[Federal Register: September 18, 2003 (Volume 68, Number 181)]
[Notices]
[Page 54767-54771]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se03-93]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2002-13236]
Aviation Safety Action Program (ASAP)
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of order designating ASAP information as protected from
public disclosure under 14 CFR part 193.
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SUMMARY: Federal Aviation Administration (FAA) Order 8000.82 designates
information provided to the agency from a voluntary Aviation Safety
Action Program (ASAP) as protected from public disclosure, including
disclosure under the Freedom of Information Act or other laws. This
designation is intended to encourage participation in the ASAP and
wider sharing of ASAP information with the FAA. FAA Order 8000.82 is
published in the Federal Register in accordance with 14 CFR part 193.
DATES: FAA Order 8000.82 became effective on September 3, 2003.
FOR FURTHER INFORMATION CONTACT: Dr. Thomas Longridge, Flight Standards
Service, AFS-230, Federal Aviation Administration, 800 Independence
Ave, SW., Washington DC 20591, telephone (703) 661-0275. e-mail
Thomas.Longridge@faa.gov.
SUPPLEMENTARY INFORMATION:
Authority: 49 U.S.C. 40123; 14 CFR part 193.
Background
Under Title 49 of the United States Code (49 U.S.C.) section 40123,
certain voluntarily provided safety and security information is
protected from disclosure in order to encourage persons to provide the
information to the Federal Aviation Administration. The FAA must first
find that the information should be protected under the terms of
section 40123. The FAA's rules for implementing section 40123 are in 14
CFR part 193. If the FAA issues an order designating information as
protected, that information will not be disclosed under the Freedom of
Information Act (5 U.S.C. 552) or other laws, except as provided in
section 40123, part 193, and the order that designates the information
as protected. This FAA order for ASAP is issued under 14 CFR 193.11,
which sets forth the notice procedure for designating information as
protected.
A notice of proposed order designating ASAP information as
protected from disclosure was published in 67 FR 56774 on September 5,
2002. In response to the notice, comments were received by the FAA.
Appendix 1 of Order 8000.82 summarizes those comments and provides the
FAA responses. The order includes some changes from the proposed order
to reflect some of those comments. In addition, the order includes
changes for clarity, to ensure compliance with part 193, and to ensure
conformity with FAA Advisory Circular 120-66B, which governs ASAP.
Issued in Washington, DC, on September 10, 2003.
Nicholas A. Sabatini,
Associate Administrator for Regulation and Certification.
FAA Order 8000.82--Designation of Aviation Safety Action Program (ASAP)
Information as Protected From Public Disclosure Under 14 CFR Part 193
1. Purpose. This order designates information received by the
agency from an Aviation Safety Action Program (ASAP) as protected
from public disclosure in accordance with the provisions of title 14
of the Code of Federal Regulations (14 CFR) part 193.
2. Distribution. This order is distributed to the branch level
in the Washington headquarters Flight Standards Service; Aviation
System Standards, all Regional Administrators; to the Directors of
the Mike Monroney Aeronautical Center and the Europe, Africa, and
Middle East area Office; to the Regulatory Standards Division at the
FAA Academy; to the branch level in the regional Flight Standards
Divisions; to all Flight Standards District Offices; to all
International and Aeronautical Quality Assurance Field Offices; to
all Flight Standards Certificate Management Offices; and to all
Aircraft Evaluation Groups.
3. Background. Under Title 49 of the United States Code (49
U.S.C.), section 40123, certain voluntarily provided safety and
security information is protected from disclosure in order to
encourage persons to provide the information to the Federal Aviation
Administration (FAA). The FAA must first issue an order that
specifies why the agency finds that the information should be
protected in accordance with 49 U.S.C., section 40123. The FAA's
rules for implementing that section are in 14 CFR part 193. If the
Administrator issues an order designating information as protected
under 49 U.S.C., section 40123, that information will not be
disclosed under the Freedom of Information Act (Title 5 of the
United States Code (5 U.S.C.), section 552) or other laws,
[[Page 54768]]
except as provided in 49 U.S.C. section 40123, 14 CFR part 193, and
the order designating the information as protected. This order is
issued under part 193, section 193.11, which sets out the notice
procedure for designating information as protected.
