock on just where you're coming from. In various places above, you've said:

The NASA form is to be used as a self-disclosure form for pilot error... The ASRS system is also to be used to report aviation safety related issues not related to the pilot or pilot error... (I)t is not a "get out of jail free" card.

I think I can understand that; it's an essentially neutral means for reporting safety issues. Cool. What I can't figure out how to jibe that with this:

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...

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

What does being a sought pilot have to do with anything? If ASRS is not a "get out of jail free card", then why does it matter whether the violating pilot was Almerick07 or not? Why does it matter that he already cleared it up with ATC?

What I am trying to say is that it depends completely on the individual situation as to whether or not to file a report in the ASRS system.

He is the "sought pilot" because ATC has his N-number and name. And, they have accused him of something he said he did not do. After the accusation, the pilot said that he clarified the issue and told the controller that it was not him. If the pilot was Almerick07. And, ATC has made contact with you via the landline. Then, your name and registration have already been recorded.

It does not matter whether or not he cleared the issue up with ATC. If, and I say if, the FAA wanted to persue action they could.

 

[Alamanach]

He is the "sought pilot" because ATC has his N-number and name. And, they have accused him of something he said he did not do. After the accusation, the pilot said that he clarified the issue and told the controller that it was not him. If the pilot was Almerick07. And, ATC has made contact with you via the landline. Then, your name and registration have already been recorded.

Yes, I understand why he is (or isn't) the sought pilot. What I'm asking is why any of this is relevant to whether he files an ASRS report.

 

[The_Russian]

Yes, I understand why he is (or isn't) the sought pilot. What I'm asking is why any of this is relevant to whether he files an ASRS report.

The reason as to why he should not file an ASRS report is based on the fact that he did not violate the sanctity of Class B airspace. The deviator was another pilot. If he files a report to the ASRS, he will be falsly accusing himself of a deviation he did not make.

 

[AAflyer]

Lots of false information above:

5. ASAP programs apply to 121 airlines and provide a method for FAA to penalize the 121 carrier. ASRS can be used by 121 pilots with ASAP programs.

Well as Hertz would say "Not exactly", however not flying for a 121 carrier I would not expect you to be very familiar with the program. The original ASAP program came from AA, I thought I would post some history and facts about it for you and others.

Regards,
AAflyer

WHAT IS IT? HOW DOES IT WORK? WHY SHOULD I SUBMIT A REPORT?
A HISTORICAL PERSPECTIVE
In 1993 140 Federal Aviation Regulations, (FAR) violations were filed against American Airlines pilots. Considering the airline flew in excess of 750,0000 departures that year, it’s a fairly insignificant number (unless you were one of the 140 crewmembers involved). The Federal Aviation Administration, (FAA) is mandated to enforce the FARS. Part of this mandate includes taking the appropriate action with a pilot when it is determined that he/she did in fact violate a particular FAR. Enforcement action may include civil penalty, license suspension or revocation or administrative action.
Captain Scott Griffith, who was the Allied Pilots Association, (APA) safety chairman during this period, proposed the initial ASAP program to American Airlines (AA), the FAA and the APA. The initial document was based on the U.S. Air Altitude Awareness Program (a demonstration program that lasted 18 months). The ASAP program started at American in June 1994.


WHY ASAP?

Remember the FAA is charged with enforcing the FARS. Their ability to go beyond the enforcement issue is limited, i.e., their mandate for corrective action to the pilot has limited options. The main goal of ASAP is to encourage pilots to report any safety-related issues they witness during daily flight operations.. An added incentive for pilots is the administrative closure of FAR violations. If a pilot is involved in a violation of the FARS, and the FAA has independent knowledge of the event, the FAA may file a “pilot deviation” against the pilot-in-command/crew.
If all pilots involved in the event submit ASAP’s and meet certain requirements listed in the ASAP M.O.U. (Memorandum of Understanding), then the event will be closed out with no more than administrative and corrective action.


WHY SHOULD I SUBMIT AN ASAP?

