(2) Intentional Disregard for Safety (Mechanic). An FAA inspection determined that an unauthorized lubricant was employed on an engine valve installation for an aircraft currently undergoing maintenance. The local FSDO immediately opened an EIR concerning the observed noncompliance with 14 CFR. Shortly thereafter, a newly hired maintenance technician submitted an ASAP report stating that he or she had used a lubricant other than what was authorized in the maintenance manual for the engine valve installation, because no authorized substitute lubricants were available in the maintenance facility at the time he or she was performing the work. As an ASAP report had been submitted, the EIR was transferred from the local FSDO to the certificate holding district office at its request. An ERC investigation revealed that the technician knowingly used a substitute non-approved lubricant at the direction of his/her immediate supervisor in order not to delay completion of the job order. The ERC determined the action by the technician in using an unauthorized lubricant constituted intentional disregard for safety, in spite of his/her having been directed to do so by his/her supervisor, and the report was excluded from the program. The event was then referred back to the FSDO having jurisdiction for further investigation, including possible enforcement action and/or reexamination against the technician and his/her supervisor under 49 U.S.C., Subtitle VII, and as prescribed in FAA Order 2150.3A.
15. CORRECTIVE ACTION. The ERC will work with a certificate holder to develop acceptable corrective action that should be taken based on information obtained under an ASAP.
The corrective action must be completed in a manner satisfactory to all members of the ERC.
Failure of a certificate holder to follow through with corrective action acceptable to all members of the ERC to resolve any safety deficiencies will ordinarily result in termination of the program.
In addition, failure of any individual to complete corrective action for an apparent violation, a qualification issue, or medical certification or qualification issue in a manner acceptable to all members of the ERC, may result in the reopening of the case and referral of the matter for appropriate action.
16. MEMORANDUM OF UNDERSTANDING. The provisions of an ASAP that is acceptable to the FAA should be set forth in an MOU signed by each party. A program will be implemented in accordance with the provisions of its MOU. A sample MOU which is available as an automated template (accessible on the Flight Standards Service (AFS) ASAP webpage at http://www.faa.gov/avr/afs) is provided in appendix 1. Each MOU will be based on the parties’ different needs and purposes for an ASAP.
a. MOU Elements. The MOU should set forth the elements of the ASAP, including at least the following which must be consistent with the guidance of this AC:
(1) The identification of what type of operator the program applies to: Part 121 Air Carrier or a Major Domestic Repair Station.
(2) The identification of the type of program and the employee group(s) to which it pertains. The types of programs are:
(a) Demonstration Program;
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(b) Renewal of Demonstration Program;
(c) Continuing Program; or
(d) Renewal of a Continuing Program.
(3) The duration of the program should be limited to the period of time needed to achieve the desired goals and benefits articulated in the program. Demonstration programs initially should have a duration of no longer than 18 months and should be reviewed prior to renewal. Demonstration programs that undergo changes after their initial review may be renewed for no longer than 12 months. Programs that are classified as “Continuing” must be reviewed and renewed every 2 years.
(4) A statement that all parties to the ASAP have entered into this agreement voluntarily.
(5) A description of the objective(s), including the essential safety information that is reasonably expected to be obtained through the program, any specific safety issues that are of a concern to any of the parties, and the benefits to be gained through the use of the program.
(6) A description of any enforcement-related incentive that is needed to achieve the desired goal and results of the program.
(7) A statement that all safety-related reports shall be fully evaluated and, to the extent appropriate, investigated by the ERC.
(8) A description of the manner in which ASAP records and reports shall be kept. All records and documents relating to an ASAP must be appropriately kept in a manner that ensures compliance with 14 CFR and all applicable law, including the Pilot Records Improvement Act.
(9) A description of the process for timely reporting to the FAA all events disclosed under the program.
(10) A description of the procedures for the resolution of those events that are safety-related, and procedures for continuous tracking and analysis of safety-related events.
(11) A statement of the ASAP report acceptance and exclusion criteria.
(12) A description of the frequency of periodic reviews by the parties to determine whether the program is achieving the desired results. These reviews are in addition to any other review conducted by the FAA or any other party individually.
