U.S. Department Advisory of Transportation Federal Aviation Circular Administration Subject: Voluntary Disclosure Reporting Date: 09/29/17 AC No: 121-37A Program - Hazardous Materials Initiated By: AXH
1. PURPOSE. This advisory circular (AC) provides guidance to holders of certificates under Title 14 of the Code of Federal Regulations (CFR) parts 119 and 125 and foreign air carriers issued operations specifications under 14 CFR part 129 (operators) who voluntarily disclose to the Federal Aviation Administration (FAA) their violation(s) of certain hazardous materials regulations (HMR) under this voluntary disclosure reporting program (VDRP).
This also provides guidance on the new process used to submit hazmat-related voluntary disclosures, which is now closely aligned with the process used by the FAA's Flight Standards Service (AFS).
2. CANCELLATION. AC 121-37, Hazardous Materials Voluntary Disclosure Reporting Program, dated January 31, 2006, is cancelled.
3. RELATED CFR REGULATIONS. Title 14 CFR parts 119, 121, 125, 129, 135 and 49 CFR parts 171, 172, 173 and 175.
4. SCOPE and APPLICABILITY.
4.1. This VDRP policy applies when an operator commits an apparent violation involving the offering, acceptance, or transportation, of hazardous materials under the following regulations:
4.1.1. 14 CFR part 121, subpart Z
4.1.2. 14 CFR part 135, subpart K
4.1.3. 49 CFR §§ 171.15, 171.16 and 171.22 part 172 (including violation of the standards contained in the International Civil Aviation Organization Technical Instructions (ICAO TI)) and 49 CFR §§ 171.23 and 171.24
4.1.4. 49 CFR part 172
4.1.5. 49 CFR part 173
4.1.6. 49 CFR part 175
4.2. This policy also applies to apparent violations committed by cargo and ground handling contractors of the operator during acceptance, loading, unloading, and transport, of hazardous materials on behalf of the operator. This includes offering of
company material, i.e., COMAT, on behalf of the operator. Any apparent violations committed by a contractor that relate to an activity performed on behalf of the operator may be disclosed by the operator for VDRP consideration.
4.3. Operators may not use the VDRP to report violations in which the violation has been part of an incident or accident involving death, injury, or property damage, or to report violations that the FAA has already become knowledgeable about through its own inspection or investigation.
4.4. This AC is divided into the main body, which addresses issues common to all operators utilizing the VDRP, and an appendix, which explains the processes and responsibilities of the operators using this policy, as well as the FAA.
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:
5.1. AXH. The FAA Office of Hazardous Materials Safety. The office was formerly referred to with the designator "ADG" until September 30, 2017.
5.2. Comprehensive Fix. A comprehensive fix is an action, or are actions, proposed by the operator, and accepted by the FAA, to preclude recurrence of the apparent violation that has been voluntarily disclosed under this program.
5.3. Evidence. For the purpose of voluntary disclosure, evidence should generally be in the form of written documentation or reports that support an operator's analysis of the disclosed apparent violation, and the resulting elements of the proposed comprehensive fix. Evidence generally consists of the following six categories:
5.3.1. Shipping papers and other documents obtained from shippers, freight forwarders, or other entities involved in the offer, acceptance, or transportation, of hazardous materials;
5.3.2. Operator manuals;
5.3.3. Equipment examined;
5.3.4. Activities observed;
5.3.5. Information received from interviews; and
5.3.6. Photographic evidence
5.4. Hazardous Materials. In this AC, the term hazardous materials is synonymous with dangerous goods.
5.5. Operator. Operator refers to holders of certificates under Title 14 of the Code of Federal Regulations (CFR) parts 119 and 125, and foreign air carriers issued operations specifications under 14 CFR part 129.
5.6. Principal Hazmat Inspector (PHI). For purposes of this AC, this is the designated FAA official who is the main point of contact for the oversight of an operator's hazardous materials transportation safety program. The PHI could be the Hazardous Materials Division Manager (HMDM), PHI, Front Line Manager (FLM), or other designated FAA official.
