03-23769. 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 [phone]. e-mail [e-mail].

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, 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:

• 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)
• 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 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.

(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.

(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.