Advisory Circular
Subject: Voluntary Disclosure Reporting Program Date: 9/8/06 Initiated by: AFS-230 AC No: 00-58A
1. PURPOSE.
a. This advisory circular (AC) provides information and guidance material that may be used by a certificate holder, qualified fractional ownership programs (as defined in paragraph 5e of this AC), or a Production Approval Holder (PAH) operating under Title 14 of the Code of Federal Regulations (14 CFR) when voluntarily disclosing to the Federal Aviation Administration (FAA) apparent violations of those FAA regulations listed in paragraph 3. The procedures and practices outlined in this AC can be applied to the maintenance, flight operations, anti-drug and alcohol misuse prevention programs, and to the manufacturing functions of the PAH’s organization. The procedures and practices outlined in this AC cannot be applied to those persons who are required to report failures, malfunctions, and defects under 14 CFR part 21, section 21.3 and who do not make those reports in the timeframe required by the regulations.
b. Certificate holders, qualified fractional ownership programs, and PAHs are encouraged, but not required, to develop internal evaluation programs that continually monitor company policies and procedures and ensure that the highest level of safety and security compliance is maintained. They may voluntarily disclose apparent violations of 14 CFR covered by this program in accordance with the procedures in this AC even though an internal evaluation program has not been established. Guidance on internal evaluation programs is contained in the current edition of AC 120-59, Air Carrier Internal Evaluation Programs.
2. CANCELLATION. AC 00-58, Voluntary Disclosure Reporting Program, dated May 4, 1998, is canceled.
3. RELATED REGULATIONS. Title 14 CFR parts 21, 119, 121, 125, 129, 133, 135, 137, 141, 142, 145, 147 and, for qualified fractional ownership programs operating under part 91, subpart K, those portions of part 91 pertaining directly to the duties and responsibilities of the program manager, as defined in part 91, subpart K or management specifications (MSpecs).
a. Voluntary disclosure of violations of Title 49 of the Code of Federal Regulations (49 CFR) part 175 (HAZMAT) should be accomplished in accordance with AC 121-37, Voluntary Disclosure Reporting Program—Hazardous Materials.
b. Except as specified in paragraph 14 of this AC, the Voluntary Disclosure Reporting Program does not apply to violations by individual airmen.
4. BACKGROUND. Civil penalties, under the FAA’s enforcement program, have always been considered a means to promote compliance with the FAA’s regulations, not an end in themselves. In addition to the deterrence achieved by the appropriate use of civil penalties, the public interest is also served by positive incentives to promote and achieve compliance. Indeed, the FAA believes that aviation safety is well served by incentives for certificate holders, qualified fractional ownership programs, and PAHs to identify and correct their own instances of noncompliance and to invest more resources in efforts to preclude their recurrence. The FAA’s policy of forgoing civil penalty actions when one of these entities detects violations, promptly discloses the violations to the FAA, and takes prompt corrective action to ensure that the same or similar violations do not recur is designed to encourage compliance with the FAA’s regulations, foster safe operating practices, and promote the development of internal evaluation programs.
5. KEY TERMS. The following key terms and phrases are defined to ensure a standard interpretation and understanding of the FAA’s voluntary disclosure policy.
a. Evidence. For the purpose of voluntary disclosure, evidence generally should be in the form of written documentation or reports that support a certificate holder’s, qualified fractional ownership program’s, or PAH’s analysis of the disclosed apparent violation and the resulting elements of the proposed comprehensive fix. Evidence generally comes from the following four elements:
(1) Documents or manuals reviewed.
(2) Equipment examined.
(3) Activities observed.
(4) Interview data.
b. Comprehensive Fix.
(1) A comprehensive fix is an action, or actions, proposed by the certificate holder, qualified fractional ownership program, or PAH and accepted by the principal inspector (PI) (see definition in paragraph 5d) to preclude recurrence of the apparent violation that has been voluntarily disclosed under this program.
