[Federal Register Volume 78, Number 139 (Friday, July 19, 2013)]
[Proposed Rules]
[Pages 43091-43093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17401]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 78, No. 139 / Friday, July 19, 2013 / 
Proposed Rules  

[[Page 43091]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 193

[Docket No.: FAA-2013-0375]


Technical Operations Safety Action Program (T-SAP) and Air 
Traffic Safety Action Program (ATSAP)

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

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

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SUMMARY: The FAA is proposing that safety information provided to it 
under the T-SAP, established in Notice JO 7210.807 which will be 
incorporated in FAA Order JO 7200.20, Voluntary Safety Reporting 
Programs, and ATSAP, covered by FAA Order JO 7200.20, be designated by 
an FAA Order as protected from public disclosure in accordance with the 
provisions of 14 CFR part 193, Protection of Voluntarily Submitted 
Information. The designation is intended to encourage persons to 
voluntarily provide information to the FAA under the T-SAP and ATSAP, 
so the FAA can learn about and address aviation safety hazards of which 
it was unaware or more fully understand and implement corrective 
measures for events or safety issues known by it through other means. 
Under 49 U.S.C. 40123, Protection of Voluntarily Submitted Information, 
the FAA is required to protect information from disclosure to the 
public, including disclosure under the Freedom of Information Act (5 
U.S.C. 552) or other laws, following the issuance of such Order.

DATES: Comments must be received on or before August 19, 2013.

ADDRESSES: You may send comments identified by docket number FAA-2013-
0375 using any of the following methods: via mail to U.S. Department of 
Transportation, Docket Operations, M-30, 1200 New Jersey Avenue SE., 
West Building Ground Floor, Room W12-140, Washington DC 20590-0339; 
telephone (202) 366-9826. You must identify the FAA Docket No. FAA-
2013-3075 at the beginning of your comments. You may also submit 
comments through this Web site at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Lisbeth Mack--Group Manager, ATO 
Safety Programs, Federal Aviation Administration, 490 L'Enfant Plaza, 
Suite 7200, Washington DC 20024 or via email at [email protected] or 
phone at 202-385-4757.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed 
rulemaking by submitting such written data, views, or arguments, as 
they may desire. Comments that provide the factual basis supporting the 
views and suggestions presented are particularly helpful in developing 
reasoned regulatory decisions on the proposal. Comments are 
specifically invited on the overall regulatory, aeronautical, economic, 
environmental, and energy-related aspects of the proposal.
    Communications should identify docket number FAA 2013-0375 and be 
submitted in triplicate to the Docket Management System (see ADDRESSES 
section for address and phone number). Commenters wishing the FAA to 
acknowledge receipt of their comments on this action must submit with 
those comments a self-addressed stamped postcard on which the following 
statement is made: ``Comments to FAA Docket No. FAA-2013-0375''. The 
postcard will be date/time stamped and returned to the commenter.
    All communications received on or before the specified closing date 
for comments will be considered before taking action on the proposed 
Order. The proposal contained in this action may be changed in light of 
comments received. All comments submitted will be available for 
examination in the public docket both before and after the closing date 
for comments. A report summarizing each substantive public contact with 
FAA personnel concerned with this rulemaking will be filed in the 
docket.

Availability of This Proposed Designation

    You may review the public docket containing the proposal, any 
comments received, and any final disposition in person in the Dockets 
Office (see the ADDRESSES section for the address and phone number) 
between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal 
holidays. An electronic copy of this document may be downloaded through 
the Internet at http://www.regulations.gov. Recently published rule-
making documents can also be accessed through the FAA's Web site at 
http://www.faa.gov/airports_airtraffic/air_traffic/publications.

1. 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. 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. 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. 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, except as 
provided in 49 U.S.C. 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.