(13) A statement that the ERC shall be comprised of one representative from each party to the MOU, and a description of the duties of the ASAP manager. The ASAP manager may either be the same individual assigned as the company management representative to the ERC, or it may be another individual assigned by the company who will not serve as a voting member of the ERC.
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(14) A description of the process for training and distributing information about the program to certificate holder employees and management, as well as procedures for providing feedback to individuals who make safety-related reports under the program.
(15) A statement that modifications of the MOU must be accepted by all parties.
(16) A statement that termination or modification of a program will not adversely affect anyone who acted in reliance on the terms of a program in effect at the time of that action, e.g., when a program is terminated, all reports and investigations that were in progress will be handled under the provisions of the program until they are completed.
(17) A statement that the program can be terminated at any time, by any party.
(18) A statement that failure of any party to follow the terms of the agreement ordinarily will result in termination of the program.
(19) A statement that failure of a certificate holder to follow through with corrective action acceptable to the FAA to resolve any safety deficiencies ordinarily will result in termination of the program.
(20) A detailed description of the following concepts and how they will be used:
(a) Event Review Committee;
(b) Consensus of the ERC;
(c) Sole-source reporting;
(d) Sufficient evidence; and
(e) Enforcement-related incentive.
(21) A statement that repeated instances involving the same or similar possible noncompliance with 14 CFR that were previously addressed with administrative action under the ASAP will be accepted into the program, provided that they otherwise meet the acceptance criteria of ASAP. The ERC will consider on a case-by-case basis the corrective action that is appropriate for such reports.
(22) ASAPs that may include ATC events should include procedures in the MOU to identify the date, time, location or fix, altitude, flight number, and ATC frequency at the time the event occurred.
(23) A statement that employees initially covered under an ASAP will be excluded from the program and not entitled to the enforcement-related incentive if they fail to complete the Par 16 Page 15
recommended corrective action in a manner satisfactory to all members of the ERC. These cases may result in the reopening of the case and referral of the matter for appropriate action.
(24) A statement that any safety-related ASAP event that concerns an apparent violation(s) that is EXCLUDED from ASAP, will be referred by the FAA ERC representative to an appropriate office within the FAA for any additional investigation and reexamination and/or enforcement action, as appropriate.
(25) A statement that a closed ASAP case, including a related EIR, that involves a violation addressed with administrative action or for which no action has been taken, may be reopened if evidence is later discovered that establishes that the event should have been excluded from the program.
(26) A statement that when the ERC becomes aware of an issue involving the medical qualification or medical certification of an airman, the ERC must immediately advise the appropriate Regional Flight Surgeon about the issue. The ERC will work with the Regional Flight Surgeon and the certificate holder’s medical department or medical consultants to resolve any medical certification or medical qualification issues or concerns revealed in an ASAP report, or through the processing of that report. The FAA ERC member must follow the direction(s) of the Regional Flight Surgeon with respect to any medical certification or qualification issue(s) revealed in an ASAP report.
(27) A statement that reports that appear to involve possible criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification will be referred to an appropriate FAA office for further handling. The FAA may use such reports for any enforcement purposes and will refer such reports to law enforcement agencies, as appropriate.
(28) A statement that the ASAP manager will maintain an electronic data base that tracks each event through and including closure of that event by the ERC and enables trend analysis.
b. Signatories. The MOU must be signed by an authorized representative of each party.
17. ACCEPTANCE/RENEWAL PROCEDURES.
a. Review. The certificate holder should initially develop and present the program to the CHDO for review. If the proposed MOU does not employ the automated template from the Flight Standards Service (AFS) ASAP webpage (accessible at http://www.faa.gov/avr/afs), a completed ASAP checklist (found in Appendix 2 to this AC and on the webpage) should accompany the proposed MOU for review. The CHDO and the certificate holder will jointly review the MOU to ensure that it satisfies the guidance in AC 120-66, as amended, FAA Order 2150.3A, and the FAA Handbook Bulletins for Air Transportation and Airworthiness, entitled Establishment of Aviation Safety Action Programs (ASAP), as applicable. Prior to acceptance, the program should be reviewed to ensure that FAA resources are available to administer the program effectively. Program proposals that require excessive agency resources should be modified or not accepted.