5.7. 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.
6. BACKGROUND.
6.1. Addressing Non-Compliance. The FAA believes that aviation safety is well served by incentives for operators to identify and correct their own instances of noncompliance, and to invest more resources in efforts to preclude their recurrence.
A civil penalty has always been considered a means to promote compliance with the FAA's regulations, and not an end in itself. 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 (IEPs). This policy is consistent with the FAA's compliance philosophy, which states, in part:
When deviations from regulatory standards do occur, the FAA's goal is to use the most effective means to return an individual or entity that holds an FAA certificate, approval, authorization, permit or license to full compliance and to prevent recurrence.
See FAA Order 8000.373, "FAA Compliance Philosophy".
6.2. Self-disclosing Violations. The FAA believes that the open sharing of reports of apparent violations by operators with the FAA encourages cooperation and communication optimal for solving problems and will enhance and promote aviation safety.
6.3. Internal Evaluation Programs (IEPs): Operators are expected to have robust means for monitoring their operations to discover violations. Under a wellfunctioning Safety Management System (SMS), operators must continually monitor their operations, and be cognizant of the regulations, company policies, and procedures, to ensure that the highest level of safety is maintained. They may voluntarily disclose apparent violations, in accordance with this AC, even though a formal internal evaluation program has not been established. Guidance on IEPs is contained in the current edition of AC 120-59, Air Carrier Internal Evaluation Programs.
7. VOLUNTARY DISCLOSURE POLICY.
7.1. The FAA will accept an operator's voluntary disclosure of apparent noncompliance with those regulations referenced in paragraph 4 to the extent that the operator can demonstrate that it meets the conditions outlined in paragraph 7.2., and otherwise complies with the requirements of this AC.
7.2. The FAA will only accept submissions made by an employee of an operator, in accordance with Appendix A, paragraph 3.7, of this AC. Submissions by individuals not employed by the operator will not be accepted.
7.3. Initial Evaluation of Voluntary Disclosure Submission. In evaluating whether an apparent violation is covered by this policy, the FAA will ensure that the following six conditions are met:
7.3.1. The operator has notified the FAA of the apparent violation within 72 hours after detecting it, and before the Agency has learned of it by other means. However, the FAA may accept disclosures that exceed the 72-hour policy if the FAA determines that a later submission is justified based on the specific circumstances and, in view of those circumstances, the submission is still considered timely.
7.3.2. The apparent violation was neither intentional nor reckless.
7.3.3. Immediate action, satisfactory to the FAA, was taken upon discovery to terminate the conduct that resulted in the apparent violation.
7.3.4. The operator has informed the FAA that it is committed to conducting a thorough root-cause analysis, and is developing a comprehensive fix and schedule of implementation satisfactory to the FAA. The plan for the comprehensive fix would include a requirement for a follow-up self-audit(s) to ensure that the action(s) taken corrects the noncompliance. This self-audit would occur prior to verification audits conducted by the FAA.
7.3.5. The FAA does not already have independently-obtained information about the violation, the violation is not part of an FAA inspection/investigation (see paragraph 8), and the violation is not associated with an accident or incident.
7.3.6. The submission is not a "repeat" violation that is ineligible for acceptance as a self-disclosure in accordance with paragraph 9.
7.4. The FAA will not accept a voluntary disclosure if a violation by an operator demonstrates a lack of, or gives the FAA reason to question, qualifications to hold a certificate.
7.5. The FAA will send operators written correspondence documenting the satisfactory completion of the comprehensive fixes taken by the operator, in lieu of civil penalty action, for instances of noncompliance that are voluntarily disclosed to the FAA in accordance with the procedures set forth in this AC.