(2) A schedule of the dates and events encompassed by the comprehensive fix must be established and included in a letter of correction.
c. Satisfactory Fix. A satisfactory fix is a comprehensive fix, in which all corrective measures have been completed on schedule and are satisfactory to the FAA.
d. PI. Under the Voluntary Disclosure Reporting Program (VDRP), PI refers to the appropriate maintenance, avionics, operations inspector, or other designated FAA official of the program office responsible for oversight of the area of noncompliance involved in the disclosure.
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NOTE: The designated FAA official for voluntary disclosure concerning antidrug and alcohol misuse prevention program violations is the Branch Manager, Compliance and Enforcement Branch, Drug Abatement Division, FAA Headquarters.
e. Qualified Fractional Ownership Programs. Fractional ownership programs are defined in part 91, subpart K and associated MSpecs. Participation in the VDRP by a fractional ownership program is limited by the following:
(1) Only program managers authorized in accordance with part 91, subpart K and MSpecs, may participate in the VDRP.
(2) Voluntary disclosures of apparent violations by a fractional ownership program may only be submitted by the program manager, or an authorized representative.
(3) Voluntary disclosures by fractional ownership programs are limited to apparent violations pertaining directly to the duties and responsibilities of the program manager, as defined in part 91, subpart K and MSpecs.
6. VOLUNTARY DISCLOSURE POLICY. The FAA believes that the open sharing of apparent violations and a cooperative as well as an advisory approach to solving problems will enhance and promote aviation safety. Certificate holders, qualified fractional ownership programs, and PAHs will receive a letter of correction in lieu of civil penalty action for covered instances of noncompliance that are voluntarily disclosed to the FAA in accordance with the procedures set forth in this AC. Once the letter of correction is issued, the case will be considered closed unless the agreed-upon comprehensive fix is not satisfactorily completed by the appropriate entity.
a. In evaluating whether an apparent violation is covered by this policy, the FAA will ensure that the following five conditions are met:
(1) The certificate holder, qualified fractional ownership program, or PAH has notified the FAA of the apparent violation immediately after detecting it and before the Agency has learned of it by other means.
(2) The apparent violation was inadvertent.
(3) The apparent violation does not indicate a lack, or reasonable question, of qualification of the certificate holder, qualified fractional ownership program, or PAH.
(4) Immediate action, satisfactory to the FAA, was taken upon discovery to terminate the conduct that resulted in the apparent violation.
(5) The certificate holder, qualified fractional ownership program, or PAH has developed or is developing a comprehensive fix and schedule of implementation satisfactory to the FAA. The comprehensive fix includes a followup self-audit to ensure that the action taken corrects the noncompliance. This self-audit is in addition to any audits conducted by the FAA.
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b. Except as specified in paragraph 7c below, the FAA ordinarily will not forgo legal enforcement action if the certificate holder, qualified fractional ownership program, or PAH informs the FAA of the apparent violation during, or in anticipation of, an FAA investigation/inspection or in association with an accident or incident.
c. The procedures to be followed when applying the voluntary disclosure policy are further described in the following paragraphs.
7. PHASE I: NOTIFICATION TO THE FAA OF AN APPARENT VIOLATION. Except as specified below, the voluntary disclosure policy applies only when notification of an apparent violation is made to the FAA by the certificate holder, qualified fractional ownership program, or PAH immediately after the apparent violation has been discovered by that regulated entity, and before the FAA learns of the apparent violation by some other means.
a. Use of the Web-Based VDRP for Notification of an Apparent Violation. For authorized users of the Web-based VDRP, notification will normally be made via this Web tool (see Appendix 1).
(1) For regulated entities authorized use of the Web-based VDRP, submission of a voluntary disclosure via the Web-based VDRP system will result in automated notification of the PIs assigned to that certificate.
