An individual mechanic’s attempt to avoid enforcement action under the Voluntary Disclosure Reporting Program (“VDRP”) was recently rejected by the NTSB in Administrator v. Liotta. In response to the FAA’s allegations that the mechanic violated FAR 43.13(a), which the mechanic did not deny, the mechanic argued that his employer’s report of the violations pursuant to the VDRP immunized him from enforcement action. After the ALJ issued his decision affirming the FAA’s order of suspension, the mechanic appealed to the full Board, repeating his arguments that the FAA should not have pursued enforcement action against him based upon his employer’s VDRP report.
In rejecting the mechanic’s arguments, the Board first noted that it cannot review the FAA’s election to pursue an action against a particular individual, and not against others who may have played a role in the alleged violation. It then observed that the VDRP does not typically apply to individuals, but rather to entities, companies or carriers. However, the VDRP may provide immunity to employees or agents of an employing covered entity: (1) when the violation involves a deficiency of the employer’s practices or procedures; (2) when the individual inadvertently violates FAA regulations as a direct result of that deficiency; (3) when the individual or other agent immediately reports the violation to the employer; and (4) when the employer immediately notifies the FAA of the violation. Although the mechanic had the burden to show that all four requirements were met, unfortunately, the mechanic could only show that (4) was met.
The Board also observed that immunity may have been available to the mechanic pursuant to the Aviation Safety Reporting Program (“ASRP”). But, since the mechanic did not file the ASRP form, this immunity was not available to him either. The Board found that the mechanic’s FAR violations were not a result, either directly or indirectly, of a deficiency in his employer’s maintenance policies, if deficiencies actually existed. It went on to note that, if it were to conclude that the employer had no deficiency at all, the employer could not protect its employees by claiming responsibility for some deficiency in an effort to bring an employee under its VDRP “immunity umbrella.”
The moral of the story: File those ASRP forms, often! It is quite possible that a timely ASRP filing could have waived the sanction against the mechanic in this case. However, you can’t take advantage of the program if you don’t file. For more information on the VDRP, you can read my article on the topic here. For more information on the ASRP, you can read more here.
