Advisory Circular AC 00-58 Self-Disclosure: Legal quagmire or is confession good for the soul?

Advisory Circular AC 00-58 Self-Disclosure Legal quagmire or is confession good for the soul? By Stephen P. Prentice July 1999 Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and...

The qualification issue is always the FAA's ace in the hole because it is such a powerful tool and a convenient way to avoid any forgiveness. Keep in mind that the qualification issue is also present in the Aviation Safety Reporting System (ASRS) that also exempts you from a sanction in a certificate action as well as a civil penalty action. But, there is a big difference. Remember, FAA does not have access to an ASRS report unless you should introduce it in a hearing or otherwise make it available to them. So, before you start confessing under AC 00-58 rules, you have to be sure that a qualification issue is not going to be raised or is present in any way. An air carrier can be grounded, shop secured, or a technician's certificate pulled before you even get a chance to play under the rules of AC 00-58!

Some mandatory reporting excluded
Another little publicized and easily overlooked addition to the revised AC 00-58 is the exclusion of people who are charged with a duty to report failure, malfunctions, and other defects under FAR 21.3. Where they fail to make reports when they are due they can't confess and expect immunity. This has to do with TSO, STC, and type certificate holding manufacturers and is obviously for safety related reasons. So, if you deal with issues under FAR 21.3 and failed to file a required report, don't look to this procedure to help you or your company.

On the other hand, for other violations, the FAA could bring a civil penalty action against a PMA holder and their individual employees for violations of 21.3 among other sections. Self-disclosure would be available for these non-reporting types of apparent violations. One can only specula te why 21.3 was specifically singled out for exclusion.

What about mandatory reporting requirements under FAR 121 and 135? Are they next to be excluded? If 21.3 reporting requirements are excluded, can 121 and 135 reporting requirements be far behind? Or, are they already excluded by inference? (Lurking under the qualification issue?). What's the difference? If a company failed to make these required reports and found this problem, should they confess? The apparent violation could be classified as a qualification issue. Remember, once disclosed, you can't take it back! It might be more prudent to file an ARC 277 and hope for the best.

General rules
Now that we know for whom the procedure applies and what it won't do for you, let's examine the nuts and bolts.

There are five (5) general rules regarding the "confession" program:

1. The certificate holder must notify FAA immediately after finding the violation and before the Agency has found it by any means.
2. The violation must have been inadvertent.
3. No question of qualification is involved.
4. Immediate action is taken upon discovery to correct the problem.
5. The certificate holder must develop a comprehensive fix and a schedule for completion, including a self-audit process to ensure compliance. A full report outlining the process must be prepared and approved by FAA.

Once all the requirements are met, the FAA Principal Inspector then has authority to close the case with a Letter of Correction.

What FAA really wants The whole purpose of the self-audit process is to encourage its use on a regular basis. Under the rules of FAR 121 a continuing analysis and surveillance program is mandated for 121 carries to ferret out problems before they cause an accident. (FAR 121.373). Under the so called CAS system a 121 air carrier is required to prepare reports and advise FAA of its general health in the area of its inspection program, maintenance, and any deficiency found in those programs. This air carrier mandatory audit program is somewhat narrow in scope; however, and generally covers only maintenance and inspection. What is encouraged further is a comprehensive overall continuous audit of the complete airline operation. Once such a program was in place, the overall health of the operation could be examined on a regular monthly basis. This type of program today is voluntary in nature and is governed by AC 00-58 and the Air Carrier Internal Evaluation Program Guide.

Bottom line
What the FAA wants is a self-policing system. FAA believes ATOS — the Air Transportation Oversight System will eventually fill this role. ATOS is a new FAA oversight approach that uses a system safety concept and depends one hundred percent on an in-house self-audit and reporting procedure to discover and report automatically any anomalies detected in the system. Certain large air carriers are already onboard in this system.

Of course, you would think that all this self-regulation might reduce the need for FAA personnel because the carriers and computers would do all the work. Dream onÉthese systems seem to create more and more paper for more and more people to analyze and inspect. ATOS itself requires additional personnel to manage the system.

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