5 September 2002
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html
Two proposed orders on non-disclosure of information which should be
available to the public, the first on aviation safety and the second
on flight operational quality.
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[Federal Register: September 5, 2002 (Volume 67, Number 172)]
[Proposed Rules]
[Page 56774-56776]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se02-13]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 193
[Docket No. FAA-2002-13236]
Aviation Safety Action Programs
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of Proposed Order Designating Information as Protected
from Disclosure.
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SUMMARY: The FAA is proposing that information provided to the agency
from a voluntary Aviation Safety Action Program (ASAP) be designated by
an FAA order as protected from public disclosure in accordance with the
provisions of 14 CFR part 193. Under 49 U.S.C. 40123, the FAA is
required to protect the information from disclosure to the public,
including disclosure under the Freedom of Information Act (5 U.S.C.
552) or other laws, following issuance of such order. The designation
is intended to encourage participation in the ASAP.
DATES: Comments must be received on or before October 7, 2002.
ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation Room Plaza 401, 400 Seventh St., SW.,
Washington, DC 20590-0001. You must identify the docket number FAA-
2002-13236 at the beginning of your comments, and you should submit two
copies of your comments. If you wish to receive confirmation that FAA
received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://
dms.dot.gov. You may review the public docket containing comments to
this proposed designation in person in the Dockets Office between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
Dockets Office is on the plaza level of the NASSIF Building at the
Department of Transportation at the above address. Also, you may review
public dockets on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Dr. Thomas Longridge, Flight Standards
Service, AFS-230, Federal Aviation Administration, 800 Independence
Ave., SW., Washington DC 20591, telephone (703) 661-0275.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to comment on the proposed
designation by submitting such written data, views, or arguments as
they may desire. Comments relating to the environmental, energy,
federalism, or economic impact that might result from adopting the
proposal in this notice are also invited. Substantive comments should
be accompanied by cost estimates, where appropriate. Comments should
identify the notice number and should be submitted in duplicate to the
Rules Docket address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel concerning this proposed
designation will be filed in the docket. The docket is available for
public inspection before and after the comment closing date.
All comments received on or before the closing date for comments
specified will be considered by the Administrator before taking action
on this proposed designations. Comments filed late will be considered
as far as possible without incurring expense or delay. The proposal
contained in this notice may be changed in light of comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must include a preaddressed,
stamped postcard on which the following statement is made: ``Comments
to the Docket No. FAA-2002-[INSERT DOCKET NUMBER].'' The postcard will
be date stamped and mailed to the commenter.
Availability of This Proposed Designation
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339) or the Government Printing Office (GPO)'s electronic bulletin
board service (telephone: 202-512-1661).
Internet users may access the FAA's Web page containing this notice
at http://www.faa.gov/avr/afs/asap or may go to the GPO's Web page at
http://www.access.gpo.gov.nara for access to recently published
notices.
Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Air Transportation
Division, AFS-200, 800 Independence Ave, SW., Washington, DC 20591, or
by calling (202) 267-8166. Communications must identify the docket
number and title of this designation.
Background
Under 49 U.S.C. 40123, certain voluntarily provided safety and
security information is protected from disclosure in order 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. The FAA's rules implementing that section are in 14 CFR
part 193. If the Administrator issues an order designating information
as protected under section 40123, 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
designating the information as protected. This proposed order is issued
under 14 CFR 193.11, which sets out the notice procedure for
designating information as protected.
Description of the Proposed Information Sharing Program
An Aviation Safety Action Program (ASAP) is entered into
voluntarily through a Memorandum of Understanding (MOU) signed by the
FAA, an air carrier or a repair station (referred to in this notice as
``certificate holder''), and, if applicable, an employees' labor union.