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b. Procedures. When the CHDO is satisfied that the program is acceptable under the guidance of ASAP, the CHDO manager forwards an electronic copy of the proposed MOU as well as the CHDO’s recommendation for acceptance to the respective Flight Standards Division regional office and to the headquarters ASAP program office (Voluntary Safety Programs Branch, AFS-230). If the proposed MOU does not employ the automated template from the AFS ASAP webpage, the completed ASAP checklist (found in Appendix 2 to this AC and on the webpage) should accompany the proposed MOU for processing. All programs, except for renewals of Continuing programs, shall receive authorization for final acceptance from the Director, Flight Standards Service, AFS-1. AFS-1 will indicate acceptance authorization for the MOU by FAA memorandum to the CHDO manager through the regional division manager. The program office will be responsible for preparing the memorandum for AFS-1’s signature and shall submit it with the ASAP package to AFS-1. Following receipt of acceptance authorization from AFS-1, the CHDO manager shall sign the MOU on behalf of the FAA. The certificate holder should allow a minimum of 60 days for the FAA acceptance process to be completed once its ASAP program is received at FAA headquarters for review.
NOTE: ASAP Demonstration programs, renewal of a Demonstration program, and the initial acceptance of a Continuing program are processed in the same manner as described in paragraphs 17a and b.
c. Renewal of a Continuing Program. The renewal of a Continuing program is accomplished every 2 years after a review by the parties to the MOU to ensure the particular ASAP program is meeting its objectives. The renewal may be accomplished at the local CHDO level by the CHDO manager signing the MOU on behalf of the FAA. The CHDO manager shall notify the ASAP program office (AFS-230) in writing, 60 days in advance of renewing a Continuing ASAP program.
d. MOU Amendments. Any amendments to an MOU that has already been accepted must be coordinated with the FAA headquarters ASAP program office (AFS-230) prior to CHDO manager signature, unless those amendments employ the exact language contained in the MOU template on the AFS ASAP webpage. Amendments which employ such pre-approved language may be accepted by the CHDO manager without further coordination, as long as an information copy is provided to the ASAP program office.
e. Revision Control. It is recommended that the certificate holder employ standard revision control methodology with respect to amendments to the MOU. The original and subsequent revisions thereto should include:
(1) For each revision to an original MOU:
(a) A change control page, identifying the revision number;
(b) A brief synopsis of each change to the original document; and
(c) Which pages are to removed and replaced.
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(2) A list of effective pages.
(3) A table of contents.
(4) On each page of the MOU, a calendar date for when that page was prepared or revised.
(5) For all revisions to an original MOU, a revision number on each page which is revised.
(6) Sequential page numbers on all pages of the MOU (except the cover page, if applicable, which shall be understood to constitute page “i”).
18. RECORDKEEPING. The parties should maintain those records necessary for a program’s administration and evaluation. Records submitted to the FAA for review relating to an ASAP are protected to the extent allowed by law under applicable exemptions of the Freedom of Information Act. All records and documents relating to an ASAP must be appropriately kept in a manner that ensures compliance with 14 CFR and all applicable law, including the Pilot Records Improvement Act.
19. ASAP AVIATION RULEMAKING COMMITTEE. The Administrator has determined that a government/industry forum is needed to provide the FAA with advice on FAA ASAP policy and to prepare recommendations on whether rulemaking applicable to ASAP would or would not be appropriate. Accordingly, an ASAP Aviation Rulemaking Committee (ARC) was established by FAA Order 1110.129, Aviation Safety Action Program Aviation Rulemaking Committee, issued June 20, 2001, to serve as a forum for interaction among the FAA, industry employee groups, airlines, and repair stations regarding ASAP goals, issues, and concerns. The FAA order states that the Associate Administrator for Regulation and Certification shall have the sole discretion to appoint members of the committee, and shall receive all committee recommendations and reports. The ARC shall present whatever input, guidance, and recommendations that the members of the committee consider relevant to the disposition of ASAP issues, and ultimately to the achievement of the program’s safety goals.
