A Twist on Advisory Circular 00-58

Who is covered by the voluntary disclosure program?

The company decided to self-disclose its failure to get on the landing gear problem immediately, because of the obvious seriousness of the problem. The FAA had not detected this discrepancy yet so the company was in compliance with the 00-58 self-disclosure rule in that regard. In the company’s report it also disclosed that the pilot did not make the appropriate log entries concerning the landing gear problem, expecting that he would be protected from any punitive action by the FAA because of the company’s self-disclosure. (The pilot had not filed any Aviation Safety Report, in accord with AC 00-46.)

The FAA accepted the self-disclosure and so did not take any action against the airline or the mechanics involved. However, the first pilot was hit with a certificate action complaint suspending his pilot’s license for 60 days. He alleged as an affirmative defense that the certificate action was barred by the self-disclosure. The Administrative Law Judge (ALJ) at his hearing thought otherwise and imposed the sanction. The pilot appealed to the NTSB. It agreed with the hearing officer. Suspension upheld. He then appealed to the U.S. Court of Appeals for the D.C. Circuit. The Circuit Court reversed the decision.

The ALJ stated that he lacked jurisdiction to hear and consider the pilot’s affirmative defense, and refused his effort to introduce evidence showing how he had complied with the self-disclosure program. Since this was his only defense, the ALJ upheld the suspension of his license. The board upheld the ALJ’s suspension. As an aside, the board said that even if they had jurisdiction to hear the pilot’s self-disclosure affirmative defense he may not have satisfied the specific requirements of the voluntary disclosure rules anyway.

The U.S. District Court ruling
Among other statements, the FAA reiterated the argument …”that 00-58 is unavailable to the pilot because it purportedly “does not relate to the sanctions to be imposed.”

The court said that: … ”we find unreasonable the efforts of the FAA and the Board to attempt to evade AC 00-58 in this way.

… ”We think that a Circular (00-58) that says no sanction will be imposed in a case of voluntary disclosure is quite obviously “related to sanctions”…

The court in its analysis was trying to be kind to the ALJ and the board and at the same time setting down the rules for employee coverage of the voluntary disclosure program and the immunity attached to it.

The FAA obviously does not like the “breadth” and reach of the 00-58 program as far as immunity goes. It thought it had taken sufficient steps in its drafting to limit and narrow its application only to the air carrier or corporate entity. However, this court clearly states that as long as the employees are acting and have acted, in furtherance of the company deficiency (violation) and that causes it (the company) to be in violation of the regulations then they should be granted immunity with the company under the self-disclosure program.

The rules of the self-disclosure program also state: “The voluntary disclosure policy does not apply to the airman or other agent when his apparent violation is the result of actions unrelated to the employing entity’s deficiency.” AC00-58b para. 13(2).

So, yes, there might be some argument that the pilot’s actions in not reporting flight or other irregularities in the logbook were unrelated to the company’s maintenance conduct. So that he was somewhat removed from the carrier’s deficiencies in regard to its maintenance practices. If this argument prevailed he would be denied immunity under any 00-58 filing.

What you should do
If you work for an air carrier or other certificated entity and suspect you might be nailed for a violation, along with your company … get the company chief inspector or director of safety to file an AC 00-58 self-disclosure statement immediately. It has to comply with the requirements outlined in the AC and of course your own violation or deficiency must be tied up with the company’s involvement. In other words your error must be directly related to the company deficiency.

If you can’t tie your violation to a company deficiency at least file a NASA safety report in accord with the AC 00-46 Aviation Safety Report Program. You should seek protection under either or preferably both programs.

But be aware that if you are covered under an acceptable 00-58 self-disclosure program you most likely will have no record of an FAR violation in your personal file at the FAA simply because it is buried in the company self-disclosure and there was no complaint filed against you personally. In essence any attempt at enforcement action would be invalidated by the self-disclosure program.

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