The intent of the program is to encourage defined groups of certificate
holder employees to report possible violations, safety issues and
events to an ASAP Event Review Committee (ERC) comprised of one
representative from each such party. Because of its capacity to provide
early identification of needed safety improvements, an ASAP offers
significant potential for incident and accident avoidance. FAA
experience to date has clearly established that an ASAP can produce
safety-related data
[[Page 56775]]
that is not available from any other source. FAA limits enforcement
actions it takes against employees covered by an ASAP to encourage them
to report possible violations and safety problems. In order for a
possible violation to be covered under an ASAP, the employee's ASAP
report ordinarily must be submitted within a time limit specified in
the MOU, any alleged violation must be inadvertent and must not appear
to involve an intentional disregard for safety, and the reported event
must not appear to involve criminal activity, substance abuse,
controlled substances, alcohol, or intentional falsification. FAA
policy and further details concerning the ASAP are addressed in
Advisory Circular 120-66, Aviation Safety Action Programs, as amended
(the advisory circular may be viewed and/or downloaded from the
Internet at http://www.faa.gov/avr/afs/asap).
For ASAP reports involving alleged violations, the ERC investigates
to determine if independence information from FAA sources is available
concerning the event (e.g. air traffic control tapes), and whether the
reporting employee may have previously reported similar violations
under the ASAP. Except for ASAP reports involving possible criminal
activity, substance abuse, controlled substances, alcohol, or
intentional falsification, this proposed designation would, if adopted,
protect the content of all ASAP reports in the possession of the FAA
from public disclosure. Similarly, any other information received by
the FAA from the certification holder concerning the content of such
ASAP reports, including for example statistical analyses, periodic
program review reports, and trend information will be protected from
disclosure under this designation, unless the certificate holder
authorizes the FAA to disclose that information. Voluntarily provided
information listed under paragraph B immediately below that is obtained
during periodic FAA audits of ASAP, if any, will be protected from
disclosure under this designation.
Summary of the ASAP Voluntary Information Sharing Program
A. Who may participate: Certificate holders who have an ASAP and
their employees.
B. Except for ASAP reports involving possible criminal activity,
substance abuse, controlled substances, alcohol, or intentional
falsification, what voluntarily provided information would be protected
from disclosure under this proposed designation:
1. The content of an employee's ASAP report.
2. The identity of the certificate holder associated with an ASAP
report.
3. The name of an employee submitting an ASAP report(s).
4. The findings from other than FAA sources of an ERC investigation
concerning an ASAP report.
5. Evidence and other information gathered during an ERC
investigation by other than FAA sources.
6. Statistical analysis and trend information provided by the
certificate holder based on events reported under a particular
certificate holder's ASAP.
7. A database of reports and events over time from a particular
certificate holder's ASAP.
C. How persons would participate: Certificate holders participate
by executing an ASAP MOU with the FAA, and by voluntarily sharing
information from the ASAP with the FAA. Employees covered under the
ASAP MOU participate by submitting ASAP reports in accordance with that
MOU.
D. Duration of this information sharing program: This information
sharing program would continue in effect for a given certificate holder
until the associated ASAP MOU is terminated by any of the parties to
the MOU, or until the order of designation for this program is
withdrawn by the FAA.
Proposed Findings
The FAA proposes to designate information received under an ASAP as
protected under 49 U.S.C. 40123 and 14 CFR 193.7 based on the following
findings:
(1) Summary of why the FAA finds that the information will be
provided voluntarily.
The ASAP 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. The FAA anticipates that information from a
certificate holder's ASAP will be shared with the FAA, because the
voluntary establishment of an ASAP constitutes a partnership between
the FAA and the certificate holder in the interest of achieving joint
safety improvement goals.
(2) 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.
An ASAP is specifically created 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: 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
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.
(3) 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. 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. 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. Withholding such
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
[[Page 56776]]
make the safety improvements that receipt of the information otherwise
enables. While the FAA does not anticipate receiving ASAP reports for
retention in FAA files or in 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 of perceived contributing factors for runway incursions
(extracted from ASAP reports) could be beneficial to the FAA and to
airlines in the development of corrective strategies to reduce the
probability of such incidents.
(4) 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 to date has clearly established that an ASAP can produce
safety-related data that is not available from any other source. For
example, ASAP reports concerning runway incursions could potentially
identify common causal factors in producing such incidents. Receipt of
this hitherto unavailable information would provide the FAA with an
improved basis for modifying procedures, policies, and regulations in
order to improve safety and efficiency. It would also better permit the
FAA to serve as a national safety information resource for certificate
holders.
