A Twist on Advisory Circular 00-58

Who is covered by the voluntary disclosure program?

Recently a case came down out of the U.S. Court of Appeals for the D.C. Circuit in Washington that caught my attention. It supported an individual’s right to seek immunity from certificate action or civil penalties under the terms of AC 00-58b. He was successful. Here is the story.

Basically AC 00-58 was written to induce air carriers and other certificated entities to fess up and voluntarily disclose their violations of the FAR to the FAA before they are detected by FAA inspectors. The FAA believed that the open sharing of apparent violations and a cooperative as well as an advisory approach to solving problems would enhance and promote aviation safety. It was designed primarily for air carriers and not individuals, except in narrow circumstances. By complying with the terms of the AC, air carriers and in some cases employees can be protected from any certificate action or other penalty much like the Aviation Safety Reporting Program (ASRP) (AC-46b) supervised by NASA at Moffett Field in California.

We all might recall the recent Southwest Airlines flap over AD compliance on its B737 fleet and how SWA attempted to avoid sanctions by filing a statement and hoped to self-disclose the violations. The terms of 00-58b clearly state however that you must self-disclose before the FAA becomes aware of the violations. In this case of course the FAA was advised directly by whistleblowers who were in fact FAA employees. Thus SWA could not comply with the requirements for immunity from sanction. As I recall, there were no particular actions brought against any individual employees of SWA anyhow, so the issue was not present. The company recently agreed to pay $7.5 million as a civil penalty to close the case. AC 00-58 did not provide any immunity.

The facts
The employee in this case was a pilot flying for the Part 135 air-freight company. A common problem among some operators is the reluctance of some pilots to log mechanical discrepancies in the aircraft log either during flight or at the end of their flight activities for the day. The reason being that if the discrepancies were logged it might result in the aircraft being grounded at a remote station, causing great inconvenience and additional operating costs to get to it and have maintenance fix the problem. Sometimes it was found that the carrier itself may have encouraged this procedure and in others it was confined to a maintenance department practice.

This failure to log discrepancies is usually a clear violation of FAR 135.65b or 121.563 which has similar language: “The pilot in command shall enter or have entered in the aircraft maintenance log each mechanical irregularity that comes to the pilot’s attention during flight time …”

While on a revenue flight the pilot had a problem getting the landing gear down. After landing he told a mechanic about his problem and the mechanic said that it was because of the cold weather. He did not enter anything in the aircraft logbook about the problem nor did he tell any mechanic to log it. On a subsequent flight he had further problems getting the landing gear to extend. He told another mechanic about it and this mechanic also said that it was a cold weather problem. There was no log entry made by this mechanic. But, he did pass on the pilot’s report to maintenance supervision and scheduled the aircraft for an inspection in several days. Still no log entry was made by anyone. Before the inspection of the landing gear another pilot took the plane on a revenue run and had the same difficulty getting the gear down. He landed safely and the inspection found the landing gear was damaged from the start causing the landing gear extension difficulty.

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