(2) The Web-based VDRP system contains provisions for indicating that the notification process was begun via another media. When acceptable to the PI, initial notice by an authorized user of the Web-based VDRP may be submitted orally, via a written hardcopy, or by electronic copy; provided, the regulated entity enters the initial notification data via the Web-based VDRP system within 72 hours of the original notification. However, compliance with the 10- (or 30-) day limit for submission of the written report will be based on the date of the original notification, regardless of the submission means or media.
NOTE: For regulated entities not yet authorized use of the Web-based VDRP, the notification of an apparent violation will be submitted orally, via a written hardcopy, or by electronic copy. The format for written voluntary disclosures by regulated entities not authorized use of the Web-based VDRP is provided in Appendix 2.
b. Notification by the Certificate Holder, Fractional Ownership Program, or the PAH of an Apparent Violation. When a certificate holder, fractional ownership program, or PAH notifies the FAA of an apparent violation, contact must be made with, or directed to, the appropriate PI. It is FAA policy that initial notification should be accomplished on a timely basis, ordinarily within 24 hours of the discovery of the apparent violation. However, an inspector may accept disclosures that exceed the 24 hour policy when the inspector determines that a later submission is justified based on the specific circumstances, and in view of those circumstances, the submission is still considered timely. For example, a voluntary disclosure based on a company violation revealed in an Aviation Safety Action Program (ASAP) report may require more that 24 hours from the submission of that ASAP report in order for the responsible company entity to become aware of the information in the report and to initiate a voluntary disclosure. The FAA retains sole discretion in determining whether a voluntary Page 4 Par 6
disclosure received later than 24 hours after discovery of the violation is timely. The certificate holder, fractional ownership program, or PAH should therefore not delay notification for any reason, and should address, to the maximum extent possible, the following items with the PI:
(1) A brief description of the apparent violation, including an estimate of the duration of time that it remained undetected, as well as how and when it was discovered.
(2) Verification that noncompliance ceased after it was identified.
(3) A brief description of the immediate action taken after the apparent violation was identified, the immediate action taken to terminate the conduct that resulted in the apparent violation, and the person responsible for taking the immediate action.
(4) Verification that an evaluation is underway to determine if there are any systemic problems and a description of the corrective steps necessary to prevent the apparent violation from recurring.
(5) Identification of the person responsible for preparing the comprehensive fix.
(6) Acknowledgment that a detailed written report will be provided to the PI within 10 working days.
NOTE: In the case of voluntary disclosures submitted via the Web-based VDRP, notification of the PI is accomplished by the program upon submission of the voluntary disclosure by the regulated entity. No further notification is required of the regulated entity.
c. Exceptions. If the FAA has learned of an apparent violation by a certificate holder, fractional ownership program, or PAH from an ASAP report as described in the current edition of AC 120-66, Aviation Safety Action Program, a voluntary disclosure can still be accepted by the FAA, even though the FAA has already learned of the violation from the ASAP. Similarly, if a regulated entity voluntarily agrees to conduct a joint audit (inspection) with the FAA during which an apparent violation is discovered either by the company or FAA members of the audit (inspection) team, the FAA may accept a voluntary disclosure submitted by the company, even though the FAA has already learned of the apparent violation during the course of the joint audit (inspection).
8. PHASE II: FAA RESPONSE TO CERTIFICATE HOLDER, FRACTIONAL OWNERSHIP PROGRAM, OR PAH NOTIFICATION. The PI responds with a written or electronic acknowledgment of the entity’s initial notification. This acknowledgment includes the request for a written report and is sent in lieu of a letter of investigation; provided, the written report is completed in accordance with the voluntary disclosure reporting procedures set forth in this AC and Appendixes 1 and 2. The PI will open an Enforcement Investigative Report (EIR) that will be closed out with a letter of correction, following satisfactory development of a comprehensive fix and schedule of implementation agreed upon by the FAA and the entity.