4. Applicability. This order is applicable to any FAA office
that receives information covered under this designation from an
ASAP program. The order also is applicable to any other government
agency that received such information from the FAA. In order for any
other government agency to receive ASAP information covered under
this designation from the FAA, each such agency must first
stipulate, in writing, that it will abide by the provisions of part
193 and this order.
5. Summary of the ASAP Voluntary Information Sharing Program.
a. Who may participate? Certificate holders who have an FAA-
accepted ASAP, and their covered employees.
b. What voluntarily provided information would be protected from
disclosure under this proposed designation? Except for ASAP reports
that involve possible criminal activity, substance abuse, controlled
substances, alcohol, or intentional falsification, the following
information would be protected from disclosure when provided in the
FAA.
(1) The employee's ASAP report, and the content of that report.
(2) The identity of the certificate holder associated with an
accepted ASAP report.
(3) The name of the employee who submits an accepted ASAP
report(s).
(4) The information from sources other than the FAA of an Event
Review Committee (ERC) investigation concerning an accepted ASAP
report.
(5) Evidence and other information gathered during an ERC
investigation by persons other than the FAA.
(6) Statistical analysis and trend information provided by the
certificate holder that is based on events reported under a
particular certificate holder's ASAP.
(7) A certificate holder's database of reports and events
collected over time from that certificate holder's ASAP.
(8) Corrective action on sole source reports when such
corrective action is successfully completed.
Note: The type of information or circumstances under which the
information listed above would not be protected from disclosure is
discussed in paragraph 6e(2) of this order.
c. How do you participate? Certificate holders participate by
executing an ASAP memorandum of understanding (MOU) with the FAA and
by voluntarily sharing information from the ASAP with the FAA.
d. What is the duration of this information-sharing programs?
This information-sharing program continues for a given certificate
holder until the associated ASAP MOU is terminated by any of the
parties to the MOU.
6. Findings. The FAA designates information received from an
accepted ASAP as protected under 49 U.S.C., section 40123 and part
193, section 193.7, based on the following findings.
a. Summary of why the FAA finds that the information will be
provided voluntarily. The FAA finds that the information will be
provided voluntarily. No certificate holder is required to
participate in ASAP, and no employee is required to submit reports
even if his or her employer participates in ASAP. An ASAP MOU may be
terminated at any time by any of the parties to the MOU. Besides
access by the FAA ERC representative, the FAA anticipates that
information from a certificate holder's ASAP will be more widely
shared with the FAA because the voluntary establishment of an ASAP
constitutes a partnership between the FAA and certificate holder in
the interest of achieving joint safety improvement goals.
b. Description of the type of information that may be
voluntarily provided under the program and a summary of why the FAA
finds that the information is safety- or security-related.
(1) An ASAP is created specifically to provide a means for
employees to report safety-related events. All individuals ASAP
reports are clearly labeled as such and must be signed by each
employee seeking the enforcement incentives available under an ASAP.
Two types of reports are ordinarily submitted under the ASAP:
[sbull] Safety-related reports that appear to involve one or
more violations of the regulations (e.g., deviating from an Air
Traffic Control (ATC)-assigned altitude)
[sbull] Reports that identify a general safety concern, but do
not appear to involve a violation of the regulations (e.g., flight
crewmember concerns that the design of a flight checklist could lead
to an error)
(2) Each ASAP report must contain sufficiently detailed
information about a safety event so that it can be evaluated by a
third party. If the report is submitted by a flight crewmember, and
the safety even involves a deviation from an ATC clearance, the ASAP
report would include the date, time, place, altitude, flight number,
and ATC frequency, along with a description of the safety-related
event. The only types of reports that are expected to be submitted
under an ASAP are those that are safety- or security-related.
c. Summary of why FAA finds that the disclosure of the
information would inhibit persons from voluntarily providing that
type of information. The FAA finds that disclosure of the
information would inhibit the voluntary provision of that type of
information. Certificate holders and their employees are reluctant
to share sensitive safety information with the FAA, including
employee self-reports of alleged violations, if such submissions
might be subject to public disclosure.
