rickair7777

The FAA is proposing changes to the ASAP program. The proposed new AC (AC 120-66C) is open to public comment until 4 Nov 2014.

Flight Standards Service (AFS) ? Draft Advisory Circulars (ACs) Open for Comment (scroll down to AC 120-66C)

At first glance it looks like the FAA is trying to "carve out" areas where ASAP protection will be limited or no longer be available to pilots. Read the new definitions of "Reckless Conduct" and "Risk Controls"...this is not what you think it is.

Basically the FAA intends to identify certain operational issues as "Risk Controlled", which will limit ASAP protection if these issues occur. I suspect this would include hot topics like runway incursions and altitude deviations. They will seek to brand deviations in these "Risk Control" realms as "Reckless Conduct", which seems like clever marketing to make it easier to burn pilots who commit "Reckless Conduct". Kind of like when prosecutors use weak language in anti-terror laws to charge mundane criminals as "terrorists"

My suspicion is that eventually most phases of flight could end up as "Risk Controlled", and therefore almost any pilot error will therefore become "Reckless".

Now I do see their point that in that they don't want to keep giving hall passes for the same deviations again and again with no apparent improvement in statistics...but pilots have an interest in ensuring this is done in a reasonable fashion that will not eliminate the intent and benefit of the current ASAP program.

Also, the new AC includes language which allows the exclusion of reports for repeat violations by the same individual.

Suggest Ya'll take a look...if you're going to comment, might want to talk to your union first if they haven't already put out some word on this.

PurpleToolBox

I believe this will ultimately undermine the intent of this program; to allow employees to self report so as the situations can be studied to learn why and how they happen and how they can be prevented.

By further pushing the line to certificate action, people are going to be less likely to self report; therefore, the situations will not be fully studied and appropriate safety measures learned.

paul salerno

AC120-66C was written to work within the framework of SMS. In this new 'SMS paradigm' and view of errors / violations, 1) FARs are considered risk controls, 2) company policies and procedures are also risk controls, and 3) a 'violation' includes intentional disregard for not just FARs, but also for company policies / procedures.

This is where the term reckless conduct gets its teeth - under AC120-66C, FAA considers any failure to observe or follow a company risk control to be 'reckless conduct' (this means not following ANY company policy or procedure, even if the policy or procedure is poorly written, difficult to follow, or doesn't work!!). So enforcement incentives (meaning no violations) will not apply to an unintentional violation of FARs if it is determined that company policies / procedures were not followed.

This will no doubt significantly increase the number of reports that are denied submission into the company's ASAP, and (I agree with rickair7777 and PurpleToolBox) cause people to be less likely to report.

Perhaps there's a better way...

Several years ago, a US District Court decision favored a pilot whom FAA attempted to violate after his company filed a Voluntary Disclosure Report (VDRP). The VDRP protects the company from civil penalties and certificate action, and the court held that this protection should include the pilot. A Twist on Advisory Circular 00-58 | AviationPros.com

The best thing about this scenario is that FAA's administrative action gets recorded on the operator - not the pilot - so record searches for enforcement / administrative action will show the name of the operator (even though the pilot's name does still exist within the record, it's buried in the record) and the LOC or other administrative action will NOT show the pilot's name nor cert. number).

If I were a certificate holder today (I was for almost 20 years) I would encourage my pilots and maint. techs. to report into the company's SMS, and designate apparent violations for submission to ASRS and VDRP. Then help / support the airmen with ASRS submissions to document in the ASRS COMPANY DEFICIENCIES that contributed to the violation, as well as in the company's VDRP. The SMS investigation process and VDRP's comprehensive fix would further document company deficiencies that contributed to the violation, thereby protecting my certificated airmen and the company at the same time.

cardiomd

Interesting stuff and thanks for the info Paul.

Seems like this would cause the company to lean on pilots to also not file ASAPs (who wants to look bad?) which has the same chilling effect.

METO Guido

You raise interesting points, thank you. I will attend a CMO meeting next week to discuss progress on an SMS approval. It’s possible I’ll have a chance to bring some of this up.

If a pilot self-reports doing 300kts at 8000’ due to what is essentially a loss of situational awareness, I don’t foresee where it gets denied under the proposed ASAP agreement changes. But let’s say it doesn’t for some reason and the submission is denied acceptance, still no harm no fowl provided discovery isn’t gained from another source. Companies are very adverse to VDRPs. Given the choice, their focus quickly becomes what these cowboys did in direct conflict with Company safety measures and risk controls.

The current Gap Analysis Tool doesn’t adequately address merging of ASAP into SMS, in my view. So I agree, the Feds move to revise owes much to this awareness. I would encourage any crewmember with concern for their accountability in the face of a possible violation to comment on these changes in the short period remaining.

METO Guido

From what little I could gather, while revision to current ASAP language (MOU) is clearly anticipated, no one I spoke to including a DC manager would offer a guess as to when. 2016,17? Maybe not. I did learn there has already been a revision to FAA compliance policy as defined under 8900.1, effective October 1st.

paul salerno

"...Companies are very adverse to VDRPs."

Depending on the principal inspectors, the VDRP my company used was very successful, and really works well with SMS. We would discover (inadvertent, unintentional) violations from internal pilot reports, or sometimes records reviews, and disclose them to FAA with a 'comprehensive fix'.

We improved our processes, and never once received a civil penalty or certificate action; both the company and the pilots involved.