NOTE: When the regulated entity has submitted the voluntary disclosure via the Web-based VDRP, action on the voluntary disclosure by the PI results in an Par 7 Page 5
automated electronic reply to the regulated entity and an automated opening of the Enforcement Investigative Report (EIR).
9. PHASE III: WRITTEN REPORT OF CERTIFICATE HOLDER, FRACTIONAL OWNERSHIP PROGRAM, OR PAH’S APPARENT VIOLATION. The written report should be provided to the PI, by the regulated entity, within 10 working days after the initial notification was made. A sample format for this report is provided as Appendix 2. In summary, the written report should include the following information:
a. A list of the specific FAA regulations that may have been violated.
b. A description of the apparent violation, including the duration of time it remained undetected, as well as how and when it was detected.
c. A description of the immediate action taken to terminate the conduct that resulted in the apparent violation, including when it was taken, and who was responsible for taking the action.
d. An explanation that shows the apparent violation was inadvertent.
e. Evidence that demonstrates the seriousness of the apparent violation and the regulated entity’s analysis of that evidence.
f. A detailed description of the proposed comprehensive fix, outlining the planned corrective steps, the responsibilities for implementing those corrective steps, and a time schedule for completion of the fix. If a proposed comprehensive fix is not fully developed within 10 working days, the pertinent regulated entity should provide at least an overview of its comprehensive fix plans in a written report submitted within 10 working days after the initial notification was made. In any event, a detailed description of the comprehensive fix should be submitted within 30 calendar days after initial notification.
g. Identification of the company official responsible for monitoring the implementation and completion of the comprehensive fix.
10. PHASE IV: WRITTEN REPORT REVIEW BY THE FAA. The FAA works with the certificate holder, fractional ownership program, or PAH to ensure that the regulated entity has identified any root causes and systemic issues which led to the apparent violation. This collaboration helps to ensure that the corrective actions contained in the comprehensive fix are acceptable to the FAA.
11. PHASE V: IMPLEMENTATI ON OF A COMPREHENSIVE FIX AND FAA SURVEILLANCE.
a. During the implementation period, the FAA and the pertinent regulated entity should continue to work together. The FAA may advise and assist the entity in correcting any identified systemic problems. Changes will be made to the proposed comprehensive fix when the need is identified. Upon determining that the initial implementation of the comprehensive fix is satisfactory, the PI will issue a letter of correction. Should a change to the comprehensive fix be identified after issuance of the letter of correction, the PI will issue an amendment to the letter of correction that reflects this change.
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b. The FAA monitors the implementation of the corrective steps. Throughout the implementation period, the FAA assesses the pertinent regulated entity’s corrective efforts and top management’s awareness of these efforts. If, during this period, the FAA determines that the steps taken by the entity are not those documented in the comprehensive fix, the letter of correction may be rescinded, the investigative report may be reopened, and appropriate legal enforcement action may be initiated.
12. PHASE VI: INSPECTOR SIGNOFF. At the conclusion of the implementation period, the PI makes a final assessment. If all elements of the comprehensive fix have been adequately accomplished, the PI finds the fix satisfactory and closes the case. The case remains subject to reopening in the event that the agreed-upon actions, outlined in the comprehensive fix, are not completed to the satisfaction of the FAA. A statement of follow-up investigation, confirming that the comprehensive fix was satisfactorily implemented and completed, is prepared to complete the FAA’s investigative package.
a. The PI has the authority to close the case. Consultation with regional specialists, legal counsel, or other FAA personnel may be accomplished when deemed appropriate by the PI.
b. Following completion of the agreed-upon corrective action(s), the certificate holder, fractional ownership program, or PAH conducts a self-audit to ensure that the action taken remedies the problem that gave rise to the apparent violation.
c. If, following FAA closure of the investigative package resulting from a voluntary disclosure, the same or similar violations are discovered to have occurred prior to submission of the associated voluntary disclosure, the FAA does not reopen the case unless it determines that the pertinent regulated entity failed to comply with all the elements of the comprehensive fix agreed upon by the FAA and the entity.