(1) A significant impediment to the sharing of ASAP information
with the FAA is the aviation industry's concern over public
disclosure of the information, and, if disclosed, the potential for
it to be used for other than the safety enhancement purposes for
which the ASAP was created. As a result, certificate holders have
not permitted ASAP reports and related information to leave the
certificate holder's premises, and, except for ASAP information made
available for review by the FAA ERC representative at the
certificate holder's place of business, no ASAP information is
presently submitted to the FAA. This information is considered to be
confidential by the participating certificate holders and their
employees who are involved in the program.
(2) While the FAA does not anticipate receiving ASAP reports for
retention in FAA files or an FAA database, the FAA believes that the
extraction and submission of certain categories of information from
such reports for trending purposes could benefit safety. For
example, an FAA database or perceived contributing factors for
runway incursions (extracted from ASAP reports) could be beneficial
to the FAA and airlines in the development of corrective strategies
to reduce the probability of such incidents.
d. Summary of why the receipt of that type of information aids
in fulfilling the FAA's safety and security responsibilities. The
FAA finds that receipt of ASAP information aids in fulfilling the
FAA's safety and security responsibilities. Because of its capacity
to provide early identification of needed safety improvements, an
ASAP offers significant potential for incident and accident
avoidance. Currently, FAA experience has clearly established that an
ASAP can produce safety-related data that is not available form any
other source. For example, ASAP reports concerning altitude
deviations have identified common casual factors in producing such
incidents. Receipt of this previously unavailable information has
provided the FAA with an improved basis for modifying procedures,
policies, and regulations in order to improve safety and efficiency.
e. Consistencies and inconsistencies with FAA safety and
security responsibilities. The FAA finds that withholding ASAP
information provided to be FAA is consistent with the FAA's safety
responsibilities. ASAP specifically provides that corrective action
will be taken when necessary.
(1) Withholding ASAP information from disclosure is consistent
with the FAA's safety and security responsibilities because, unless
the FAA can provide assurance that it will not be disclosed, the FAA
will not receive the information. If the FAA does not receive the
information, the FAA and the public will be deprived of the
opportunity to make safety improvements that receipt of the
information otherwise enables. Corrective action under ASAP can be
accomplished without disclosure of protected information. For
example, for acceptance under the ASAP, the reporting employee must
comply with ERC recommendations for corrective action, such as
additional training for an employee. If the employee fails to
complete corrective action in a manner satisfactory to all members
of the ERC, the ASAP event will be referred to an appropriate office
within the FAA for any additional investigation, reexamination, and/
or enforcement action, as appropriate.
(2) The FAA will release ASAP information submitted to the
agency, as specified in part 193 and this order. For example, in
order to explain the need for changes in FAA policies, procedures,
and regulations, the FAA may disclose de-identified (no operator or
employee identity), summarized information that has been derived
from ASAP information or extracted from the protected information
listed under
[[Page 54769]]
paragraph 5b. The FAA may disclose de-identified, summarized ASAP
information that identifies a systemic problem in the aviation
system, when other people need to be advised of the problem in order
to take corrective action. The FAA may release the name of an air
carrier or repair station that has an ASAP that has been accepted by
the FAA. Under the current version of Advisory Circular (AC) 120-66,
Aviation Safety Action Program (ASAP), reported events and possible
violations may be referred to the FAA for appropriate action,
including investigation, reexamination, and/or enforcement action.
Although the report itself and the content of the report are not
used as evidence, the FAA may use the knowledge of the event or
possible violation to generate a separate investigation, and, in
that regard, the information is not protected from disclosure. To
withhold information from such limited release would be inconsistent
with the FAA's safety responsibilities because the limited
situations in which this is done do not involve matters that are
covered by ASAP. In addition, 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, if appropriate. To withhold information in
these circumstances would be inconsistent with the agency's safety
responsibilities because it could prevent the agency, or at least
diminish its ability, to effectively address such egregious
misconduct.
f. Summary of how the FAA will distinguish information protected
under part 193 from information the FAA receives from other sources.
(1) All employee ASAP reports are clearly labeled as such. A
single report must be signed by all employees seeking the
enforcement incentives available under an ASAP for the event, or
each such employee must submit a separate signed report.
