[Federal Register Volume 67, Number 172 (Thursday, September 5, 2002)]
[Proposed Rules]
[Pages 56774-56776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22270]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 193

[Docket No. FAA-2002-13236]


Aviation Safety Action Programs

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Proposed Order Designating Information as Protected 
from Disclosure.

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SUMMARY: The FAA is proposing that information provided to the agency 
from a voluntary Aviation Safety Action Program (ASAP) be designated by 
an FAA order as protected from public disclosure in accordance with the 
provisions of 14 CFR part 193. Under 49 U.S.C. 40123, the FAA is 
required to protect the information from disclosure to the public, 
including disclosure under the Freedom of Information Act (5 U.S.C. 
552) or other laws, following issuance of such order. The designation 
is intended to encourage participation in the ASAP.

DATES: Comments must be received on or before October 7, 2002.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation Room Plaza 401, 400 Seventh St., SW., 
Washington, DC 20590-0001. You must identify the docket number FAA-
2002-13236 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that FAA 
received your comments, include a self-addressed, stamped postcard.
    You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to 
this proposed designation in person in the Dockets Office between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
Dockets Office is on the plaza level of the NASSIF Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov.

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.

SUPPLEMENTARY INFORMATION: 

Comments Invited

    Interested persons are invited to comment on the proposed 
designation by submitting such written data, views, or arguments as 
they may desire. Comments relating to the environmental, energy, 
federalism, or economic impact that might result from adopting the 
proposal in this notice are also invited. Substantive comments should 
be accompanied by cost estimates, where appropriate. Comments should 
identify the notice number and should be submitted in duplicate to the 
Rules Docket address specified above.
    All comments received, as well as a report summarizing each 
substantive public contact with FAA personnel concerning this proposed 
designation will be filed in the docket. The docket is available for 
public inspection before and after the comment closing date.
    All comments received on or before the closing date for comments 
specified will be considered by the Administrator before taking action 
on this proposed designations. Comments filed late will be considered 
as far as possible without incurring expense or delay. The proposal 
contained in this notice may be changed in light of comments received.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this notice must include a preaddressed, 
stamped postcard on which the following statement is made: ``Comments 
to the Docket No. FAA-2002-[INSERT DOCKET NUMBER].'' The postcard will 
be date stamped and mailed to the commenter.

Availability of This Proposed Designation

    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the FAA regulations section 
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339) or the Government Printing Office (GPO)'s electronic bulletin 
board service (telephone: 202-512-1661).
    Internet users may access the FAA's Web page containing this notice 
at http://www.faa.gov/avr/afs/asap or may go to the GPO's Web page at 
http://www.access.gpo.gov.nara for access to recently published 
notices.
    Any person may obtain a copy of this document by submitting a 
request to the Federal Aviation Administration, Air Transportation 
Division, AFS-200, 800 Independence Ave, SW., Washington, DC 20591, or 
by calling (202) 267-8166. Communications must identify the docket 
number and title of this designation.

Background

    Under 49 U.S.C. 40123, certain voluntarily provided safety and 
security information is protected from disclosure in order to encourage 
persons to provide the information to the FAA. The FAA must issue an 
order making certain findings before the information is protected from 
disclosure. The FAA's rules implementing that section are in 14 CFR 
part 193. If the Administrator issues an order designating information 
as protected under section 40123, 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 
designating the information as protected. This proposed order is issued 
under 14 CFR 193.11, which sets out the notice procedure for 
designating information as protected.

Description of the Proposed Information Sharing Program

    An Aviation Safety Action Program (ASAP) is entered into 
voluntarily through a Memorandum of Understanding (MOU) signed by the 
FAA, an air carrier or a repair station (referred to in this notice as 
``certificate holder''), and, if applicable, an employees' labor union. 
The intent of the program is to encourage defined groups of certificate 
holder employees to report possible violations, safety issues and 
events to an ASAP Event Review Committee (ERC) comprised of one 
representative from each such party. Because of its capacity to provide 
early identification of needed safety improvements, an ASAP offers 
significant potential for incident and accident avoidance. FAA 
experience to date has clearly established that an ASAP can produce 
safety-related data

[[Page 56775]]

that is not available from any other source. FAA limits enforcement 
actions it takes against employees covered by an ASAP to encourage them 
to report possible violations and safety problems. In order for a 
possible violation to be covered under an ASAP, the employee's ASAP 
report ordinarily must be submitted within a time limit specified in 
the MOU, any alleged violation must be inadvertent and must not appear 
to involve an intentional disregard for safety, and the reported event 
must not appear to involve criminal activity, substance abuse, 
controlled substances, alcohol, or intentional falsification. FAA 
policy and further details concerning the ASAP are addressed in 
Advisory Circular 120-66, Aviation Safety Action Programs, as amended 
(the advisory circular may be viewed and/or downloaded from the 
Internet at http://www.faa.gov/avr/afs/asap).
    For ASAP reports involving alleged violations, the ERC investigates 
to determine if independence information from FAA sources is available 
concerning the event (e.g. air traffic control tapes), and whether the 
reporting employee may have previously reported similar violations 
under the ASAP. Except for ASAP reports involving possible criminal 
activity, substance abuse, controlled substances, alcohol, or 
intentional falsification, this proposed designation would, if adopted, 
protect the content of all ASAP reports in the possession of the FAA 
from public disclosure. Similarly, any other information received by 
the FAA from the certification holder concerning the content of such 
ASAP reports, including for example statistical analyses, periodic 
program review reports, and trend information will be protected from 
disclosure under this designation, unless the certificate holder 
authorizes the FAA to disclose that information. Voluntarily provided 
information listed under paragraph B immediately below that is obtained 
during periodic FAA audits of ASAP, if any, will be protected from 
disclosure under this designation.

