NEWSCLIP-2014-05-14: New Rule Exempting ATSAP from FOIA Disclosure

[Federal Register Volume 79, Number 94 (Thursday, May 15, 2014)]
[Proposed Rules]
[Pages 27817-27820]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-11150]


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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), DOT.

ACTION: Notice of order designating safety information as protected 
from disclosure; disposition of comments.

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SUMMARY: This action affirms the policy and responds to comments 
received in response to the Notice published on July 19, 2013 (78 FR 
43091) regarding the application of our regulations, Technical 
Operations Safety Action Program (T-SAP) and Air Traffic Safety Action 
Program (ATSAP). The Notice proposed that safety information provided 
to the FAA under the T-SAP and ATSAP programs be designated by an FAA 
Order as protected from public disclosure in accordance with the 
provisions of our regulations, 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 and 
implement, as appropriate, corrective measures for events or safety 
issues.

DATES: This action becomes effective May 15, 2014.

ADDRESSES: For information on where to obtain copies of documents and 
other information related to this action, see ``How to Obtain 
Additional Information'' in the SUPPLEMENTARY INFORMATION section of 
this notice.

FOR FURTHER INFORMATION CONTACT: For questions concerning this action, 
contact Ms. Coleen Hawrysko, Group Manager, Air Traffic Organization 
(ATO) Safety Programs, Federal Aviation Administration, 490 L'Enfant 
Plaza, Suite 7200, Washington, DC 20024; telephone (202) 385-4571, 
email coleen.hawrysko@faa.gov.

SUPPLEMENTARY INFORMATION:

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. In accordance with 14 CFR part 193, Protection of 
Voluntarily Submitted Information, the FAA must issue an Order that 
specifies why the agency finds that the information should be 
protected. 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 (FOIA) (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.
    The designation of protected information 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. The 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 designation will also apply to 
any other government agency to receive T-SAP or ATSAP information 
covered under the designation from the FAA, and each such agency must 
first 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.
    Except for T-SAP or ATSAP reports that involve possible criminal 
conduct, substance abuse, controlled substances, alcohol, or 
intentional falsification, the following information will 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 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-related or security-related event reported 
under T-SAP or ATSAP, including the T-SAP or ATSAP investigative file.
    T-SAP or ATSAP participants register for, and submit a report into, 
the electronic reporting system. These programs continue as long as 
provided for by Order, Notice, policy or a collective bargaining 
agreement.
    On July 19, 2013, the FAA issued a notice (78 FR 43091), Notice of 
Proposed Order Designating Safety Information as Protected from 
Disclosure (hereinafter, the ``notice''). The notice sought comment on 
the FAA's intent to designate information voluntarily received under T-
SAP or ATSAP as protected from public disclosure in accordance with the 
provisions of 14 CFR part 193.

Discussion of Comments

    Three commenters submitted comments in response to docket number--
FAA 2013-0375. The occupations and/or any group affiliations of the 
commenters were not stated. The commenters all opposed this action, and 
raised the following issues:

[[Page 27818]]

     This action is contrary to the President's Open Government 
Initiative (OGI).
     Denying public access to voluntarily-submitted reports 
would inhibit efforts to improve safety.
     Disagreement with the FAA's assertion that this policy is 
needed to insure that safety events would be reported by FAA personnel.
     Requirements contained in part 193 are not applicable to 
federal employees.

