As you may know, the FAA publishes Advisory Circular 00-46 to provide guidance for compliance with the Aviation Safety Reporting Program (“ASRP”). Under the ASRP, 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 the time required, 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.
The sanction waiver will be available provided that (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 conduct of the airman giving rise to the violation did not exhibit incompetence or lack of qualification.
Recently the FAA updated this advisory circular to Advisory Circular 00-46E. The revised advisory circular changes the language governing when an ASRP report must be filed. Under earlier guidance, the report had to be filed within 10 days of the incident or occurrence. However, under the revised advisory circular to take advantage of the program a person must prove “that, within 10 days after the violation, or the date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA.”
This new language appears to be less restrictive and will hopefully extend the availability of the program to factual situations that, by their nature, were previously precluded from participation (e.g. discovery of a mechanic’s error well after the 10 day period has ended). However, it is unclear how strict the FAA or the NTSB will interpret the new language. Although I am cautiously optimistic, we’ll have to wait and see.