(5) 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.
The FAA finds that withholding ASAP information provided to the FAA
is consistent with the FAA's safety responsibilities. ASAP specifically
provides that corrective action will be taken when necessary.
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. 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.
The FAA will release information submitted under an ASAP as
specified in part 193 and this proposed order. In order to explain the
need for changes in FAA policies, procedures, and regulations, the FAA
may disclose de-identified (i.e. the identity of the source of the
information and the names of the certificate holder, the employee, and
other persons redacted) summary information that has been extracted
from reports under the ASAP. The FAA may disclose de-identified,
summarized ASAP information that identifies a systemic problem in the
aviation system, when other persons need to be advised of the problem
so that they can take corrective action. The FAA may disclose de-
identified aggregate statistical information concerning ASAP
activities. The FAA may disclose independently obtained information
relating to any event disclosed in an ASAP report. The FAA will not
release the content of an excluded ASAP report, unless that excluded
report involves criminal activity, substance abuse, controlled
substances, alcohol, or intentional falsification, in which case it
would be contrary to public safety not to disclose such information,
because of the egregious nature of such events. The FAA may release the
content of ASAP MOU's, including identification of the signatories on
such MOUs.
(6) Summary of how the FAA will distinguish information protected
under part 193 from information the FAA receives from other sources.
All employees ASAP reports are clearly labeled as such, and either
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. 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. 40123 and 14
CFR part 193.''
Proposed Designation
Accordingly, the Federal Aviation Administration hereby proposes to
designate the above-described information submitted under an ASAP to be
protected under 49 U.S.C. 40123 and 14 CFR part 193.
Issued in Washington, DC, on August 14, 2002.
Nicholas A. Sabatini,
Associate Administrator for Regulation and Certification.
[FR Doc. 02-22270 Filed 9-4-02; 8:45 am]
BILLING CODE 4910-13-M
[Federal Register: September 5, 2002 (Volume 67, Number 172)]
[Proposed Rules]
[Page 56770-56774]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se02-12]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 193
[Docket No. FAA-2002-13237]
Flight Operational Quality Assurance Program
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of Proposed Order Designating Information as Protected
from Disclosure.
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SUMMARY: The FAA is proposing that information provided to the agency
from a voluntary Flight Operational Quality Assurance (FOQA) Program be
[[Page 56771]]
designated by an FAA order as protected from public disclosure in
accordance with the provisions of 14 CFR Part 193. Under 49 U.S.C.
40123, the FAA is required to protect the information from disclosure
to the public, including disclosure under the Freedom of Information
Act (5 U.S.C. 552) or other laws, following issuance of such order. The
designation is intended to encourage sharing of FOQA information
between the FAA and operators participating in the program.
DATES: Comments must be received on or before October 7, 2002.
ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation Room Plaza 401, 400 Seventh St., SW.,
Washington, DC 20590-0001. You must identify the docket number FAA-
2002-13237 at the beginning of your comments, and you should submit two
copies of your comments. If you wish to receive confirmation that FAA
received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://
dms.dot.gov. You may review the public docket containing comments to
this proposed designation in person in the Dockets Office between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
Dockets Office is on the plaza level of the NASSIF Building at the
Department of Transportation at the above address. Also, you may review
public dockets on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Dr. Thomas Longridge, Flight Standards
Service, AFS-230, Federal Aviation Administration, 800 Independence
Ave, SW., Washington, DC 20591, telephone (703) 661-0275.
SUPPLEMENTARY INFORMATION
Comments Invited
Interested persons are invited to comment on the proposed
designation by submitting such written data, views, or arguments, as
they may desire. Comments relating to the environmental, energy,
federalism, or economic impact that might result from adopting the
proposal in this notice are also invited. Substantive comments should
be accompanied by cost estimates, where appropriate. Comments should
identify the notice number and should be submitted in duplicate to the
Rules Docket address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel concerning this proposed
designation will be filed in the docket. The docket is available for
public inspection before and after the comment closing date.
