[Federal Register Volume 87, Number 29 (Friday, February 11, 2022)]
[Proposed Rules]
[Pages 7968-7970]
[FR Doc No: 2022-02726]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 193

[Docket No. FAA-2002-13236]

Aviation Safety Action Program

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

ACTION: Notice of availability; request for comments.

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SUMMARY: The FAA is proposing to amend Order 8000.82 that designates
information provided to the agency from a voluntary Aviation Safety
Action Program (ASAP) as protected from public disclosure in accordance
with the provisions of the FAA regulations related to the protection of
voluntarily submitted information. The FAA is required to protect the
information from disclosure to the public, including disclosure under
the Freedom of Information Act (FOIA) or other laws, following issuance
of such order. The proposed designation would apply to air carriers,
repair stations, or other entities who have an FAA-accepted ASAP, and
their covered employees. The intent of this action is to encourage
participation in the ASAP.

DATES: Comments must be received on or before March 14, 2022.

ADDRESSES: Send comments identified by Docket Number FAA-2002-13236
using any of the following methods:
    You may send comments identified by docket number FAA-2002-13236
using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation (DOT), Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Privacy: DOT posts these comments, without edit, including
any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.
     Docket: Background documents or comments received may be
read at https://www.regulations.gov at any time. Follow the online
instructions for accessing the docket or go to the Docket Operations in
Room W12-140 of the West Building Ground Floor at 1200 New Jersey
Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Randy McDonald, Flight Standards, Air
Transportation Division, Air Carrier Training and Voluntary Safety
Programs Branch, Federal Aviation Administration by email at:
[email protected]; phone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Overview of ASAP

    On September 3, 2003, the Federal Aviation Administration (FAA)
issued Order 8000.82, which designated information voluntarily provided
under the Aviation Safety Action Program (ASAP), described in FAA
Advisory Circular 120-66B, as protected from public disclosure.\1\ This
includes disclosure under FOIA (5 U.S.C. 552) or other laws. The
designation intended to encourage participation in the ASAP by air
carriers that operated under 14 CFR part 121 and domestic repair
stations certificated under 14 CFR part 145 that have an FAA-accepted
ASAP and their covered employees.
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    \1\ See FAA Order 8000.82 at 68 FR 54767 (September 18, 2003).
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    The FAA is proposing to issue Order 8000.82A, which amends and
expands Order 8000.82, by designating as protected from public
disclosure information submitted to the agency by a larger group of
entities (``eligible entities'' as defined in AC 120-66C, Aviation
Safety Action Program). The information voluntarily submitted by the
eligible entities, as described below, would be protected from public
disclosure in accordance with the provisions of part 193. In accordance
with Sec.  193.11(d), the FAA is publishing this proposed amended
designation in the Federal Register as a notice and requesting
comments.

II. Background

    Under 49 U.S.C. 40123, certain voluntarily provided safety and
security information is protected from disclosure 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. Part 193 describes the notice procedure for the FAA to
designate information as protected. If the Administrator issues an
order designating information as protected under 49 U.S.C. 40123, that
information will be exempt from public disclosure under FOIA exemption
3. Such information will not be disclosed under FOIA, or other laws
except as provided in 49 U.S.C. 40123, 14 CFR part 193, and the order
designating the information as protected.

III. Summary of the ASAP Voluntary Information Sharing Program

    A. Who may participate? Under AC 120-66C, air carriers, repair
stations, and other entities (collectively referred to as ``eligible
entities'') who have an FAA-approved ASAP, and their covered employees,
may participate in ASAP. The proposed amended designation, i.e., Order
8000.82A, covers the expansion of ASAP to such eligible entities. In
contrast, the prior AC 120-66B and the original designation, i.e.,
Order 8000.82, were only intended to apply to air carriers that
operated under 14 CFR part 121 and for domestic repair stations
certificated under 14 CFR part 145 that have an FAA-accepted ASAP and
their covered employees.
    B. What voluntarily provided information would be protected from
disclosure under this proposed amended designation? The type of
information to be protected in proposed Order 8000.82A remains the same
as in Order 8000.82.
    The following information would be protected from disclosure when
provided in a report to the FAA that meets the acceptance criteria
under the ASAP Program:
    (1) The employee's ASAP report, and the content of that report.
    (2) The identity of the eligible entity 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
eligible entity that is based on events reported under a particular
eligible entity's ASAP.
    (7) An eligible entity's database of reports and events collected
over time from that eligible entity's ASAP.
    (8) Corrective action on sole source reports when such corrective
action is successfully completed.
    In accordance with Section 320 of the FAA Reauthorization Act of
2018, Public Law 115-254, 132 Stat. 3270 (Oct. 5, 2018), ASAP reports
that are excluded do not receive protection under 49 U.S.C. 40123.
    C. How do you participate? Eligible entities, as described in this
proposed amendment, 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 program? This
information-sharing program continues for a given eligible entity until
the associated ASAP MOU is terminated by any of the parties to the MOU.

