[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