And if FAA issued a Letter of Correction (which they sometimes did) it was in the name of the certificate holder; NOT the name of the pilot! This is the real downside of ASAP, is that the LOC is on the pilot's record; not so with VDRP.

JamesNoBrakes

If there's a warning notice issued to the pilot under ASAP, it is not searchable/included in the pilots normal record. ASAP protects it from PRIA and FOIA.

That said, there may be big changes to ASAP coming, since the new compliance philosophy kind of makes the necessity for a non-punitive system redundant. No plans that I know of yet and I would highly advise everyone to use ASAP to the fullest extent, but even routine violations that would have gotten regular warning notices or small civil penalties are now being handled without anything on the pilot's record.

TheSchwartz

Has anyone heard the status of this thing?
Last we heard was an update from AFS-230 where the inspector (one who has at least some level of authorship of 66C) said it received more comments than any other draft AC in FAA history. The meeting ended abruptly when one of our union leaders said he'd be speaking to an empty room if it went forward as it was written.
I pasted in a few of the troublesome ares of the draft AC and comments I submitted to the FAA. There are more...

Some of our major problems with it:
3.r. Reckless Conduct. Exists when an individual (1) deviates (2) from established risk controls (3) in gross disregard for safety. Risk controls are established by the FAA through regulations (i.e., 14 CFR) and by company policies implemented by the entity. Thus, risk controls can be both regulatory and non-regulatory. Established risk controls put the individual on notice of both the kinds of conduct and scenarios that increase the probability of harm, as well as the procedures necessary to eliminate hazards or to mitigate their effects by reducing the severity and/or likelihood of harm associated with those hazards. Thus, where an individual knows—through established risk controls—how to eliminate or reduce a risk of harm but nonetheless acts or fails to act in a manner consistent with the established risk control, then that individual has deviated from the established risk control. “Reckless conduct” occurs when that deviation is in gross disregard for safety. Under a risk assessment matrix, “gross disregard for safety” would be indicated by an increase in likelihood and/or severity of consequences to a high level (unacceptable risk). An intentional deviation from an established risk control with the intent to reduce risk (i.e., emergency or abnormal situations) does not constitute “Reckless Conduct."
Note: In both civil and criminal liability contexts, reckless conduct involves a person acting with knowledge that there is a risk that harm would probably result from the conduct and, foreseeing the harm, nevertheless taking the risk. It differs from negligence, where negligence is the failure to recognize a risk that a reasonable person would have recognized.
My Comment: This definition is acceptable until it discusses the risk matrix (“Under a risk assessment matrix…”). From that point on, the definition becomes seriously flawed. Increased likelihood and/or severity do not necessarily equal reckless conduct or vice versa.

3.w. Unacceptable Risk. Refers to combinations of severity and likelihood that cause risk to fall into the red area of the risk matrix, thus indicating a gross disregard for safety for purposes of determining reckless conduct, as described in subparagraph 3.r.
My Comment: This definition, while technically correct at first, is awkward in the definitions. It states that unacceptable risk indicates gross disregard for safety which is completely illogical and incorrect. I would suggest replacing this term with a definition of Risk Acceptance which would contain Acceptable, Acceptable with Mitigation, and Unacceptable risk definitions consistent with AC 120-92A Appendix 3 2.a.(1), (2), and (3).

6.a.(5)a. Participants should employ the guidance on the Safety Management Systems (SMS) in the most recently effective edition of AC 120-92, Safety Management Systems for Aviation Service Providers. In order to be used in the ASAP to determine acceptance of a report, the definitions of each level of severity and likelihood should be specified in terms that are realistic for that environment, and the resulting safety risk matrix must be acceptable to all parties to the ASAP MOU.
My Comment: First, this part of the AC should elaborate more on the conduct of a risk assessment and use of a matrix. Once again, the guidance from AC 120-92A Appendix 3 2.a would fill in the blanks and maintain consistency. Second, Mr. Rob Burke stated at InfoShare that the risk assessment process was not intended to be used for report acceptance (which is 180 degrees different from what the draft AC says). The intent was to have risk assessed during report processing according to him. This should be stated clearly. Third, the AC should clearly state the intent of performing the risk assessment (ie assessing risk of the root cause of the event or the outcome of the event). Part of the intent of the risk assessment should be what is required of the ERC if the risk assessment comes out yellow or red.

8.g. Independent Investigations. The FAA may use the knowledge of the event disclosed in an ASAP report to conduct such independent investigation of an apparent violation(s) as the FAA deems appropriate.
Note: The certificate holder should not use any information obtained through the ASAP to initiate or support disciplinary action outside of the ASAP, with the exception of those reports excluded from the ASAP. Excluded ASAP reports may be due to the appearance of possible criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification by the reporting employee.
My Comment: Should this remain in the final AC, this one sentence will destroy ASAP by removing any incentive for an airman to report safety issues or for a certificate holder to encourage its airmen to do so. Additionally, the note appears to restrict the carriers from doing the same.

All of that said, ASAP is an example of the FAA & industry getting it right. It is a great program which I believe is largely responsible for the lack of accidents among US carriers since it really took hold in the early part of this century.

METO Guido

Let us know please, when or if, they reply. Not ALPA, don’t receive the mailings, something I miss. At first, I thought maybe the SMS initiatives would bring some clarity. Now I’m not so sure. Trying to follow the comments, looking at the faces while attending a few of these road shows, blank expressions, no one knows. SMS will drive the bus they like to say…steering for the twilight zone right now if you ask me.