James J. Ballough Director, Flight Standards Service Page 18 Par 17
Appendix 1 APPENDIX 1. SAMPLE MEMORANDUM OF UNDERSTANDING
This is a sample of an Aviation Safety Action Program (ASAP) memorandum of understanding (MOU) for a flight crewmember employee group at an air carrier operating under Title 14 of the Code of Federal Regulations (14 CFR) Part 121. The sample is identical to the automated template available on the Flight Standards Service (AFS) ASAP webpage located at http://www.faa.gov/avr/afs.In order to be accepted by the Federal Aviation Administration (FAA), the MOU should address the elements of an ASAP that are set forth in FAA guidance material on which this sample is based.
EXECUTIVE STAR AIRLINES
AVIATION SAFETY ACTION PROGRAM (ASAP)
FOR PILOTS
MEMORANDUM OF UNDERSTANDING
1. GENERAL. Executive Star Airlines (ESA) is a Title 14 of the Code of Federal Regulations (14 CFR), air carrier operating under Part 121 engaged in scheduled passenger service within the U.S., Europe, Asia, and South America. ESA operates 300 aircraft, and employs approximately 5000 pilots. The pilots are represented by the Executive Pilots Labor Association (EPLA).
2. PURPOSE. The Federal Aviation Administration (FAA), ESA, and EPLA are committed to improving flight safety. Each party has determined that safety would be enhanced if there were a systematic approach for pilots to promptly identify and correct potential safety hazards. The primary purpose of the ESA Aviation Safety Action Program (ASAP) is to identify safety events, and to implement corrective measures that reduce the opportunity for safety to be compromised.
In order to facilitate flight safety analysis and corrective action, ESA and EPLA join the FAA in voluntarily implementing this ASAP for pilots, which is intended to improve flight safety through pilot self-reporting, cooperative follow-up, and appropriate corrective action. This Memorandum of Understanding (MOU) describes the provisions of the program.
3. BENEFITS. The program will foster a voluntary, cooperative, nonpunitive environment for the open reporting of safety of flight concerns. Through such reporting, all parties will have access to valuable safety information that may not otherwise be obtainable. This information will be analyzed in order to develop corrective action to help solve safety issues and possibly eliminate deviations from 14 CFR. For a report accepted under this ASAP MOU, the FAA will use lesser enforcement action or no enforcement action, depending on whether it is a sole-source report, to address an event involving possible noncompliance with 14 CFR. This policy is referred to in this MOU as an “enforcement-related incentive.”
4. APPLICABILITY. The ESA ASAP applies to all pilot employees of ESA and only to events that occur while acting in that capacity. Reports of events involving apparent noncompliance with 14 CFR that is not inadvertent or that appears to involve an intentional Page 1
Appendix 1 disregard for safety, criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification are excluded from the program.
a. Events involving possible noncompliance with 14 CFR by ESA that are discovered under this program may be handled under the Voluntary Disclosure Policy, provided that ESA voluntarily reports the possible noncompliance to the FAA and that the other elements of that policy are met. (See the current version of AC 00-58, Voluntary Disclosure Reporting Program, FAA Order 2150.3A, Compliance and Enforcement Program, and Compliance/Enforcement Bulletin No. 90-6.)
b. Any modifications of this MOU must be accepted by all parties to the agreement.
5. PROGRAM DURATION. This is a Demonstration Program the duration of which shall be 18 months from the date this MOU is signed by the FAA (following signature by the other parties). If the program is determined to be successful after a comprehensive review and evaluation, the parties intend for it to be a Continuing Program. This ASAP may be terminated at any time for any reason by ESA, the FAA, or any other party to the MOU. The termination or modification of a program will not adversely affect anyone who acted in reliance on the terms of a program in effect at the time of that action; i.e., when a program is terminated, all reports and investigations that were in progress will be handled under the provisions of the program until they are completed. Failure of any party to follow the terms of the program ordinarily will result in termination of the program. Failure of ESA to follow through with corrective action acceptable to the FAA to resolve any safety deficiencies ordinarily will result in termination of the program.