8. LEGAL ENFORCEMENT ACTION. The FAA ordinarily will not forgo legal enforcement action if the operator informs the FAA of the apparent violation during, or in anticipation of, an FAA investigation/inspection, or in association with an accident or incident. The FAA, however, will forgo enforcement action in the following instances:
8.1. Exception 1 - Aviation Safety Action Program (ASAP) Report. If the FAA has learned of an apparent violation by an operator from an ASAP report, as described in the current edition of AC 120-66, Aviation Safety Action Program (ASAP), a voluntary disclosure can still be accepted by the FAA even though the FAA has already learned of the violation from the ASAP.
8.2. Exception 2 - Joint Audit. If an operator 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).
Typically, a joint audit would occur during the design phase of the operator's safety management process; however, the FAA may also authorize joint audits in lieu of, or in addition to, performance element inspections of the operator.
9. REPEATED VIOLATION. 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. Operators are encouraged to evaluate the systemic issues and circumstances surrounding each apparent violation, which the FAA will evaluate. This is particularly important when citing recurring violations of 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. The FAA will notify the operator if its history of repeated violations with a similar root cause will result in non-acceptance of future VDRP submissions pertaining to the same issue.
10. COMPLETION OF SATISFACTORY FIX. The operator must complete the comprehensive fix and conduct a self-audit(s) to verify the effectiveness of the corrective action. Once the operator has implemented the fix, and found their fix to be satisfactory, the FAA will verify satisfactory completion of the comprehensive fix and close the voluntary disclosure record.
11. CLOSED CASE: CONDITIONS FOR REOPENING. If, following FAA closure of the investigation resulting from a voluntary disclosure, the same or similar violations are discovered to have occurred prior to the submission of the associated voluntary disclosure, the FAA does not reopen the case, unless it determines that the operator failed to comply with all of the elements of the comprehensive fix agreed upon by the FAA and the operator.
12. DISPUTE RESOLUTION. When disputes occur regarding the acceptance of a proposed comprehensive fix, or a modification thereto, before the fix is considered satisfactory, the FAA and the operator 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.
13. INTERACTION OF VDRP AND MANDATORY REPORTING REQUIREMENTS.
This AC does not alter operators' requirements to comply with mandatory reporting requirements contained in 49 CFR §§ 171.15, 171.16, and 175.31; however, it provides the following relief:
13.1. Under the mandatory incident reporting provisions of the HMR (49 CFR §§ 171.15 and 171.16), operators are required to provide immediate notice, i.e., as soon as practicable, but no later than 12 hours, to the National Response Center (NRC) of an incident reportable under 49 CFR § 171.15(b)(6), for incidents involving transportation by aircraft, and/or file a written report to the FAA within 30 days, for an incident meeting the reporting requirements of 49 CFR § 171.16(a). To the extent that an operator fails to comply with its reporting obligations, it may submit a voluntary disclosure to inform the FAA of the failure to comply with the reporting requirement. The FAA would address the submission as it would for any other voluntary disclosure, i.e., in accordance with paragraph 7.3. The operator still must file the original report to which the VDR pertains.
13.2. Under 175.31, operators must notify the nearest FAA regional or field security office upon discovery of a discrepancy, as defined in 49 CFR § 175.31(b), as soon as practicable. This requirement is triggered when a discrepancy is discovered following an acceptance of hazardous material for transportation aboard an aircraft, but only to the extent that the subject hazardous material is improperly described, certified, labelled, marked, or packaged in a manner not ascertainable when accepted, under § 175.30. To the extent that an operator fails to comply with its reporting obligations, it may submit a voluntary disclosure to inform the FAA of the failure to comply with the reporting requirement. The FAA would address the submission as it would for any other voluntary disclosure, i.e., in accordance with paragraph 7.3. The operator still must file the original report to which the VDR pertains.
13.2.1. Although not subject to reporting as a discrepancy under § 175.31, the FAA will also accept voluntary disclosures in accordance with this AC involving discrepancies that are otherwise not subject to the reporting requirements of
175.31, i.e., those ascertainable when the operator accepted the hazardous material for transportation by air.