I. The President's Open Government Initiative

    The commenters asserted that this policy of non-disclosure of 
information to the public is contrary to the goals of the OGI. The OGI 
is an initiative that includes executive orders, action plans, 
memoranda, etc., which espouses enhanced principles of open government, 
transparency and greater access to information.
    The FAA's position is that OGI provides for the appropriate 
protection of data where there is a compelling public safety interest. 
The FAA believes the public is best served by systematic risk 
mitigation, rather than by a sporadic focus on high-profile or 
emotionally-charged incidents. This can only be achieved through broad-
based data collection and analysis in an environment of trust and 
confidence that the results will not be inappropriately released. To 
the issue of scope, the OGI does not conflict with the law regarding 
protection of safety data.
    The following summarizes the policy intent of the President's 
Memorandum on Transparency and Open Government: ``This memorandum is 
not intended to, and does not, create any right or benefit, substantive 
or procedural, enforceable at law or in equity by a party against the 
United States, its departments, agencies, or entities, its officers, 
employees, or agents, or any other person.'' The full text can be found 
at:
    (The President's MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS 
AND AGENCIES, SUBJECT: Transparency and Open Government, http://www.whitehouse.gov/the_press_office/Transparency_and_Open_Government/.
    The balance of needs is demonstrated in the Memorandum for the 
Heads of Executive Departments and Agencies: ``Moreover, nothing in 
this Directive shall be construed to suggest that the presumption of 
openness precludes the legitimate protection of information whose 
release would threaten national security, invade personal privacy, 
breach confidentiality, or damage other genuinely compelling 
interests.'' The full text can be found at: (Office of Management and 
Budget, Open Government Directive, December 8, 2009, M-10-06, 
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, http://www.whitehouse.gov/open/documents/open-government-directive).
    Based on 49 U.S.C. 40123, the Administrator has found that the 
disclosure of T-SAP and ATSAP information would inhibit the voluntary 
provisions of that type of information and that the receipt of that 
type of information aids in fulfilling the agency's safety and security 
responsibilities. The Administrator has issued regulations under 49 
U.S.C. 40123 to carry out provisions in this section. 14 CFR part 193 
and follow on directives FAA Order JO 7200.20 and Notice JO 7210.807 
detail FAA's Voluntary Safety Reporting Programs. The Administrator has 
further found that withholding such information from disclosure would 
be consistent with the agency's safety and security responsibilities 
allowed under 49 U.S.C. 40123, and this change will protect such 
information from public disclosure.

II. Denying Public Access to Voluntarily-Submitted Reports Would 
Inhibit Efforts To Improve Safety

    One commenter asserted that the ability of the public to hold the 
FAA accountable for its actions and policies is based on full access to 
very detailed information. The FAA disagrees. Public access to certain 
voluntarily-provided safety data is expressly limited by statute for 
the fundamental reasons already articulated--privacy and 
confidentiality concerns must be addressed before information will flow 
freely. The true aim of this regulatory change is to protect the flying 
public and aid in fulfilling the Administrator's safety 
responsibilities. The commenter's opinion that no harm would occur 
should protections be removed is contrary to history, industry 
consensus and Congressional intent. The fact that Aviation Safety 
Action Programs reports have been covered under Part 193 and FAA Order 
8000.82 since 2003 is evidence of the understanding that this 
information will only be obtained if confidentiality under the law is 
maintained.

III. Disagreement With the FAA's Assertion That This Policy of Non-
Disclosure Is Needed To Insure That That Safety Events Are Reported by 
FAA Personnel

    One commenter referred to the NASA Aviation Safety Reporting System 
(ASRS), and claimed the de-identified reports are providing adequate 
information into their publicly disclosable ASRS database. The FAA 
asserts that ASRS and ATSAP programs are both an important source of 
information, but are not the same, and thus require different 
parameters and guidelines. ASRS does not accept reports related to 
accidents, thus critical protection may not be available when it is 
most needed. In addition, ASRS does not provide the comprehensive 
background and organizational structure to adequately implement 
corrective actions, as NASA does not have regulatory or enforcement 
authority. On a positive note, however, ATSAP directly supports the 
ASRS program, as submitters may voluntarily request de-identified 
reports be provided to ASRS. In fact, since November of 2010, a 
significant portion of the ATSAP safety data already resides in that 
publicly-available database. Prior to providing this option, ASRS was 
receiving a very low number of reports from controllers. The monthly 
average went from less than 50 to more than 500 after the option to 
send a copy of a submitted ATSAP report to ASRS was provided. ASRS 
further redacts information from ATSAP reports, and makes only about 10 
percent of those reports available on their public site. Simply 
removing names, as the commenter suggests, would do little to preserve 
confidentiality or privacy, as descriptions of airports, aircraft and 
time of day point directly to officially-available records of who was 
on duty at the time of an event. As stated in the NASA paper, ``ASRS: 
The Case for Confidential Incident Reporting Systems'', ``People are 
generally willing to share their knowledge if they are assured their 
identities will remain confidential, and ultimately, anonymous and the 
information they provide will be protected from disciplinary and legal 
consequences.''