I have a safety concern that in my opinion needs attention.
I made a mistake and I want to notify other crewmembers through ASAP so they do not commit the same error.

I/we may have violated an FAR, altitude or course deviation, etc., and the FAA has notified me of this deviation or I suspect they may have knowledge of the event.


WHO NEEDS TO SUBMIT AN ASAP?
To be able to participate in the program every cockpit crewmember must submit an ASAP within 24 hours of ;(a) when the event occurred or ;(b) when the crewmember was notified of a possible FAR violation. The first crewmember to submit a report satisfies the 24-hour requirement for the whole crew, but again, each crewmember must submit an individual report.


WHAT HAPPENS IF I RECEIVE NOTICE FROM THE FAA OR A CALL FROM AN ERT MEMBER THAT THE FAA HAS FILED A FAR DEVIATION?
If you receive a “Letter of Investigation” from the FAA, you must, first of all, notify your Base Manager or Chief Pilot within 3 calendar days, as stated in FM Pt 1, Section 3 page 9, par 5.10. If you have not submitted an ASAP, it is strongly recommended you complete a report and notify the other crewmembers involved. If you need additional guidance please contact the APA ERT representative at XXX-XXX-XXXX or the AA representative. The Event Review Team (ERT), will make the determination whether or not your report will be accepted into the program. If included, your report will be handled through the ASAP process. If your report is excluded by unanimous consensus of the ERT, then the normal FAA investigation process will take place.


WHAT WILL EXCLUDE MY REPORT FROM ASAP?
Did you commit this event willfully (on purpose)? If the ERT determines the answer is yes, then you will be excluded. If alcohol or illegal drugs are involved, then you will be excluded from ASAP. If the ERT is able to determine that you should have known about this event, but did not submit a report, then you will be excluded from consideration into the program.


“MY S80 WENT OUT OF PERF MODE INTO VERTICAL SPEED AND WE BUSTED OUR ALTITUDE BY 300 FEET. THE ATC CONTROLLER SAID NOTHING AND TCAS GAVE NO TA OR RA. SHOULD I FILE AND ASAP?”
Yes! ATC will not always tell you there was a loss of radar separation and the conflict alert, i.e., the “snitch” went off. Do not use TCAS to determine whether or not you should submit an ASAP. We have all heard controllers issue telephone numbers to other flights “to give us a call when you get on the ground”. This is a no brainer to submit an ASAP but as stated earlier, don’t rely on ATC to determine whether or not to file a report.

WHAT ARE BUILDING BLOCKS OF ASAP?

IT IS A SAFETY PROGRAM
First and foremost, ASAP is a Safety Program. Prior to June 1994, the FAA and more importantly, American Airlines and the Allied Pilots Association would only be made aware of safety concerns through FAA investigations, high level incidents and of course accidents. This is re-active safety vs. pro-active safety. The goal, through your reports is to PREVENT incidents and accidents. ASAP is charged to identify flight safety concerns and achieve corrective action. ASAP is NOT an immunity program or get-out-of- jail-free card for pilots to “end run” the FARS or company investigations. As of March 2002, AA pilots have submitted over 28,000 reports.


CREWMEMBER SOLE SOURCE REPORTING
“The FAA, AA, and APA unconditionally recognize the concept of sole source reporting by providing the incentive for employees to report events that may have otherwise been undisclosed. An event is considered sole source to the FAA when no independent disclosure outside of ASAP identifies the event and all other evidence of the event is discovered by or otherwise predicated on an ASAP report.”


UNANIMOUS CONSENSUS OF THE ERT
“The success of ASAP is built on the trust and cooperation of the ERT in achieving a unanimous consensus on each event that is reported. Under ASAP, the term unanimous consensus is defined as the voluntary agreement of all three ERT representatives. A unanimous consensus means that all members support a particular decision or recommendation by the ERT. The unanimous consensus applies to the ERT decision as to whether a report is accepted into the program as well as corrective actions arising from an event.”