(2) Any other information received by the FAA from the
certificate holder concerning the content of ASAP reports, except
for ASAP reports involving possible criminal activity, substance
abuse, controlled substances, alcohol, or intentional falsification
(such as statistical analyses, program review reports, and trend
information), must be clearly labeled as follows in order to be
protected under this designation:
Warning: The information in this document may be protected from
disclosure under 49 U.S.C., section 40123 and 14 CFR part 193.
7. Designation. The FAA designates the information described in
paragraph 5b to be protected from disclosure in accordance with 49
U.S.C., section 40123, and 14 CFR part 193, when submitted pursuant
to an accepted ASAP.
Nicholas A. Sabatini,
Associate Administrator for Regulation and Certification.
Appendix 1.--Summary of Significant Comments Received and the FAA's
Response
A proposed Federal Aviation Administration (FAA) order
designating Aviation Safety Action Program (ASAP) information as
protected from disclosure under Title 14 of the Code of Federal
Regulations (14 CFR) part 193 was published in the Federal Register
on September 5, 2002 (Federal Register, Volume 67, Number 172, pages
56774-56776). Comments were received from four commenters, including
one major airline trade association and one major pilots labor
association. These comments and the FAA responses are as follows:
(1) The information may already be available to the public
through the National Aeronautics and Space Administration (NASA)
Aviation Safety Reporting Program (ASRS).
(a) Comment. If ASAP reports are sent to the NASA ASRS as part
of an ASAP program, it would render moot any attempt by the FAA to
keep information private. Therefore, if operators share this
information with NASA, thereby voluntarily making it public
information, any attempt by the FAA to protect the information would
be a waste of time. I do not feel there is a need to adopt the
proposed order.
(b) The FAA Response. While it is certainly the case that most
ASAP Memorandums of Understanding (MOU) include provisions for
submitting events reported under ASAP to the NASA ASRS, this
circumstance does not preclude the need to protect the information
specified in this order from public disclosure. All information that
could be used to derive the identity of the submitting pilot is
removed from an ASRS report before it is entered into the ASRS
database, whereas only the employee name is redacted from an ASAP
report entered into an ASAP database. In addition, the information
protected under this order includes evidence and other information
gathered during an Event Review Committee (ERC) investigation by
persons other than the FAA that is not obtained by the ASRS. Unlike
ASAP, ASRS does not include such followup information on individual
events reported under that program.
(2) ASAP MOU content and signatories should not be disclosed.
(a) Comment. The content of ASAP MOUs and signatories to these
MOUs should not be disclosed. While acknowledging the existence of
an ASAP MOU is not problematic, ASAP programs are highly
confidential and, at times, have been the subject of discovery
disputes in civil litigation. Furthermore, it is very likely the
MOUs will contain information about ASAP programs that operators
would keep confidential under normal circumstances. For these
reasons, we urge the FAA to determine that it will not release or
disclose the content of MOUs, including the identification of the
signatories. The public does not have a need to know exactly who
signs an MOU on behalf of an operator. An identification of that
person could lead to unwanted public inquiries.
(b) The FAA Response. The FAA does not agree that ASAP MOUs
should contain information that operators would keep confidential
under normal circumstances. The appropriate content of an ASAP MOU
is fully described in FAA advisory materials available to the
public. Certainly there is nothing in those advisory materials that
would require or recommend inclusion of confidential information in
the MOU. Because it involves an agreement by the FAA to take lesser
enforcement action than might otherwise be taken for alleged
violations of 14 CFR (when voluntarily reported by an employee in
accordance with the ASAP MOU), the public has a right to know the
provisions of the MOU on which basis the FAA has modified its
enforcement policy for a particular operator and employee group.
Similarly, since this modified enforcement policy does not take
effect until an ASAP MOU is signed by an authorized representative
of each party to the MOU, it is not appropriate for the identities
of such signatories to be withheld from public disclosure.
Use of the term ``information-sharing program'' is not accurate.