All comments received on or before the closing date for comments
specified will be considered by the Administrator before taking action
on this proposed designations. Comments filed late will be considered
as far as possible without incurring expense or delay. The proposal
contained in this notice may be changed in light of comments received.
Commenters wishing the FAA to acknowlege receipt of their comments
submitted in response to this notice must include a preaddressed,
stamped postcard on which the following statement is made: ``Comments
to the Docket No. FAA-2001-XXXX.'' The postcard will be date stamped
and mailed to the commenter.
Availability of This Proposed Designation
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339) or the Government Printing Office (GPO)'s electronic bulletin
board service (telephone: 202-512-1661).
Internet users may access the FAA's Web page containing this notice
at http://www.faa.gov/avr/afs/asap or may go to the GPO's Web page at
http://www.access.gpo.gov/nara for access to recently published
notices.
Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Air Transportation
Division, AFS-200, 800 Independence Ave, SW., Washington, DC 20591, or
by calling (202) 267-8166. Communications must identify the docket
number and title of this designation.
Background
Under 49 U.S.C. 40123, certain voluntarily provided safety and
security information is protected from disclosure in order to encourage
persons to provide the information to the FAA. The FAA must first issue
an order specifying why the agency finds that the information should be
protected in accordance with that section. 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 section
40123, 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 designating the information as
protected. This proposed order is issued under 14 CFR 193.11, which
sets out the notice procedure for designating information as protected.
Description of the Proposed Information Sharing Program
FOQA is a voluntary program for the routine collection and analysis
of digital flight data for the purpose of identifying adverse safety
conditions, and, where appropriate, for proactively initiating
corrective action before such conditions can lead to accidents. The
information provided by FOQA can be used by aircraft operators to
improve the effectiveness of operational procedures, maintenance and
engineering procedures, safety, and training. FOQA information can be
used by aircraft manufacturers to improve system design, efficiency,
and safety. FOQA aggregate information, including reports prepared by
an individual operator, or by the FAA, based on analysis of the
individual operator's FOQA data or aggregate data pursuant to an FAA
approved FOQA program, can be used by the FAA to monitor national
trends in flight operations, assess the effectiveness of NAS management
procedures, improve aircraft certification procedures, and, where
appropriate, provide an objective source of supplementary information
for national policy and rulemaking purposes. FOQA trend information
offers tremendous potential for the enhancement of safety in U.S.
airline operations.
In a January 1995 Department of Transportation (DOT) ``Zero
Accidents'' Aviation Safety Conference, it was recommended that the FAA
sponsor FOQA demonstration studies, in cooperation with industry, to
develop guidelines for such programs and to develop information
regarding the appropriate use and protection of recorded flight data.
In July 1995, the FAA initiated a FOQA Demonstration Project that has
been highly successful in facilitating the growth of voluntary FOQA
programs for U.S. operators.
In December 1998, the FAA Administrator issued a FOQA Policy
Statement that the FAA will not use de-identified FOQA information
obtained from voluntary FOQA programs to undertake enforcement actions
against airlines or their employees, except in egregious cases (which
are defined as those which would fail to qualify for protection under
the NASA Aviation Safety Reporting Program). In order to qualify for
the protection afforded by this FOQA policy statement, airlines must
obtain FAA approval of their FOQA Implementation and Operations
[[Page 56772]]
(I&O) Plan. The I&O Plan must describe how the airline intends to
operate its FOQA program, and its organizational procedures for
assuring corrective action is taken to address negative trends revealed
by analysis of the data. It must also describe the airline's provisions
for allowing the FAA to have access to de-identified FOQA aggregate
trend data on the airline's premises. Further information on FAA
procedures for approving and monitoring FOQA programs is provided in a
Joint Flight Standards Service Handbook Bulletin for Air Transportation
(HBAT) and Airworthiness (HBAW), entitled Flight Operations Quality
Assurance (FOQA) Program Approval Procedures and Continued Program
Monitoring, Bulletin Number HBAT-00-11/HBAW-00-10.