 

[AAflyer]

Part II

CORRECTIVE ACTION
Corrective Action is not disciplinary action. Corrective Action addresses the safety concern generated by the event. Corrective action may take the form of attending an ERT interview, a human factors program review, simulator training or a combination of the above.
“Consistent with the AA policy of “training to proficiency” all training sessions resulting from ASAP recommendations/corrective actions are conducted only on the skills related to the event reported. All training-to-proficiency is considered training rather than checking or evaluation. No proficiency, competency, oral or line checks are performed as a result of an ASAP report or investigation.”

“Reporting employees complying with ERT recommendations will be paid training pay, as appropriate for the time spent meeting with the ERT or otherwise training to proficiency.”


AFTER YOU'VE SENT YOUR REPORT?

I’VE SENT MY REPORT…NOW WHAT?
After you submit your report, the ASAP administrator processes it. “Processing” your report applies an appropriate event code and verifies employee and flight data are correct. Any person’s name or employee number is removed from the body of the report.
<Top>

WHO SEES MY REPORT?
Processed reports are delivered each business day to the ERT members. The ERT members consist of a representative from AA, APA and the FAA. If your report requires additional research and investigation outside of the ERT, a de-identified copy will be sent to the appropriate department within AA. These departments may include dispatch, MNX, loads, your fleet, etc. If your event concerns an ATC facility, one of our ATC specialists will forward a request to investigate your event.


WHAT IF I SUBMIT AN ASAP AND THE OTHER CREWMEMBER(S) CHOOSE NOT TO SUBMIT A REPORT?
If you want to submit a report and other crewmembers do not; let them know that you are going to report!
<Top>

WHAT HAPPENS IF THE FAA FILES A DEVIATION AGAINST THE CREW?
The FAA ERT member receives daily updates on events across the US ATC system. Their updates include “Pilot Deviations”. At the regular ERT meeting, the FAA member will notify the ERT if any deviations have been filed. The ERT will then search existing reports to determine if the crew has reported the event. If no reports exist, the ERT will check the ASAP Hotline to determine if a crewmember has called. If not, a member of the ERT, either AA or APA will call the crew and offer them the opportunity to submit a report. If the crew has already reported no additional contact will be made by the ERT until the “Deviation Package” arrives from the local Flight Standards District Office (FSDO). The deviation package will consist of controller statements, an audiotape, and if an airborne event, a computer generated radar plot. The ERT will review the deviation package to determine if “sufficient evidence” exists. If it does, the ERT will schedule the crew for an interview. The time from the occurrence of the event (deviation) until the crew interview is dependent on two variables: how long it takes the FSDO to forward the package to the ERT and (2) scheduling the crew. The ERT strives to interview all crewmembers on the same day. On rare occasions because of schedule conflicts, crewmembers are scheduled on different days.

OK, lets go back to the crew or crewmember that did not initially report. Who makes the determination if their report is accepted into the program? After the deviation package is received, read and listened to, the ERT will make its determination whether or not the crewmember(s) will be included into ASAP. The basic question asked by the ERT is: “Should the crewmember have known the potential for filing of a deviation by the FAA existed?” If the report is included, then the process continues and the crewmember will be scheduled for an interview. If the crewmember is excluded, then the standard FAA investigation process will begin. Since the inception of the program, less than 50 reports have been excluded where possible FAA action was pending.


WHAT ARE THE OUTCOMES?
WHAT PROCESS DOES THE ERT USE TO EVALUATE MY REPORT?
The ERT uses the flowchart below to determine how each report will be acted upon and closed out with a response to the reporting crewmember and proposed corrective action, if required.
(click here to view the flowchart)

AN ELECTRONIC RESPONSE

An “Electronic Response” (ER) from the ERT is the most typical response sent to crewmembers. If you filed an ASAP concerning an altitude deviation and no violation was filed, then the ERT’s response via an HI6 would indicate no violation was filed and would address the causal factors in your report.


