Voluntary Disclosure Reporting Program Gets Extended to Drug and Alcohol Programs, Unless…

The Federal Aviation Administration relies heavily on voluntary compliance with its regulations.  As part of its strategy, the FAA encourages regulated entities to participate in voluntary disclosure reporting programs (VDRP) to ensure that sporadic issues do not become systemic problems.  The idea is that if an employer detects a problem and takes immediate, strong corrective action, the FAA will forgo issuing a civil penalty for the violation.

The FAA just recently issued a new Advisory Circular (AC 120-117) that details how regulated entities may take advantage of the VDRP for violations of the drug and alcohol testing regulations contained in 14 CFR Part 120.  In order to qualify, the following conditions must be met:

  1. The FAA must be notified.  The notification should be made within 24 hours and before the FAA learns of the apparent violation by other means.
  2. The violation must be inadvertent. The apparent violation was the result of inattention and did not result from a purposeful choice.
  3. The violation cannot reflect a lack of qualification. The apparent violation does not indicate a lack, or reasonable question of, an employer’s or contractor’s qualification to hold a certificate, letter of authorization, or program registration.
  4. Immediate action satisfactory to the FAA must be taken. The employer or contractor took immediate action upon discovery to terminate the conduct that resulted in the apparent violation.
  5. A comprehensive fix must be developed. The employer must develop a fix for the problem, establish a schedule for implementation, and put in place a system of self-audits to ensure the fix is effective.

The AC provides details on the format for the submission and additional information that should be included, such as a description of the violations, an estimate for how long the problem has been ongoing, when and how it was discovered, verification that the non-compliance has stopped, and what was done to stop it.

After the initial disclosure is made and the FAA acknowledges receipt, the employer has 10 business days to submit the detailed description of the comprehensive fix and the schedule for implementation. The FAA will then make a determination whether to accept or reject the disclosure and issue a written decision stating the reasons for the action.  If the submission is deficient and is rejected, the FAA can begin full enforcement proceedings against the persons involved.

The most important take away from the Advisory Circular is that when a problem is detected, time is of the essence.  Any disclosure made more than 24 hours after it is discovered does not have to be accepted by the FAA, and the submission must have a detailed explanation for the delay to even be considered.  As a result, it is of vital importance that all personnel in the company who are involved in compliance be aware of the VDRP and the actions that must be taken immediately to protect the company.

If you have additional questions regarding implementation of the VDRP, contact either Mark McKinnon, mark.mckinnon@leclairryan.com or Allan Horowitz, allan.horowitz@leclairryan.com.

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