In a recent decision by the NTSB, Administrator v. Austin and McCall, the Board determined that an administrative law judge (“ALJ”) should have admitted into evidence two Aviation Safety Action Program (“ASAP”) reports offered by two airmen in an enforcement hearing. ASAP programs are governed by FAA Advisory Circular 120-66B and typically provide that an airman flying for an air carrier has the option of submitting a voluntary report concerning an incident. Once submitted, the ASAP event review committee (ERC) may review the report, accept the reporting airman into the ASAP, and the FAA then agrees not to initiate a certificate action against the airman based upon the reported incident. AC 120-66B also specifically provides that an ASAP report may not be used for any purpose in an FAA legal enforcement action, unless the report involves criminal activity, substance abuse, controlled substances, or intentional falsification.
In this case, the airmen wanted to have ASAP reports they submitted admitted into evidence at the hearing. However, the ALJ granted the FAA’s motion to exclude the ASAP reports based upon AC 12-66B. The ALJ determined that ASAP reports were not subject to review and that such a review would render ineffectual the memoranda of understanding under which ASAP programs operate. (The elements of an ASAP are set forth in a Memorandum of Understanding (MOU) between the FAA, certificate holder management, and an appropriate third party, such as an employee’s labor organization or their representatives). Interestingly, the ALJ also acknowledged that this issue was one of first impression for the Board and that the Board needed to decide the issue before he would review the ASAP reports.
After a hearing, the ALJ affirmed the FAA’s orders of suspension against the airmen. One of the airman then appealed the ALJ’s decision to the full Board. Not surprisingly, the airman argued, among other things, that the ALJ improperly excluded the ASAP reports.
The Board initially noted that the protection provided by AC 120-66B prohibits the FAA from using ASAP evidence in an enforcement action. However, it then concluded that AC 120-66B “does not prohibit a pilot from waiving this protection to submit his or her own ASAP report into evidence.” As a result, the Board remanded the case back to the ALJ for him to review the ASAP reports and to consider whether the airmen’s filing of their respective ASAP reports protected one or both of them from FAA enforcement action.
It will be interesting to see how the ALJ rules on remand since the Board simply ruled that the ASAP reports were admissible and should be considered by the ALJ. Unfortunately, the Board didn’t provide any guidance on whether the ASAP reports should have precluded the FAA from pursuing enforcement action against the airmen in the first place. I guess we will have to see what the ALJ decides.