IV. Requirements Contained in Part 193 Are Not Applicable to Federal 
Employees

    All commenters stated they believed that the provisions contained 
in 14 CFR part 193 do not preclude participation by government 
employees; however, they all were resolute in their opinion that 
government employees should not be included and they asserted that not 
including them was the original intent.
    The distinction between the airlines Aviation Safety Reporting 
Programs and the FAA's Voluntary Safety Reporting Program (VSRP) is 
irrelevant to the intent and language of part 193, as the focus is on 
protecting safety information

[[Page 27819]]

regardless of its source. Federal employees engaged in public safety 
are no less affected by concerns regarding their privacy and undue 
scrutiny than industry employees. The goal of the protective provisions 
of a VSRP is to remove barriers to reporting for anyone with relevant 
knowledge of a safety issue, and there is no functional difference 
between private and public sector employees who may have concerns for 
confidentiality. As noted by one commenter, part 193 does not prohibit 
the protection of the FAA employees from the disclosure of safety and 
security information voluntarily submitted to the FAA.
    14 CFR 193.1 states, ``. . . FAA protects from disclosure safety 
and security information that you submit voluntarily to the FAA.'' 
Sec.  193.5(b) states that ``You may be any person, including an 
individual, a company, or an organization.'' Any person may voluntarily 
submit information if it is accomplished under a designated safety 
reporting program. Additionally, there is no explicit exclusion of any 
group or individual. The determination of the Administrator to 
designate safety information for protection is fully within the scope 
and intent of the law.
    Two commenters asserted that the FAA is changing its rationale for 
withholding information. This policy merely strengthens the FAA's 
determination that the protection of certain voluntarily provided 
safety information from disclosure under the FOIA enhances the agency's 
ability to obtain safety information that it would likely not otherwise 
have received.

Additional Background

    Since receiving its first report in July 2008, ATSAP has received 
over 73,000 reports, a remarkable record of success compared to 
previous years when traditional reporting yielded information on 
perhaps a few hundred incidents per year. Of those VSRP reports, 
significant numbers provide information about safety issues that are 
not technically required to be reported, providing an avenue for risk 
identification that was previously nonexistent.
    There have been over 100 Corrective Action Requests issued as the 
result of ATSAP reports and over 60 as the result of T-SAP reports to 
date, of which nearly half have been fully mitigated. Information 
disclosed in ATSAP reports over the past 5 years has contributed to 
more than 200 safety improvements, including local, regional and 
national actions to improve safety. T-SAP reports received in the past 
3 years have contributed to over 100 safety improvements. The continued 
identification of hazards in the National Airspace System as a result 
of reports received from front line personnel is vital to the safety of 
the flying public. Without protecting the confidentiality of these 
voluntary safety report submitters there is no way to build the trust 
necessary to encourage the reporting of actual and potential safety 
hazards to the degree the FAA is now realizing, if at all.
    In addition to countless informal contacts initiated to resolve 
safety issues, the FAA's VSRPs publish safety briefing sheets and 
alerts to thousands of aviation safety professionals regarding issues 
identified in VSRP reports, often including de-identified excerpts from 
reports that are significant, educational, and timely.

Conclusion

    Upon review of the issued notice and submitted comments, the FAA 
has affirmed the proposed policy, and designates information received 
from a T-SAP or ATSAP submission as protected under 49 U.S.C. 40123 and 
14 CFR 193.7.

Voluntarily-Provided Information Protected From Disclosure Under the 
Designation

    Except for T-SAP or ATSAP reports that involve possible criminal 
conduct, substance abuse, controlled substances, alcohol, or 
intentional falsification, the following information is 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 narrative 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 or issue reported 
under T-SAP or ATSAP, including the T-SAP or ATSAP investigative file.

 Ways To Participate

    Individuals who are qualified participants register for, and submit 
a report into, the electronic reporting system.

Duration of Voluntary Safety Reporting Programs

    These programs continue as long as provided for by Order, Notice, 
policy or a collective bargaining agreement.

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.

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 and actual and potential safety 
hazards 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.

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

[[Page 27820]]

encourages individuals to provide important safety information that it 
otherwise might not receive.
    The FAA designates the following information as protected from 
disclosure in accordance with 49 U.S.C. 40123 and 14 CFR part 193:
    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.

    Issued in Washington, DC, on May 9, 2014.
Michael P. Huerta,
Administrator, Federal Aviation Administration.
[FR Doc. 2014-11150 Filed 5-14-14; 8:45 am]
BILLING CODE 4910-13-P




copied 9/9/2014 from: http://www.gpo.gov/fdsys/pkg/FR-2014-05-15/html/2014-11150.htm