(a) Comment. Two commenters took exception to the
characterization of ASAP programs in the notice as ``information-
sharing program''. One commenter stated that these characterizations
are not quite accurate since they would suggest that a formal ASAP
information-sharing program exists. The commenter states that is not
the case. The commenter notes that the process by which the industry
will share ASAP information with the FAA is evolving through the
efforts of the ASAP Aviation Rulemaking Committee (ARC) and the
combined ASAP/Flight Operation Quality Assurance (FOQA) Information-
Sharing Subcommittee. For this reason, the commenter recommends that
the FAA delete the phrase ``information-sharing program'' from the
final order. The commenter states that it is not necessary to
characterize the ASAP as an information-sharing program at all. The
goal of ASAP is to prevent accidents. The means by which certificate
holders share information is ancillary to the corrective and
preventative action process. The second commenter stated that
although not adverse to a formal ASAP information-sharing program,
such a program should be developed and implemented through the ASAP
ARC.
(b) The FAA Response. As employed in this order, use of the
phrase ``information-sharing program'' simply refers to ASAP
information that is voluntarily provided to the FAA. The order would
provide protection from disclosure of the information specified in
paragraph 5b herein, regardless of the means of submission,
including any such means to be developed for ASAP in the future
through the efforts of the ASAP ARC and the combined ASAP/FOQA
Information-Sharing Subcommittee. The FAA notes that ASAP
information is already being shared with the FAA by virtue of the
participation of an FAA representative on every ASAP ERC for every
existing such program. The present order would extend part 193
protection to such information as specified.
[[Page 54770]]
(4) The current ASAP process does not provide for the FAA to
take possession of individual ASAP reports.
(a) Comment. The current process does not provide for the FAA to
take possession of individual ASAP reports, except for those reports
that are excluded from the program for criminal activity, substance
abuse, controlled substances, alcohol, or intentional falsification.
Additionally, the current version of Advisory Circular (AC) 120-66,
Aviation Safety Action Program (ASAP) expressly prohibits the FAA
from using either the report or the content of the report for
enforcement action. The commenter states that, therefore, all
references to ``ASAP reports that are in the possession of the FAA''
should be replaced with ``aggregate ASAP trend information in
possession of the FAA.''
(b) The FAA Response. The FAA does not concur. The intent of
this order is to protect sensitive information that may be obtained
by the FAA from an ASAP, including an ASAP report, from disclosure.
This order does not establish any submission requirements for such
information or reports. However, if the information or reports
specified in paragraph 5b of this order are obtained by the FAA,
they will be protected in accordance with part 193 and this order.
As was stated in the notice of proposed designation, the FAA does
not anticipate receiving ASAP reports for retention in FAA files or
in an FAA database. However,if under any circumstances, the FAA
finds itself in possession of an ASAP report, it will be protected
from disclosure, as specified in part 193 and this order. For
example, if in the course of accomplishing the duties and
responsibilities of membership in an ASAP ERC, the FAA
representative of that committee is temporarily in possession of a
de-identified ASAP report, that report will be protected from
disclosure in accordance with part 193 and this order. The FAA
believes that the goals of the ASAP are best served by extending
disclosure protection to both individual ASAP and certain trend
information, as specified in paragraph 5b of this order. To better
emphasize that it is the FAA's intent to protect ASAP reports from
disclosure, the wording of paragraph 5b(1) of this order has been
modified to specify that both the ``employee's ASAP report and the
content of that report'' will be protected under part 193 and this
order.
(5) There are other possibilities for a national safety
information resource besides the FAA.
(a) Comment. We do not know what is meant by the last sentence
under Proposed Findings (4) in the notice, ``it would also permit
the FAA to serve as a national safety-information resource for
certificate holders.'' There are already other possibilities for
this endeavor, such as the Air Transportation Association's Aviation
Safety Exchange System or the NASA ASRS. Most importantly, the FAA,
through the ASAP programs in place, currently has access to ASAP
reports on a periodic basis during the ERC meetings. During this
process, the FAA helps identify safety issues, develops corrective
actions, and monitors the success of these corrective actions during
subsequent ASAP reports reviews. Therefore, additional ASAP
information submission to the FAA should be in aggregate form in
order to support the identification and correction of National
Airspace safety issues. Therefore, a statement in the paragraph
describing the proposed data-sharing program should describe this
concept.