6. REPORTING PROCEDURES. When a flight crewmember observes a safety problem or experiences a safety-related event, he or she should note the problem or event and describe it in enough detail so that it can be evaluated by a third party.
a. ASAP Report Form. At an appropriate time during the workday (e.g. after the trip sequence has ended for the day), the employee should complete ESA ASAP Form (ESA Form ASAP-1234) for each safety problem or event and submit it by company mail to the Director of Flight Safety, ATTN: ASAP Manager. If the safety event involves a deviation from an ATC clearance, the pilot should note the date, time, place, altitude, flight number, and ATC frequency, along with enough other information to fully describe the event and any perceived safety problem.
b. Time Limit. Reports that the ERC determines to be sole-source will be accepted under the ASAP, regardless of the timeframe within which they are submitted, provided that they otherwise meet the acceptance criteria of paragraphs 11a(2) and (3) of this MOU. Reports which the ERC determines to be non-sole-source must meet the same acceptance criteria, and must also be filed within one of the following two possible timeframes:
(1) Within 24 hours after the end of the flight sequence for the day of occurrence, absent extraordinary circumstances. For example, if the event occurred at 1400 hours on Monday and a pilot completes the flight sequence for that day at 1900 hours, the report should be filed no later Page 2
Appendix 1 than 1900 hours on the following day (Tuesday). In order for all employees to be covered under the ASAP for any apparent noncompliance with 14 CFR resulting from an event, they must all sign the same report or submit separate signed reports for the same event. If the company mail system is not available to the flight crewmember at the time he or she needs to file a report, the employee may contact the ASAP manager’s office and file a report via fax or telephone within 24 hours after the end of the flight sequence for the day of occurrence, absent extraordinary circumstances. Reports filed telephonically within the prescribed time limit must be followed by a formal report submission within three calendar days thereafter.
(2) Within 24 hours of having become aware of possible noncompliance with 14 CFR provided the following criteria are met: If a report is submitted later than the time period after the occurrence of an event stated in paragraph 6b(1) above, the ERC will review all available information to determine whether the flight crewmember knew or should have known about the possible noncompliance with 14 CFR within that time period. If the ERC determines that employee did not know or could not have known about the possible noncompliance with 14 CFR until informed of it, then the report would be included in ASAP, provided the report is submitted within 24 hours of having become aware of possible noncompliance with 14 CFR, and provided that the report otherwise meets the acceptance criteria of this MOU. If the employee knew or should have known about the possible noncompliance with 14 CFR, then the report will not be included in ASAP.
c. Non-reporting employees covered under this ASAP MOU. If an ASAP report identifies another covered employee in an event involving possible noncompliance with 14 CFR and that employee has neither signed that report nor submitted a separate report, the ERC will determine on a case-by-case basis whether that employee knew or reasonably should have known about the possible noncompliance with 14 CFR. If the ERC determines that the employee did not know or could not have known about the apparent possible noncompliance with 14 CFR, and the original report otherwise qualifies for inclusion under ASAP, the ERC will offer the non-reporting employee the opportunity to submit his/her own ASAP report. If the non-reporting employee submits his/her own report within 24 hours of notification from the ERC, that report will be afforded the same consideration under ASAP as that accorded the report from the original reporting employee, provided all other ASAP acceptance criteria are met. However, if the nonreporting employee fails to submit his/her own report within 24 hours of notification from the ERC, the possible noncompliance with 14 CFR by that employee will be referred to an appropriate office within the FAA for additional investigation and reexamination and/or enforcement action, as appropriate, and for referral to law enforcement authorities, if warranted.