14. APPLICABILITY OF THE FREEDOM OF INFORMATION ACT (FOIA) TO SELF- DISCLOSURE RECORDS. Records accepted by the FAA in accordance with this AC, including information submitted using the Web-based VDRP tool (Appendix A), are protected from release to the public in accordance with the provisions of 14 CFR part 193 and FAA Order 8000.89, titled "Designation of Voluntary Disclosure Reporting Program (VDRP) Information as Protected from Public Disclosure under 14 CFR Part 193".
ORIGINAL SIGNED by Claudio Manno Associate Administrator Office of Security and Hazardous Materials Safety 7
Appendix A APPENDIX A. GUIDE TO FAA HAZARDOUS MATERIALS SAFETY PROGRAM (HMSP) VOLUNTARY DISCLOSURE REPORTING PROGRAM (VDRP) FOR
OPERATORS This guide is for holders of certificates under Title 14 of the Code of Federal Regulations (14 CFR) parts 119 and 125 for operations under 14 CFR part 121 and/or part 135, and foreign air carriers issued operations specifications under 14 CFR part 129.
A-1 Access to the VDRP Web-based System. Access to the web-based system requires assignment of a log-in identification and a password, which are obtained via the following means:
A.1.1 Operator Representatives. Users named by an operator to represent the company on voluntary disclosure issues will be added to the VDRP Web-based system by an FAA Principal Hazmat Inspector (PHI) assigned hazardous materials oversight responsibilities for that operator. Each authorized representative will be issued a unique log-in identification and password for access to the system. Refer to VDRP User Guide at: https://av-info.faa.gov/VDRP/UserGuide.pdf, or contact VDRP Help Desk at (844) 322-6948 for additional information.
A.2 The Six Stages of the VDRP. The web-based VDRP employs a six-stage process.
Responsibility for each stage is assigned to either the operator or the FAA, as described below. Except as specified in this AC, the voluntary disclosure policy applies only when notification of an apparent violation is made to the FAA by the operator, within 72 hours after the apparent violation has been discovered by that operator, and before the FAA learns of the apparent violation by some other means. However, a PHI may accept disclosures that exceed the 72-hour policy when the PHI determines that a later submission is justified based on the specific circumstances.
A.2.1 Operator Requirements. All operators are required to utilize the Web-based VDRP system when submitting voluntary disclosures to the FAA.
A.2.2 Disclosure Notification. Notification of a disclosure to the FAA will normally be made via the Web-based system.
A.2.3 Web-based VDRP System Provisions. The Web-based VDRP system contains provisions for indicating that the notification process was initiated via another medium.
When acceptable to the PHI, initial notice of a voluntary disclosure may be submitted orally, via a written hardcopy, or by electronic copy, provided the operator enters the initial notification data via the Web-based VDRP system within 72 hours of the original notification. Compliance with the 30-day limit for submission of the written report, as described in Stage 3 below, will be based on the date of the original notification, regardless of the submission means or media.
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Appendix A Stage 1: Notification by the Operator of an Apparent Violation. When the operator notifies the FAA of an apparent violation, contact must be made with, or directed to, the appropriate PHI. The notification requirement is automatically met when all fields are complete and the disclosure is submitted via the web-based VDRP system. It is FAA policy that initial notification is provided within 72 hours of the discovery of the apparent violation. However, a PHI may accept disclosures that exceed the 72-hour policy if the PHI determines that a later submission is justified based on the specific circumstances. For example, a voluntary disclosure based on a company violation revealed in an Aviation Safety Action Program (ASAP) report may require more than 72 hours from the submission of that ASAP report in order for the responsible company 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 disclosure received later than 72 hours after discovery of the violation is timely. The operator should therefore not delay notification for any reason, and should address, to the maximum extent possible, the following items:
A.3.1 Brief Description of Apparent Violation. 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, and the hazardous materials involved.
A.3.2 Verification that the Noncompliance has Ceased. Verification that noncompliance ceased immediately after it was identified.