13. DISPUTE RESOLUTION. When disputes occur regarding the acceptance of a proposed comprehensive fix, or a modification thereto before the fix is considered satisfactory, the PI and the pertinent regulated entity may request that the issue be resolved at the next level of management within the FAA. This procedure will provide for an independent assessment of the areas in disagreement.
14. SEPARATE ACTIONS AGAINST AIRMEN OR OTHER INDIVIDUAL AGENTS.
a. The voluntary disclosure policy applies to individual airmen or other agents of an employing certificate holder, fractional ownership program, or PAH when the following occurs:
(1) The apparent violation involves a deficiency of the employing entity’s practices or procedures that causes the employing certificate holder, fractional ownership program, or PAH to be in violation of a covered violation of an FAA regulation.
(2) The airman or other agent of the employing entity, while acting on behalf of the employing entity, inadvertently violates the FAA’s regulations as a direct result of a deficiency of the employing entity that causes the employing entity to be in violation of the regulations.
(The voluntary disclosure policy does not apply to the airman or other agent when his/her apparent violation is the result of actions unrelated to the employing entity’s deficiency).
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(3) The airman or other agent immediately makes the report of his/her apparent violation to the employing entity.
(4) The employing certificate holder, fractional ownership program, or PAH immediately notifies the FAA of both the airman or other agent’s apparent violation and the apparent deficiency in its practice or procedures.
b. When all the above conditions are met, a separate EIR is opened for the individual and closed with no more than administrative action in accordance with the current edition of Order 2150.3, Compliance and Enforcement Program.
c. If all the above conditions are not met, the PI will review all facts associated with the case and determine what action is appropriate for individual airmen or other agents of the employing entity.
d. This provision does not apply to matters concerning qualifications to hold an airman certificate.
e. Special provisions exist for apparent violations by certificate holders, fractional ownership programs, or a PAH, when a voluntary disclosure is made based on information in an ASAP report. In such cases, the FAA may, at its sole discretion, accept the corrective action recommended by an ASAP Event Review Committee (ERC) for an accepted ASAP report as the comprehensive fix for the voluntary disclosure. This is acceptable when the following conditions all apply (even when an apparent employee qualification or competency issue is involved):
(1) The FAA determines that the violation is due entirely to the actions of the employee(s) and not to a systematic or procedural deficiency of the company; and
(2) The employee completes the corrective action recommended by the ASAP ERC to the satisfaction of the FAA.
15. APPLICABILITY OF THE FREEDOM OF INFORMATION ACT (FOIA) TO SELF- DISCLOSURE RECORDS. Records submitted to the FAA for review pursuant to this voluntary self-disclosure program, including information submitted using the Web-based VDRP tool (Appendix 1), are protected from release to the public in accordance with the provisions of part 193 and FAA Order 8000.89, Designation of Voluntary Disclosure Reporting Program (VDRP) Information as Protected from Public Disclosure under 14 CFR Part 193.
16. REPEATED VIOLATIONS. If a repeated violation occurs, notwithstanding the fact that a comprehensive fix was satisfactorily completed and followed, the procedures outlined in this AC may apply to the disclosure of the repeated violation. Upon consideration of the facts and circumstances surrounding the repeated violation, the FAA will determine on a case-by-case basis whether a repeated violation will be covered under this policy. Regulated entities and PIs are encouraged to evaluate the systemic issues and circumstances surrounding each apparent violation. This is particularly important when citing a common regulation. Depending upon the specific circumstances associated with the event, citations of a common regulation may not necessarily be indicative of a common systemic failure.
