ValuJet Postscript: give a statement . . . go to jail

NASA reports FAR 91.25
Another example of a voluntary reporting program is the ASRS. Most pilots and technicians are or should be familiar with the Aviation Safety Reporting System. If you think you violated an FAR, you can file your report with the NASA people at Moffett Field and have a qualified exemption from imposition of a penalty. This of course is not usually a report that is available to FAA. Although this voluntary program has protections, it is not without exceptions.

Many assume that the information provided is totally protected from access by FAA. Not true. Sure, for the most part, the information you provide via the ASRS report is not available to the FAA. (FAR 91.25), but, there is an exclusion big enough to drive a truck through. There is a big hole here when one considers the definition of accident and criminal offense. It leaves much room for interpretation. The FAA or NTSB could make use of the data you provide. ASRS says that they only do this on request of FAA or NTSB

Note further that one should be careful not to use or make available to FAA your ASRS report during an NTSB hearing. The information contained in it can be used against you if you introduce it at an enforcement hearing for any reason. You should only reveal the report when and if you are hit with a sanction at the end of the proceeding and not before!

New NPRM protection of voluntarily submitted information
In an attempt to allay some fears, FAA has just published what is purported to be a proposed regulation to protect information that you provide to FAA from public availability. It is complex and designed with more loopholes for release of information than a slab of Swiss cheese. (NPRM Fed. Reg. Vol. 64 No. 142, July 26, 1999).

Like most government attempts at regulation, this piece is far more complicated than necessary. The proposed rule for example states that in some legal actions, such as enforcement actions and criminal prosecutions, information would be released. Whoa! That's good enough for me to clam up! How can anyone who is not a lawyer be expected to know that what they say to FAA is going to get them in trouble? Will it be sent over to a prosecuting agency and result in a criminal action or used against them in a civil damage claim? Is it going to be necessary to retain an army of lawyers to review information and statements before they are released? Did the guys at SabreTech have any idea that they might be criminally prosecuted for their actions and statements? If they did, would they have been cooperative and given statements to assist in the accident investigation? Probably not.

Why not simply say that you want assurance that the information you provide will not be used against you before you assist in any investigation? In other words demand immunity from at least criminal prosecution before giving out any information or statement.

Chilling effect
Criminal indictments will clearly hamper future investigations by NTSB and the collection of safety data by FAA. The homicide squad can't be involved in safety investigations. Investigators will find it increasingly difficult to get candid and complete statements and data from technicians and others in the field. Immunity has to be considered in order to get cooperation. Remember Monica L.? She got immunity.

The NTSB will find it more difficult to come up with a cause for accidents without cooperative statements. Investigative authorities will have to find some way to protect technicians and others from prosecutors when they want information. Otherwise, the only beneficiaries of this mess will be the many lawyers that will be required to counsel and advise in these situations.

ValuJet was a terrible accident, not a crime! The bottom line is that it resulted from joint failures at many levels —the FAA, the airline, and the shop!