IV. Proposed Findings

    The FAA proposes to designate information in an accepted ASAP
report received from an eligible entity under its FAA-approved ASAP
program in accordance with this amendment as protected under 49 U.S.C.
40123 and 14 CFR 193.7. The FAA proposes this designation based on the
following findings made under 14 CFR 193.11(c).
    A. Summary of why the FAA finds that the information will be
provided voluntarily.
    The protection that resulted from Order 8000.82 alleviated concerns
of ASAP-holding entities that disclosure of voluntarily submitted
information could result in its use for other than the safety
enhancement purposes for which the ASAP was created. Further, under
ASAP, the FAA takes no action against an individual who submits a
report that is accepted (and not subsequently excluded). The history of
protection under ASAP and the enforcement-related incentive encourage
voluntary submission of the information. Therefore, the FAA finds that
eligible entities will voluntarily provide ASAP information to the FAA.
Additionally, since the implementation of the original part 193 ASAP
program, the FAA has seen an increase in the sharing of ASAP
information with the FAA beyond the FAA ERC representative by those
originally covered under the program, and expects a similar increase as
the program is expanded to other entities.
    B. Description of the type of information that may be voluntarily
provided under the amended program and a summary of why the FAA finds
that the information is safety- or security-related.
    The FAA expects the eligible entities covered under the proposed
designation will share the same type of information as entities covered
under Order 8000.82. An ASAP is created specifically 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: (1) 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 (2) 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.
    C. Summary of why the FAA finds that the disclosure of the
information would inhibit persons from voluntarily providing that type
of information.
    Eligible entities 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. Among other reasons, entities are concerned that the
disclosure of voluntarily provided information to the public could be
incomplete, unreliable, and sensitive. As a result, entities are
concerned that disclosure of such information could unduly and
adversely affect competitive advantage and public perception, and would
be used for other than the safety enhancement purposes for which the
ASAP was created. Individuals are concerned that disclosure of their
reports would adversely affect their privacy interests.
    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. FAA experience has clearly established that an ASAP
can produce safety-related data that is not available from any other
source. For example, ASAP reports concerning altitude deviations have
identified common causal factors that produce 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. 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.
    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 likely
not receive the information. If the FAA does not receive the
information, the FAA will be hampered in efforts to understand safety-
related issues within an eligible entity's operational environment and
ensure safety improvements that receipt of the information otherwise
enables.
    The FAA may disclose information submitted to the agency that is
designated as protected under part 193 when withholding it would not be
consistent with the FAA's safety and security responsibilities under
the circumstances described in 14 CFR 193.9(a)(1)-(4). For example, to
explain the need for changes in FAA policies, procedures, and
regulations, the FAA may disclose de-identified (i.e., no eligible
entity or employee identity) and summarized information that has been
derived from ASAP information or extracted from reports under ASAP. The
FAA may disclose de-identified or 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.
    F. Summary of how the FAA will distinguish information protected
under part 193 from information the FAA receives from other sources.
    The process for distinguishing information from the eligible
entities as protected will remain unchanged. 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. Any such employee must submit a separate signed report.
    Any other information received by the FAA from the eligible entity
concerning the content of ASAP reports (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.
    G. Proposed Designation.
    Accordingly, the FAA hereby proposes to designate the previously
described information to be protected from disclosure in accordance
with 49 U.S.C. 40123 and 14 CFR part 193, when submitted pursuant to an
approved ASAP program.

V. Comments Invited

    The FAA invites interested persons to comment on the proposed
amended designation by submitting written comments, data, views. The
Agency also invites comments relating to the economic, environmental,
energy, or federalism, impacts that might result from adopting the
proposal in this notice.
    The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed designation. Before taking action on
this proposed designation, the FAA will consider all comments it
receives on or before the closing date for comments. The FAA will
consider comments filed after the comment period has closed if it is
possible to do so without incurring expense or delay. The Agency may
change this proposal in light of the comments it receives.

VI. Availability of Proposed Designation

    An electronic copy of the proposed designation may be obtained from
the internet by--
    1. Searching the Federal eRulemaking Portal (https://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies web page at https://www.faa.gov/regulations_policies; or
    3. Accessing the Government Publishing Office's web page at https://www.govinfo.gov.

    Issued in Washington, DC.
Robert C. Carty,
Acting Executive Director, Flight Standards Service.
[FR Doc. 2022-02726 Filed 2-10-22; 8:45 am]
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