A.3.3 Brief Description of Immediate Action. A brief description of the immediate action taken after the apparent violation was identified, the immediate action taken to terminate the action that resulted in the apparent violation, and the individual responsible for taking the immediate action.
A.3.4 Verification of Evaluation. Verification that an evaluation is underway to determine:
A.3.4.1 If there are any systemic problems;
A.3.4.2 The corrective steps necessary to prevent the apparent violation from recurring; and A.2.4.3 A thorough root-cause analysis is being conducted.
A.3.5 Identification of Responsible Individual. Identification of the individual responsible for preparing the comprehensive fix.
A.3.6 Acknowledgement of a Written Report. Acknowledgment that a written report will be provided to the PHI within 30 working days A.3.7 Initial Notification Submission by Management Officials. The initial notification of a voluntary disclosure must be submitted by one of the management officials specified in 14 CFR, § 119.65, or § 119.69, as appropriate, or in accordance with paragraph 3.8 below. For part 129 operators, this would be the Director of Safety or equivalent, A-2
Appendix A Director of Operations or equivalent, Director of Maintenance or equivalent, Chief Pilot or equivalent, or the Chief Inspector or equivalent.
A.3.8 Initial Notification Submission by Authorized Employees. The initial notification can be submitted by an employee authorized by the airline to accomplish initial notification, as long as that employee includes a letter signed by one of the management officials specified in 14 CFR§ 119.65 or § 119.69, as appropriate, or for part 129 operators, the positions listed above in paragraph 3.7 of the appendix. That letter must stipulate that:
A.3.8.1 The corporate official is aware of the disclosure, A.3.8.2 The company took immediate action to cease the violation, and A.3.8.3 The company has conducted, or is conducting, a thorough root-cause analysis and has developed, or is developing, a proposed comprehensive fix for FAA consideration to prevent future reoccurrences of the violation, as provided by this AC.
A.3.8.4 The Web-based VDRP allows upload of documents (photos, text documents, letters, etc.) by the operator in Stages 1 and 3, and upload by the FAA in Stages 2, 4, 5 and 6, to enable the attachment of whatever documents may be required to support their submissions. Document size must not exceed 8MB.
A.4 Stage 2: FAA Response to Operator. The PHI will review the web-based submission from the operator and respond in a timely manner, normally within 72 hours. If the original submission from the operator was made via an alternative medium (e.g..
telephone, etc.), the PHI will not respond via an alternative means, but will respond to the subsequent web-based submission by the operator.
A.4.1 PHI Review. The PHI's review of the disclosure will, to the extent possible, confirm the submission meets the requirements set forth in paragraph 7.3. of this AC, and paragraph 3.8 of this appendix.
A.4.2 PHI Completion of the Review. Once the PHI completes the review of the voluntary disclosure submission, he/she makes a determination to accept the disclosure, return it for editing, or find it invalid.
A.4.2.1 Acceptance: If the PHI elects to accept the disclosure, the PHI completes the required Stage 2 entries in the web-based VDRP and submits his/her input. Upon submission by the PHI, the VDRP system will alert AXH, via email, that the file is awaiting review.
A.4.2.2 Return for Edit: If the PHI finds the disclosure does not contain sufficient information to accept the disclosure, the PHI has the option of returning the disclosure to the operator for editing. Upon selection of the "send back" button and submission by the PHI, the VDRP system notifies the operator of the determination via email and returns the case to Stage 1, pending resubmission by the operator.
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Appendix A A.4.2.3 Rejection/Invalid: If the PHI finds the disclosure does not meet the requirements set forth in this AC for acceptance, or it has been determined that no violation occurred, the PHI selects "No" in response to the question, "Is this a valid self-disclosure?" Upon submission by the PHI, the operator is notified of that determination by email.
A.4.3 FAA Office of Hazardous Materials Safety (AXH) Review of PHI Determination.
AXH will review the PHI's determination to accept the voluntary disclosure.