(b) The FAA Response. This order does not establish requirements
for ASAP information submissions to the FAA. Rather, it establishes
part 193 disclosure protection for the ASAP information specified in
paragraph 5b of this order. The FAA concurs with the commenter that
additional ASAP information submissions to the FAA, beyond the
sharing that already occurs in association with FAA membership on an
ASAP ERC, should be in aggregate form in order to support the
identification and correction of National Airspace safety issues.
This order would provide part 193 protection for such aggregate
information submitted to the FAA, except as described in paragraph
6e(2). In view of that protection, the FAA concurs with the
commenter that the sentence from the notice that reads, ``It would
also permit the FAA to serve as a national safety information
resource for certificate holders,'' is inappropriate. While such
aggregated information could serve as a national resource for the
FAA to monitor the identification and correction of safety trends,
it would not serve as a national information resource in the same
sense as the NASA ASRS or other potential national repositories
because the aggregate ASAP information at the FAA would be subject
to the disclosure protections of part 193 and this order. The
sentence has therefore been deleted from this order. In view of that
deletion, a description of the proposed data-sharing national
resource program, as requested by the commenter, is not needed.
(6) The FAA's proposal is not properly within the scope of 49
U.S.C., section 40123.
(a) Comment. The effect of this order would be the designation
of information provided to the agency from an ASAP as protected from
public disclosure under 14 CFR part 193 and 49 U.S.C., section
40123. However, the FAA's proposal is not properly within the scope
of that section of the U.S.C. In the Notice of Proposed Order, the
FAA represents that certificate holders have not permitted ASAP
reports and related information to leave the certificate holder's
premises due to their concerns over public disclosure. But under
ASAP, the voluntary submitter of the information is not the
certificate holder. Rather, the employee of the certificate holder
is the submitter, and the protections afforded by 49 U.S.C., section
40123 and 14 CFR part 193 run to the employee submitting information
under the program, not to the certificate holder. The idea here is
to avoid inhibiting the employee that has a desire to report under
ASAP, not to protect the certificate holder. It is not the case that
this order is needed in order to encourage submission of ASAP
reports by employees, since such reports are in fact already being
submitted. Although the certificate holders may obstruct the flow of
these reports to the FAA, such obstruction is not the same thing as
inhibiting the voluntary submission of the reports in the first
place. A certificate holder who is afforded protection for a report
submitted by an employee will have received a benefit to which it is
not entitled. Such a certificate holder has hijacked the process and
is using its physical control over a properly submitted ASAP report
to extort compliance from the FAA. Should the FAA submit to the
demands of the certificate holders, its action will all but
foreclose the flow of this incredibly useful information into the
aviation community and endanger the viability of other aviation
safety-related resources. The failure of certificate holders to
provide the reported information to the FAA is simply wrong, and the
acquiescence of the FAA in extending protection to those certificate
holders in return for the information shows only complicity.
(b) The FAA Response. As is discussed in the preamble to part
193 (Federal Register, volume 66, number 122, pages 33792-33805)
regarding the FAA's implementation through rulemaking of 49 U.S.C.,
section 40123, a major goal of the law and part 193 regulation is to
address air carrier concerns about voluntarily allowing information
to be released from their premises to the FAA that could be subject
to disclosure under the Freedom of Information Act or other laws.
The rationale for protecting safety-related information voluntarily
provided to the FAA, including in particular ASAP information
obtained by the certificate holder, is specifically discussed in
that preamble. The public law and part 193 are broadly applicable to
any voluntarily provided safety- or security-related information, if
the Administrator finds that its disclosure would inhibit the
voluntary provision of that type of information and its receipt aids
in fulfilling the Administrator's safety and security
responsibilities. It is clear that the wording of 49 U.S.C., section
40123 is intended to apply to information that is provided to the
FAA. The commenter's observation that ASAP reports are already
voluntarily provided to the certificate holder is not the issue. In
order for the FAA to employ ASAP information for safety improvement,
it must receive that information from certificate holders. The FAA
has determined that without the disclosure protections provided
under part 193 and this order, certificate holders will not
voluntarily release ASAP information from their premises to the FAA.
Unless the FAA receives that information, it cannot be aggregated
from multiple carriers for FAA safety tracking purposes at a
national level.