2. Applicability

    This proposed designation is applicable to any FAA office that 
receives information covered under this designation from T-SAP, 
established in Notice JO 7210.807, and which will be incorporated in 
FAA Order JO 7200.20, Voluntary Safety Reporting Programs, or the ATSAP 
described in FAA Order JO 7200.20. The proposed designation would also 
apply to any other government agency that receives such information 
from the FAA. For any other government agency to receive T-SAP or ATSAP 
information covered under the proposed designation from the FAA, each 
such agency must first

[[Page 43092]]

stipulate, in writing, that it will abide by the provisions of part 193 
and the Order designating T-SAP and ATSAP as protected from public 
disclosure under 14 CFR part 193.

3. Overview

    a. Qualified Participants. Technical Operations employees who are 
covered under the collective bargaining agreement (CBA) between PASS 
and the FAA effective December 14, 2012, or its successor, and other 
employees identified in Notice JO 7210.807, which will be incorporated 
in Order JO 7200.20, are eligible to complete a T-SAP report for events 
that occur while acting in that capacity. Air Traffic employees who are 
covered under the CBA between NATCA and the FAA effective October 1, 
2009 or its successor, Staff Support Specialists covered under the CBA 
between NATCA and FAA effective August 1, 2010 or its successor, Flight 
Services personnel covered under the CBA between NATCA and the FAA 
effective June 5, 2011, or its successor, employees covered under the 
CBA between NAGE Local R3-10 and the FAA dated May 24, 2007 or its 
successor, and others identified in FAA Order JO 7200.20 are eligible 
to file an ATSAP report for events that occur while acting in that 
capacity.
    b. Voluntarily-provided Information Protected from Disclosure Under 
the Proposed Designation. Except for T-SAP or ATSAP reports that 
involve possible criminal conduct, substance abuse, controlled 
substances, alcohol, or intentional falsification, the following 
information would be protected from disclosure:
    (1) The content of any report concerning an aviation safety or 
security matter that is submitted by a qualified participant under the 
T-SAP or ATSAP, that is accepted into either program, including the T-
SAP or ATSAP report, and the name of the submitter of the report. 
Notwithstanding the foregoing, mandatory information about occurrences 
that are required to be reported under FAA Orders, Notices or guidance 
is not protected under this designation, unless the same information 
has also been submitted or reported under other procedures prescribed 
by the Agency. The exclusion is necessary to assure that the 
information protected under this designation has been voluntarily 
submitted. It also permits changes to FAA Orders, Notices and guidance 
without requiring a change to this designation.
    (2) Any evidence gathered by the Event Review Committee during its 
investigation of a safety- or security-related event reported under T-
SAP or ATSAP, including the T-SAP or ATSAP investigative file.
    c. Ways to Participate. Individuals who are qualified participants 
register for, and submit a report into, the electronic reporting 
system.
    d. Duration of Voluntary Safety Reporting Programs. These programs 
continue as long as provided for by Order, Notice, policy or a 
collective bargaining agreement.