Summary of the ASAP Voluntary Information Sharing Program

    A. Who may participate: Certificate holders who have an ASAP and 
their employees.
    B. Except for ASAP reports involving possible criminal activity, 
substance abuse, controlled substances, alcohol, or intentional 
falsification, what voluntarily provided information would be protected 
from disclosure under this proposed designation:
    1. The content of an employee's ASAP report.
    2. The identity of the certificate holder associated with an ASAP 
report.
    3. The name of an employee submitting an ASAP report(s).
    4. The findings from other than FAA sources of an ERC investigation 
concerning an ASAP report.
    5. Evidence and other information gathered during an ERC 
investigation by other than FAA sources.
    6. Statistical analysis and trend information provided by the 
certificate holder based on events reported under a particular 
certificate holder's ASAP.
    7. A database of reports and events over time from a particular 
certificate holder's ASAP.
    C. How persons would participate: Certificate holders participate 
by executing an ASAP MOU with the FAA, and by voluntarily sharing 
information from the ASAP with the FAA. Employees covered under the 
ASAP MOU participate by submitting ASAP reports in accordance with that 
MOU.
    D. Duration of this information sharing program: This information 
sharing program would continue in effect for a given certificate holder 
until the associated ASAP MOU is terminated by any of the parties to 
the MOU, or until the order of designation for this program is 
withdrawn by the FAA.

Proposed Findings

    The FAA proposes to designate information received under an ASAP as 
protected under 49 U.S.C. 40123 and 14 CFR 193.7 based on the following 
findings:
    (1) Summary of why the FAA finds that the information will be 
provided voluntarily.
    The ASAP 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. The FAA anticipates that information from a 
certificate holder's ASAP will be shared with the FAA, because the 
voluntary establishment of an ASAP constitutes a partnership between 
the FAA and the certificate holder in the interest of achieving joint 
safety improvement goals.
    (2) 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.
    An ASAP is specifically created to provide a means for employees to 
report safety-related events. All individual 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: 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); and 
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). 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 event 
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.
    (3) Summary of why the 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. 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. Withholding such 
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

[[Page 56776]]

make the safety improvements that receipt of the information otherwise 
enables. While the FAA does not anticipate receiving ASAP reports for 
retention in FAA files or in 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 of perceived contributing factors for runway incursions 
(extracted from ASAP reports) could be beneficial to the FAA and to 
airlines in the development of corrective strategies to reduce the 
probability of such incidents.
    (4) 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. FAA 
experience to date has clearly established that an ASAP can produce 
safety-related data that is not available from any other source. For 
example, ASAP reports concerning runway incursions could potentially 
identify common causal factors in producing such incidents. Receipt of 
this hitherto unavailable information would provide the FAA with an 
improved basis for modifying procedures, policies, and regulations in 
order to improve safety and efficiency. It would also better permit the 
FAA to serve as a national safety information resource for certificate 
holders.
    (5) Summary of why withholding such information from disclosure 
would be consistent with the FAA's safety and security 
responsibilities, including a statement as to the circumstances under 
which, and a summary of why, withholding such information from 
disclosure would not be consistent with the FAA's safety and security 
responsibilities, as described in 14 CFR 193.9.
    The FAA finds that withholding ASAP information provided to the FAA 
is consistent with the FAA's safety responsibilities. ASAP specifically 
provides that corrective action will be taken when necessary. 
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. 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.
    The FAA will release information submitted under an ASAP as 
specified in part 193 and this proposed order. In order to explain the 
need for changes in FAA policies, procedures, and regulations, the FAA 
may disclose de-identified (i.e. the identity of the source of the 
information and the names of the certificate holder, the employee, and 
other persons redacted) summary information that has been extracted 
from reports under the ASAP. The FAA may disclose de-identified, 
summarized ASAP information that identifies a systemic problem in the 
aviation system, when other persons need to be advised of the problem 
so that they can take corrective action. The FAA may disclose de-
identified aggregate statistical information concerning ASAP 
activities. The FAA may disclose independently obtained information 
relating to any event disclosed in an ASAP report. The FAA will not 
release the content of an excluded ASAP report, unless that excluded 
report involves criminal activity, substance abuse, controlled 
substances, alcohol, or intentional falsification, in which case it 
would be contrary to public safety not to disclose such information, 
because of the egregious nature of such events. The FAA may release the 
content of ASAP MOU's, including identification of the signatories on 
such MOUs.
    (6) Summary of how the FAA will distinguish information protected 
under part 193 from information the FAA receives from other sources.
    All employees ASAP reports are clearly labeled as such, and either 
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. 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. 40123 and 14 
CFR part 193.''

Proposed Designation

    Accordingly, the Federal Aviation Administration hereby proposes to 
designate the above-described information submitted under an ASAP to be 
protected under 49 U.S.C. 40123 and 14 CFR part 193.

    Issued in Washington, DC, on August 14, 2002.
Nicholas A. Sabatini,
Associate Administrator for Regulation and Certification.
[FR Doc. 02-22270 Filed 9-4-02; 8:45 am]
BILLING CODE 4910-13-M