Credibility of New Policy Hinges on Enforcement Actions

Air Safety Week, Dec 7, 1998

Information collected as part of Flight Operations Quality Assurance Programs (FOQA) will not be used to prosecute safety violations, according to a new policy announced Dec. 2 by FAA Administrator Jane Garvey. "Important safety advances" have already occurred as a result of a three-year Demonstration Study of FOQA data gathering, Garvey said. FOQA data cover a wide range of safety-related information. The text of the new policy, posted on the Federal Register, declared the FAA will "refrain from using de-identified FOQA information to undertake enforcement actions except in egregious cases." The key word is "except." Egregious cases are those not meeting the criteria in the FAA's February 26, 1997, Advisory Circular No. 00- 46D, which spells out the ground rules for the Aviation Safety Reporting Program. Under this voluntary safety reporting program, individuals who reported violations in the belief they would not be prosecuted have, in some cases, have found themselves on the receiving end of enforcement actions (see ASW, Nov. 9). Harry Riggs, an aviation litigation lawyer and president of the NTSB Bar Association, is skeptical of the new policy. In a telephone interview he said, "I am very suspicious. The FAA has carved out a whole series of exceptions that have scared airmen." "I am fearful that this program will fall into the same trap that the voluntary disclosure programs have succumbed to," he said. >> Riggs, tel. 606/392-2512 <<

Some of the Types of Information Captured by Flight Operations Quality

       Assurance (FOQA) Recordings:
       * Unusual autopilot disconnects
       * GPWS warnings
       * Excessive rotation rates on takeoff
       * Unstabilized approaches
       * Hard landings
       * Compliance with standard operating procedures
       * Identifying out-of-trim airframe configurations
       * Noise abatement compliance
       Source: FAA

Protections Against Prosecution

       "Neither a civil penalty nor certificate suspension will be
imposed if:
       (1) The violation was inadvertent and not deliberate
       (2) The violation did not involve a criminal offense...
       (3) The person has not been found in any prior FAA enforcement
action...for a period of 5 years...
       (4) The person proves that, within 10 days of the violation...a
written report of the...occurrence (was mailed) to NASA under ASRS.

Source: Advisory Circular No. 00-46D, dtd Feb. 26, 1997, Aviation Safety Reporting Program, para. 9c