d. Non-reporting employees not covered under this ASAP MOU. If an ASAP report identifies another ESA employee who is not covered under this MOU, and the report indicates that employee may have been involved in possible noncompliance with 14 CFR, the ERC will determine on a case-by-case basis whether it would be appropriate to offer that employee the opportunity to submit an ASAP report. If the ERC determines that it is appropriate, the ERC will provide that employee with information about ASAP and invite the employee to submit an ASAP report. If the employee submits an ASAP report within 24 hours of notification from the ERC, that report will be covered under ASAP, provided all other ASAP acceptance criteria are met. If the employee fails to submit an ASAP report within 24 hours of notification from the Page 3
Appendix 1 ERC, the possible noncompliance with 14 CFR by that employee will be referred to an appropriate office within the FAA for additional investigation and reexamination and/or enforcement action, as appropriate, and for referral to law enforcement agencies, if warranted.
7. POINTS OF CONTACT. The ERC will be comprised of one representative from ESA management; one representative from the EPLA; and one FAA inspector assigned as the ASAP representative from the Certificate Holding District Office (CHDO) for ESA; or their designated alternates in their absence. In addition, the ESA Safety Department will designate one person who will serve as the ASAP manager. The ASAP manager will be responsible for program administration, and will not serve as a voting member of the ERC.
8. ASAP MANAGER. When the ASAP manager receives the report, he or she will record the date and time of any event described in the report and the date and time the report was submitted through the company mail system. The ASAP manager will enter the report, along with all supporting data, on the agenda for the next ERC meeting. The ERC will determine whether a report is submitted in a timely manner or whether extraordinary circumstances precluded timely submission. To confirm that a report has been received, the ASAP manager will send a written receipt through the company mail system to each employee who submits a report. The receipt will confirm whether or not the report was determined to be timely. The ASAP manager will serve as the focal point for information about, and inquiries concerning the status of, ASAP reports, and for the coordination and tracking of ERC recommendations.
9. EVENT REVIEW COMMITTEE (ERC). The ERC will review and analyze reports submitted by the pilots under the program, identify actual or potential safety problems from the information contained in the reports, and propose solutions for those problems. The ERC will provide feedback to the individual who submitted the report.
a. The ASAP manager will maintain a database that continually tracks each event and the analysis of those events. The ERC will conduct a 12-month review of the ASAP database with emphasis on determining whether corrective actions have been effective in preventing or reducing the recurrence of safety-related events of a similar nature. That review will include recommendations for corrective action for recurring events indicative of adverse safety trends.
b. This review is in addition to any other reviews conducted by the FAA. The ERC will also be responsible for preparing a final report on the demonstration program at its conclusion. If an application for a continuing program is anticipated, the ERC will prepare and submit a report with the certificate holder’s application to the FAA 60 days in advance of the termination date of the demonstration program.
10. ERC PROCESS.
a. The ERC will meet as necessary to review and analyze reports that will be listed on an agenda submitted by the ASAP manager. The ERC will determine the time and place of the meeting. The ERC will meet at least twice a month and the frequency of meetings will be determined by the number of reports that have accumulated or the need to acquire time critical information.
Appendix 1
b. The ERC will make its decisions involving ASAP issues based on consensus. Under the ESA ASAP, consensus of the ERC means the voluntary agreement of all representatives of the ERC. It does not require that all members believe that a particular decision or recommendation is the most desirable solution, but that the result falls within each member’s range of acceptable solutions for that event in the best interest of safety. In order for this concept to work effectively, each ERC representative shall be empowered to make decisions within the context of the ERC discussions on a given report. The ERC representatives will strive to reach consensus on whether a reported event is covered under the program, how that event should be addressed, and the corrective action or any enforcement action that should be taken as a result of the report. For example, the ERC should strive to reach a consensus on the recommended corrective action to address a safety problem such as an operating deficiency or airworthiness discrepancy reported under ASAP. The corrective action process would include working the safety issue(s) with the appropriate departments at the airline and the FAA that have the expertise and responsibility for the safety area of concern. Recognizing that the FAA holds statutory authority to enforce the necessary rules and regulations, it is understood that the FAA retains all legal rights and responsibilities contained in Title 49, United States Code, and FAA Order 2150.3A. In the event there is not a consensus of the ERC on decisions concerning a report involving an apparent violation(s), a qualification issue, or medical certification or medical qualification issue, the FAA ERC representative will decide how the report should be handled. The FAA will not use the content of the ASAP report in any subsequent enforcement action, except as described in paragraph 11a(3) of this MOU.