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17. CONCLUSION. Development of internal evaluation programs should help to ensure that any apparent violations are promptly identified, corrected, and reported to the FAA. While not required, the FAA strongly encourages certificate holders, fractional ownership programs, and PAHs, to make internal evaluation programs an integral part of their everyday management process so that the full benefits of voluntary disclosure can be realized. Aviation safety is served by programs that allow certificate holders, fractional ownership programs, and PAH’s to identify and correct their own instances of noncompliance and invest more resources in efforts to preclude their recurrence.
ORIGINAL SIGNED BY James J. Ballough Director, Flight Standards Service Par 17 Page 9 (and 10)
Appendix 1 APPENDIX 1. USE OF THE WEB-BASED VDRP TOOL FOR SUBMISSIONS OF
VOLUNTARY DISCLOSURES Authorized Users: Use of the Web-based Voluntary Disclosure Reporting Program (VDRP) tool will initially be limited to certificated air carriers. Subsequent revisions to the Web tool will provide access to other authorized users. Announcements relating to expansion of access to other users are available at http://av-info.faa.gov/vdrp.
Effective December 8, 2006, voluntary disclosures by air carriers must be processed utilizing the above referenced Internet application, even if initial notification to the Federal Aviation Administration (FAA) is accomplished by other means. This Web-based application offers an automated interface for regulated entities and FAA inspectors to accomplish the voluntary disclosure process virtually paper-free. In addition, the Web-based VDRP provides enhanced capabilities for tracking and managing voluntary disclosures, while protecting all submissions in accordance with the provisions of Title 14 of the Code of Federal Regulations (14 CFR) part 193 and Order 8000.89, Designation of Voluntary Disclosure Reporting Program (VDRP) Information as Protected from Public Disclosure under 14 CFR Part 193.
VDRP Web Address (URL): http://av-info.faa.gov/vdrp
1. GENERAL INFORMATION.
a. The Web-based VDRP is accessible anywhere with an Internet connection, on a 24-hour, 7-day-a-week basis, subject to access privileges granted in accordance with paragraph 3(b) below.
b. Internal tracking and email alerts simplify management of voluntary self-disclosures.
c. Online data entry provides a streamlined and automated VDRP process.
(1) No software to download or install.
(2) Secure: Only authenticated users can access VDRP system. All transactions are encrypted using 128 bit Secure Socket Layer (SSL) technology.
2. USER RESPONSIBILITIES.
a. Regulated Entities. A regulated entity is responsible for submitting the voluntary disclosure, completing the written report, and implementing corrective actions satisfactory to the principal inspector (PI).
b. FAA Inspectors. A PI, or his/her designee, is assigned to a voluntary disclosure. The assigned inspector is responsible for reviewing and accepting (or declining) submissions from the regulated entity (i.e., initial notification, written report and any revisions to the written report/corrective actions). In addition, the PI will issue a Letter of Correction (or other administrative action, as appropriate), while confirming implementation of the corrective actions agreed upon with the regulated entity. The PI will close the VDRP file upon satisfactory implementation of the corrective action(s), or open an enforcement investigation if the regulated entity should fail to implement the corrective action as detailed in the Letter of Correction.
Appendix 1
3. USER LOGIN.
a. FAA Inspector. Login information will be provided via internal channels.
b. Regulated Entity. Contact your FAA certificate-holding office to obtain access information.
4. USER SUPPORT.
a. VDRP Online Help. Provides context sensitive help for every Web form of the application. Online help is available within the Web-based application.
b. VDRP Users Guide. Contains detailed explanation of the VDRP web application, descriptions of VDRP terms, functions and features of VDRP. This is available at the VDRP Web site.
c. AVS Central Support. Provides answers to VDRP related questions and support to solve any VDRP related problems. Call AVS support central for trained personnel to aid users of the Web-based VDRP system.
(1) Hours of operation: 6:00 a.m. – 5:00 p.m. CST Monday through Friday.
(2) Telephone number: Toll-free at (866) 285-4942 or at 405-954-7272.
(3) E-mail address: 9-AMC-AVS-Support-Central@faa.gov.