(7) A part 193 designation for ASAP would inhibit future
submissions under the NASA ASRS.
(a) Comment. Our greatest fear is that, as an adjunct to
``protecting'' ASAP data, the FAA will stop the flow of ASAP
information into the ASRS database. This would be a tragedy.
Although employees of certificate holders are free to file under
both ASAP and ASRS programs, the likelihood of such dual filings,
especially given the certificate holder's distaste for the
dissemination of this kind of information, is exceedingly rare.
Safety information needs to be shared, and the aviation community
needs to be able to have access to useful data.
[[Page 54771]]
(b) The FAA Response. The FAA is a strong supporter of ASRS
(both conceptually and financially), and does not intend or expect
that this part 193 designation for ASAP will negatively impact the
NASA program. Nearly all ASAPs entail the submission of a NASA ASRS
report as a standard procedure whenever an ASAP report involves
possible noncompliance with the regulations. These NASA ASRS
submissions are made either by the company on behalf of the ASAP
reporting pilot or by the pilot himself. The FAA believes that this
will continue to occur because ASRS can provide the submitter with
eligibility for a waiver of the imposition of sanction from FAA
enforcement action in the event that an ASAP report is excluded from
the program. Since at the time of submission of an ASAP report, a
pilot cannot know with certainty whether an ASAP ERC will determine
that the report should be accepted under ASAP, there is a strong
incentive for air carrier pilots to continue to submit reports to
both programs. The FAA does not agree that extending part 193
protection to ASAP will stop the flow of useful information into the
NASA ASRS. Rather, the FAA anticipates that establishing part 193
protection for ASAP will have the opposite effect. It will increase
industry participation in ASAP, thereby also increasing the
reporting of events under the NASA ASRS. At the same time, it will
allow the FAA to obtain the more detailed information on specific
events and their followup that occurs under an ASAP, but cannot
occur under the ASRS, due to the requirement to de-identify the data
so thoroughly. ASRS will continue to serve as a valuable source to
the aviation community of thoroughly de-identified safety-related
information.
(8) FAA should not protect the content of an ASAP report once
the identity of the employee and certificate holder have been
redacted.
(a) Comment. We object to protecting the content of an
employee's ASAP report. We believe the FAA has failed to articulate
a convincing case for protecting the entire content of an employee's
ASAP report when ``sanitization'' is all that is called for to
afford the protection that the FAA claims is required. In short, why
withhold the entire content of the ASAP report when simply
withholding the identity of the employee and the certificate holder
would eliminate the problems described by the FAA?
(b) The FAA Response. In order to protect the identity of the
employee who has submitted an accepted ASAP report, and that of the
certificate holder, more than simply removing the identities of each
is required. For example, reports entered into the ASRS database
also entail removing information on make, model, and series of
aircraft, airport city pair information, and any other specific
information that might potentially enable a third party to derive
identity information. Because of the thoroughness with which ASRS
has removed all information that might enable identification of the
employee or certificate holder, the ASRS has been effective in
establishing a high level of trust with the aviation community that
identity information would be protected. In contrast, the value of
ASAP for safety enhancement lies in its capacity to retain specific
information on individual events, including, for example, specific
information on aircraft make, model, and series. In addition, an
ASAP requires that the ERC determine whether corrective action is
required to resolve a safety issue associated with an individual
report. If so, the employee must complete that corrective action to
the satisfaction of all members of the ERC, or the report will be
excluded from the program. For this reason, this order protects not
only the actual report and the content of the report, but also the
information gathered during an ERC investigation by persons other
than the FAA, and a certificate holder's database of reports and
events collected over time. While the ASRS achieves protection of
identity information by a thorough process of ``sanitization,'' the
FAA seeks through this order of designation under part 193 to enable
it to access the more specific information on safety-related events
and their followup than is available through ASRS. The FAA believes
that the public interest in aviation safety enhancement is better
served by enabling the acquisition through ASAP of specific
information on safety-related events and their resolution and the
protection from disclosure of that information under part 193. The
FAA also believes that extending this protection to ASAP is clearly
consistent with the intent of Congress in enacting 49 U.S.C.,
section 41023.
[FR Doc. 03-23769 Filed 9-17-03; 8:45 am]
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