c. It is anticipated that three types of reports will be submitted to the ERC: safety-related reports that appear to involve a possible noncompliance with 14 CFR; reports that are of a general safety concern, but do not appear to involve possible noncompliance with 14 CFR; and any other reports, e.g., involving catering and passenger ticketing issues. All safety-related reports shall be fully evaluated and, to the extent appropriate, investigated.
d. The ERC will forward non-safety reports to the appropriate ESA department head for his/her information and, if possible, internal (ESA) resolution. For reports related to flight safety, including reports involving possible noncompliance with 14 CFR, the ERC will analyze the report, conduct interviews of reporting crewmembers, and gather additional information concerning the matter described in the report, as necessary.
e. The ERC should also make recommendations to ESA for corrective action for systemic issues. For example, such corrective action might include changes to ESA flight operations procedures, aircraft maintenance procedures, or modifications to the training curriculum for crewmembers. Any recommended changes that affect ESA will be forwarded through the ASAP manager to the appropriate department head for consideration and comment, and, if appropriate, implementation. The FAA will work with ESA to develop appropriate corrective action for systemic issues. The ASAP manager will track the implementation of the recommended corrective action and report on associated progress as part of the regular ERC meetings. Any recommended corrective action that is not implemented should be recorded along with the reason it was not implemented.
Appendix 1
f. When the ERC becomes aware of an issue involving the medical qualification or medical certification of an airman, the ERC must immediately advise the appropriate Regional Flight Surgeon about the issue. The ERC will work with the Regional Flight Surgeon and the certificate holder’s medical department or medical consultants to resolve any medical certification or medical qualification issues or concerns revealed in an ASAP report, or through the processing of that report. The FAA ERC member must follow the direction(s) of the Regional Flight Surgeon with respect to any medical certification or medical qualification issue(s) revealed in an ASAP report.
g. Any corrective action recommended by the ERC for a report accepted under ASAP must be completed to the satisfaction of all members of the ERC, or the ASAP report will be excluded from the program, and the event will be referred to the FAA for further action, as appropriate.
h. Use of the ESA ASAP Report: Neither the written report nor the content of the written ASAP report will be used to initiate or support any company disciplinary action, or as evidence for any purpose in an FAA enforcement action, except as provided in paragraph 11a(3) of this MOU. The FAA may conduct an independent investigation of an event disclosed in a report.
11. FAA ENFORCEMENT.
a. Criteria for Acceptance. The following criteria must be met in order for a report to be covered under ASAP:
(1) The employee must submit the report in accordance with the time limits specified under paragraph 6 of this MOU;
(2) Any possible noncompliance with 14 CFR disclosed in the report must be inadvertent and must not appear to involve an intentional disregard for safety; and,
(3) The reported event must not appear to involve criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification. Reports involving those events will be referred to an appropriate FAA office for further handling. The FAA may use the content of such reports for any enforcement purposes and will refer such reports to law enforcement agencies, if appropriate. If upon completion of subsequent investigation it is determined that the event did not involve any of the aforementioned activities, then the report will be referred back to the ERC for a determination of acceptability under ASAP. Such referred back reports will be accepted under ASAP provided they otherwise meet the acceptance criteria contained herein.
b. Administrative Action. Notwithstanding the criteria in paragraph 205 of FAA Order 2150.3A, possible noncompliance with 14 CFR disclosed in a non-sole-source ASAP report that is covered under the program and supported by sufficient evidence will be addressed with administrative action (i.e., a FAA Warning Notice or FAA Letter of Correction, as appropriate).
Sufficient evidence means evidence gathered by an investigation not caused by, or otherwise predicated on, the individual’s safety-related report. There must be sufficient evidence to prove the violation, other than the individual’s safety-related report. In order to be considered sufficient evidence under ASAP, the ERC must determine through consensus that the evidence Page 6