A.4.3.1 If AXH indicates concurrence with the PHI's acceptance determination, and selects "Submit," Stage 2 is concluded and the record will advance into Stage 3, which triggers an automated email notification to the operator of the acceptance.
A.4.3.2 If AXH indicates non-concurrence with the PHI's acceptance determination, the case will be referred back to the PHI for reconsideration, with whatever comments have been entered by AXH. The case will not advance to Stage 3 until AXH submits concurrence with the PHI's determination.
NOTE: If, at any time subsequent to acceptance of the disclosure, the FAA becomes aware that the disclosure did not meet the requirements for acceptance under the VDRP, the acceptance is withdrawn. In such a circumstance, if the FAA has sufficient evidence to proceed with legal enforcement action in accordance with the current edition of FAA Order 2150.3, the FAA may use as evidence any material disclosed under the VDRP. In any such case, and in any case where the FAA subsequently determines that a violation did not occur, the web-based system provides the option of "rescinding" a case, which closes the file, without action, within the VDRP.
A.5 Stage 3: Written Report of the Operator's Apparent Violation.
Written Report. The written report should be submitted by the operator, to the PHI, via the web-based VDRP system, within 30 calendar-days from the date the disclosure was submitted to the FAA. This report must contain a detailed description of the root-cause analysis, the proposed comprehensive fix outlining the planned corrective steps, the responsibilities for implementing those corrective steps, and a schedule for completion of the fix. If a proposed comprehensive fix is not fully developed within 30 calendar days from the date the disclosure was submitted to the FAA, the operator may request a one-time 15 calendar-day extension. In this case, a detailed description of the comprehensive fix should be submitted to the FAA within 45 calendar days after initial notification.
A.5.2 Required Input. The VDRP web-based system requires the input of the following information in the Written Report Stage:
A.5.2.1 A list of the specific regulations that may have been violated, including section and subsection of the regulation;
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Appendix A A.5.2.2 A description of the apparent violation, including the duration of time it remained undetected, as well as how and when it was detected, and the hazardous materials involved;
A.5.2.3 Identification of the individual who discovered the violation;
A.5.2.4. A description of the immediate action taken to terminate any conduct that resulted in the apparent violation, including when it was taken, and the individual who was responsible for taking the action;
A.5.2.5 An explanation that demonstrates the apparent violation was neither intentional nor reckless;
A.5.2.6 Completion of a Risk Assessment Matrix to aid in evaluating the significance of the event;
A.5.2.7 A detailed description of the root-cause analysis and the proposed comprehensive fix, outlining the planned corrective steps, the individual responsible for implementing those corrective steps, and a schedule for completion of the fix; this must also include the proposed plan for the self-audit of the completion of the implementation of the corrective action; and A.5.2.8 Identification of the company official(s) responsible for monitoring the implementation and completion of the comprehensive fix and the self-audit.
A.6 Stage 4: Written Report Review by the FAA. The FAA will review the information submitted in Stage 3 and work with the operator to ensure that they have identified any root causes and systemic issues which led to the apparent violation. In this stage, the PHI is also tasked with completing a:
A.6.1 Risk Assessment Matrix to aid in evaluating the significance of the event, and the proposed comprehensive fix. This collaboration helps to ensure that the corrective actions contained in the comprehensive fix are acceptable to the FAA.
A.6.1.1 Should investigation of the apparent violation result in the determination that no violation has occurred, the voluntary disclosure may be closed with an explanation in the provided comment box. When the user selects rescind, a warning is provided that rescinding the file will close the case and terminate the investigation. If the PHI confirms the rescission, the case is closed in VDRP on that date.
A.7 Stage 5: Implementation of a Comprehensive Fix and FAA Surveillance.
A. 7.1 Implementation Period. The implementation period begins when the FAA concurs with the operator's comprehensive fix. The operator will make changes to the proposed comprehensive fix when the operator or the FAA identifies a need for change.
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