The FAA has released a new AC 120-117 Voluntary Disclosure Reporting Program(“VDRP”) specifically for employer disclosure of 14 C.F.R. Part 120 violations. Some might say “this is a good thing.” Others may say “it’s about time.” And still others may say the VDRP is “better than nothing.” And none of these statements is entirely wrong. But we need to look at the Part 120 VDRP to understand why it may evoke these responses.
As you may know from previous articles, the FAA’s Drug Abatement Division is the office within the FAA responsible for development, implementation, administration, and compliance monitoring (and enforcement) of aviation industry drug and alcohol testing programs. And it has always been very rigid and unforgiving when it comes to violations of the drug and alcohol testing regulations. Even after the FAA issued its new Compliance Philosophy, Drug Abatement didn’t really change how it approached or handled these types of violations. So, when I saw the Part 120 VDRP I was initially encouraged.
The Part 120 VDRP functions much like the VDRP under AC 00-58B with similar policy considerations. The FAA believes an employer’s use of the Part 120 VDRP will “encourage compliance with the regulations, foster safe operating practices, and promote the development of self-audits”, which is consistent with the Compliance Philosophy’s goal of returning an employer to compliance and preventing reoccurrence. In order to qualify for the VDRP, an employer must satisfy the following conditions:
- The employer has notified the FAA of the apparent violation immediately after detecting it and before the FAA has learned of it by other means;
- The apparent violation was inadvertent;
- The apparent violation does not indicate a lack, or reasonable question, of qualification of the employer;
- Immediate action, satisfactory to the FAA, was taken upon discovery to terminate the conduct that resulted in the apparent violation; and
- The employer has developed or is developing a comprehensive fix and schedule of implementation satisfactory to the FAA. The comprehensive fix includes a follow-up self-audit to ensure that the action taken corrects the noncompliance. This self-audit is in addition to any audits conducted by the FAA.
Once the employer completes the requirements of the Part 120 VDRP, the FAA will issue written correspondence to the employer rather than issuing a Notice of Proposed Civil Penalty (which is the FAA’s standard operating procedure for Part 120 violations). However, while this initially sounds like a good thing, the Part 120 VDRP also contains some “gotchas.”
First, the Part 120 VDRP states that “[o]rdinarily, the FAA does not accept a voluntary disclosure if the violation is discovered during, or in anticipation of, an FAA investigation/inspection or in association with an accident or incident.” But this is typically when an employer first discovers a potential Part 120 violation. So this seems to rule out use of the Part 120 VDRP in most of the common situations faced by an employer.
Next, the FAA can refuse to accept the disclosure, or if at any time after it accepts the disclosure the FAA becomes aware that the disclosure did not meet the requirements for acceptance under the VDRP, it can withdraw its previous acceptance. If that happens, the FAA may use the evidence gathered in connection with a Part 120 VDRP disclosure to support an enforcement action (civil penalty or certificate) against the employer. So, by attempting to comply with the Part 120 VDRP an employer could very well be helping the FAA to build its case against the employer.
So, is the Part 120 VDRP a good thing? In very limited circumstances, yes, I believe it can be a good thing for an employer. However, given the FAA’s past attitude and actions in response to Part 120 violations, as well as Drug Abatement’s refusal to fully embrace the Compliance Philosophy, let’s just say I am more than a little skeptical about how/whether the Part 120 VDRP will provide any significant relief for employers.
Employers will need to analyze their circumstances very carefully to determine whether a situation satisfies the Part 120 VDRP criteria. And employers should work with an aviation attorney to evaluate/mitigate any risk associated with a disclosure or the potential for the FAA to refuse to accept a disclosure.
For more information on the procedures for making a Part 120 VDRP disclosure, you should read AC 120-117. Also, for information regarding a general Voluntary Disclosure Reporting Program under AC 00-58B, please refer to my article: Voluntary Disclosure Reporting Program.
If you have questions about or need help with a VDRP disclosure, I would be happy to help.