[Federal Register Volume 68, Number 181 (Thursday, September 18, 2003)]
[Notices]
[Pages 54767-54771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23769]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 
[email protected].

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]
BILLING CODE 4910-13-M