4. Findings

    The FAA designates information received from a T-SAP or ATSAP 
submission as protected under 49 U.S.C. 40123 and 14 CFR 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. This finding is supported by the significant 
increase in reports of safety-related matters since the implementation 
of T-SAP and ATSAP. No covered individual is required to participate in 
the T-SAP, ATSAP, or other voluntary safety reporting program.
    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-related.
    (1) The following types of reports are ordinarily submitted under 
the T-SAP or ATSAP:
    i. Noncompliance reports. Noncompliance reports identify specific 
instances of a failure to follow FAA directives.
    ii. Aviation safety concern reports. Aviation safety concerns that 
do not involve specific noncompliance with FAA directives. These may 
include, but are not limited to, potential safety events or perceived 
problems with policies, procedures, and equipment.
    (2) Technical Operations personnel support the delivery and 
efficiency of flight services through maintenance of the National 
Airspace System facilities, systems and equipment. Reports submitted by 
these employees under T-SAP ordinarily involve matters or observations 
occurring during the performance of their job responsibilities, and 
therefore the information submitted is inherently safety related. Air 
Traffic personnel provide and support the provision of air traffic 
services at FAA facilities throughout the NAS. Reports submitted by 
these employees under ATSAP ordinarily involve occurrences or problems 
identified or experienced during the performance of their job 
responsibilities which directly affect safety.
    c. 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. 
Individuals are unwilling to voluntarily provide detailed information 
about safety events and concerns, including those that might involve 
their own failures to follow Agency directives and policies, if such 
information could be released publicly. If information is publicly 
disclosed, there is a strong likelihood that the information could be 
misused for purposes other than to address and resolve the reported 
safety concern. Unless the FAA can provide assurance that safety-
related reports will be withheld from public disclosure, personnel will 
not participate in the programs.
    d. Summary of why the receipt of that type of information aids in 
fulfilling the FAA's safety responsibilities. The FAA finds that 
receipt of information in T-SAP or ATSAP reports aids in fulfilling the 
FAA's safety responsibilities. Because of its capacity to provide early 
identification of needed safety improvements, this information offers 
significant potential for addressing hazards that could lead to 
incidents or accidents. In particular, one of the benefits of T-SAP and 
ATSAP is that they encourage the submission of narrative descriptions 
of occurrences that provide more detailed information than is otherwise 
available. The T-SAP and ATSAP produce safety-related data that is not 
available from any other source. Receipt of this previously unavailable 
information has provided the FAA with an improved basis for modifying 
procedures, policies, and regulations to improve safety and efficiency.
    e. Consistencies and inconsistencies with FAA safety 
responsibilities. The FAA finds that withholding T-SAP and ATSAP 
information from public release is consistent with the FAA's safety 
responsibilities, because it encourages individuals to provide 
important safety information that it otherwise might not receive.
    (1) Withholding T-SAP and ATSAP information from disclosure, as 
described in this designation, is consistent with the FAA's safety 
responsibilities. Without the Agency's ability to assure that the 
detailed information reported under these programs, which often 
explains why the event occurred or describes underlying problems, will 
not be disclosed, the

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information will not be provided to the FAA. Individuals are concerned 
that public release of the information could result in potential 
misuses of the information that could affect them negatively. If the 
FAA does not receive the information, the FAA and the public will be 
deprived of the opportunity to make the safety improvements that 
receipt of the information otherwise enables. Corrective action under 
T-SAP and ATSAP can be accomplished without disclosure of protected 
information. For example, for acceptance under each program, the 
reporting individual must comply with ERC recommendations for 
corrective action, such as additional training. If the individual fails 
to complete corrective action in a manner satisfactory to all members 
of the ERC, the event may be referred to an appropriate office within 
the FAA for any additional investigation, reexamination, and/or action, 
as appropriate.
    (2) The FAA may release T-SAP and ATSAP information submitted to 
the agency, as specified in Part 193 and this proposed Order. For 
example, to explain the need for changes in FAA policies, procedures, 
and regulations, the FAA may disclose de-identified, summarized 
information that has been derived from T-SAP and ATSAP reports or 
extracted from the protected information listed under paragraph 4b. The 
FAA may disclose de-identified, summarized T-SAP and ATSAP information 
that identifies a systemic problem in the National Airspace System, 
when a party needs to be advised of the problem in order to take 
corrective action. Under the current version of FAA Order JO 7200.20, 
reported events and possible violations may be subject to 
investigation, reexamination, and/or 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 an 
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. 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 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, or at 
least diminish, the FAA's ability to effectively address 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 T-SAP and ATSAP reports are clearly labeled as such. Each 
individual must submit their own report.

5. Designation

    The FAA designates the information described in paragraph 4b to be 
protected from disclosure in accordance with 49 U.S.C. 40123 and 14 CFR 
part 193.

    Issued in Washington, DC, on July 10, 2013.
Michael P. Huerta,
Administrator, Federal Aviation Administration.
[FR Doc. 2013-17401 Filed 7-18-13; 8:45 am]
BILLING CODE 4910-13-P