AN FAA LETTER OF NO ACTION

An “FAA Letter of No Action” is sent to a crewmember when “Investigation reveals independent (but not sufficient) evidence of the violation” (see flow chart).
Examples of events that historically have generated an LNA are: departing stations with open write-ups, without the logbook or not insuring provisions of the MEL are implemented. An LNA is sent from the FAA via regular mail to the crewmember. This letter officially closes out the event. If, in the future, the FAA re-opens an investigation for a closed-out event, no additional action will be taken against the crewmember.

Example: You have departed SAN on an origination flight. Enroute to DFW. You discover an open write-up that was written up by the previous crew the day prior and not signed off by Mnx. You notify DFW Mnx of the open item. The next question you may ask is: Should I submit an ASAP and is it a “Sole Source”? Remember that ASAP is a voluntary program, so the decision rests with the crewmember.

If you submit an ASAP and your report (remember each crewmember should submit) is the only knowledge the ERT has of the event, then it is a sole source. The next question the ERT asks is: “Does independent evidence exist?” Yes it does because the logbook will reflect the open item was not signed off in SAN.

At TULE, the FAA reviews aircraft logbooks on a continual basis and has initiated action against crewmembers and mechanics where correct logbook procedures were not followed. So, if you submit a report you may receive an LNA. As far as the FAA’s concerned that’s the end of their involvement and you can continue about your business. If you choose not to submit you’re taking your chances that the FAA won’t review that logbook (good luck!). Why risk it?


AN FAA LETTER OF CORRECTION (LOC)
An FAA “Letter of Correction” (LOC) may be appropriate when an event is non- sole source. That means there is independent knowledge of the event (other than that gained through the crewmember’s report). From the chart; “Is there enough evidence to support the finding of a violation with this individual?” A Letter of Correction will only be issued after the ERT has had the opportunity to interview the crewmembers. As the term implies an LOC will always involve corrective action based on the event. It may be that attending the interview is sufficient corrective action, or some additional training may also be warranted. If simulator time is an option, you will be advised prior to departing your home base so you can plan accordingly.

 

[Alamanach]

If he files a report to the ASRS, he will be falsly accusing himself of a deviation he did not make.

How could this be? You said that an ASRS report can be submitted in cases that do not involve pilot error. It should follow, I would think, that submission of an ASRS does not inherently imply guilt on the part of the reporting pilot. So wouldn't any "accusation" depend entirely on what Almerick07 put in his report?

Let me ask this, it might clear up my confusion: is the ASRS report a safety reporting tool, or an instrument for helping to establish guilt or innocence?

 

[The_Russian]

It is a safety reporting tool.

 

[Alamanach]

It is a safety reporting tool.

So it's about safety rather than blame. Makes sense: it wouldn't be effective if it tried to be about both. But then why are we worried about who committed what deviation?

The reason as to why he should not file an ASRS report is based on the fact that he did not violate the sanctity of Class B airspace. The deviator was another pilot. If he files a report to the ASRS, he will be falsly accusing himself of a deviation he did not make.

Obviously, it will be important for Almerick07 to be accurate in his report; he shouldn't state that he busted Class B when he didn't. But that kind of inaccuracy would be ridiculous. So I don't see why the concerns you raise here are relevant.

Now, it seems to me that there was a genuine safety concern, in that ATC couldn't keep track of which plane was which. Based on what you've said-- that the ASRS reports are for safety issues, that a pilot can submit one whether he made an error or not, that this is a safety reoprting tool, and that it is not a "get out of jail free" card-- I would think an ASRS report would be appropriate.

You say it's not appropriate, but I can't see how you come to that conclusion in light of the other things you've said.

 

[JimNtexas]

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.

Ed, your link worked, and it is the best summary that I've seen.

The bottom line: It is never a bad idea to submit a NASA form except if you intentionally created an unsafe situation.

If the FAA suspends certificate action because you filed the form then you can't use another one for five years.

If you tell the FAA that you used the form and they don't elect to seek certificate action then its no harm, no foul, and you can use the form to avoid sanction for an even that happens the next day.

You should always report incidents where safety was an issue, even if the FAA has no idea the unsafe situation ever arose.