A Notice of Proposed Rulemaking (NPRM) which addressed the extent
to which the FAA could use FOQA information obtained from voluntary
FOQA programs for enforcement purposes, and which also addressed
provisions for sharing aggregate FOQA information from FAA approved
FOQA programs with the FAA, was published in the Federal Register on
July 5, 2000. Based on analysis of the comments received on that NPRM,
the FAA published a final FOQA rule on October 31, 2001 (66 FR 55042)
addressing these matters (14 CFR 13.401).
Under 14 CFR 13.401, no operator is required to obtain FAA approval
to initiate, conduct, or terminate a FOQA program. However, an operator
who seeks the protection offered by the FAA from the use of information
obtained from a FOQA program for enforcement purposes must obtain FAA
approval of its FOQA I&O Plan, and must adhere to that plan in the
operation of its FOQA program. This proposed order to protect FOQA
information from disclosure would only apply to operators who have an
FAA approved FOQA I&O Plan.
Summary of the FOQA Voluntary Information Sharing Program
A. Who may participate: Aircraft operators who have an FAA approved
FOQA Implementation and Operations Plan.
B. What voluntarily provided information would be protected from
disclosure under this proposed designation:
1. FOQA data, which is defined as any digital flight data that has
been collected from an individual aircraft pursuant to an FAA approved
FOQA program, regardless of the electronic format of that data (Note:
Operators are not expected or required to provide the FAA with FOQA
data as a condition for approval of a FOQA I&O Plan. However, if an
operator elects on its own initiative to voluntarily provide such
information to the FAA, it will be protected from disclosure under this
proposed order of designation.).
2. The identities of pilots associated with any FOQA data submitted
to the FAA (Note: the FAA does not anticipate that FOQA data containing
pilot identity information, or information that could be employed to
enable the determination of pilot identity, will be submitted to the
agency. However, if such information is submitted to the agency, it
will be protected from disclosure under this proposed order of
designation.).
3. Aggregate FOQA data from an individual operator, which is
defined as summary statistical indices based on analysis of FOQA data
from multiple aircraft operations, when such data is obtained pursuant
to an FAA approved FOQA program.
4. Reports prepared by an individual operator, or by the FAA, based
on analysis of the individual operator's FOQA data or aggregate data
pursuant to an FAA approved FOQA program.
5. The identity of an individual operator associated with specific
FOQA data, specific aggregate FOQA data, or a specific report derived
from analysis of the individual operator's FOQA data, pursuant to an
FAA approved FOQA program.
6. The specific results of any FAA analysis of FOQA aggregate data
from an individual operator, or from multiple operators, when such data
is obtained pursuant to an FAA approved FOQA program.
7. The specific corrective actions initiated by the operator of an
FAA approved FOQA program to correct an adverse safety trend revealed
by analysis of that operator's FOQA data.
8. A database of aggregate FOQA data over time from an individual
operator's approved FOQA program.
9. A database of reports, events, and outcomes over time from an
individual operator's approved FOQA program.
C. How persons would participate: An operator participates by
obtaining FAA approval of its FOQA I&O Plan, by adhering to that
approved plan, and by voluntarily sharing data and information from
their FOQA program with the FAA.
D. Duration of this information sharing program: This information
sharing program would continue in effect for a given operator until its
FOQA I&O Plan is terminated by the operator or until approval of the
operator's FOQA I&O Plan is withdrawn by the FAA.
Proposed Findings
The FAA proposes to designate information received from an approved
FOQA program as protected under 49 U.S.C. 40123 and 14 CFR 193.7 based
on the following findings:
(1) Summary of why the FAA finds that the information will be
provided voluntarily.
The FAA finds that the information will be provided voluntarily. No
operator is required to have a FOQA program. No operator who has a FOQA
program is required to obtain FAA approval of that program. Any
operator who has an FAA approved FOQA program may terminate that
program at the operator's discretion. The FAA anticipates that
information from an operator's approved FOQA program will be shared
with the FAA, because the voluntary establishment of an approved FOQA
program constitutes a partnership between the FAA and the operator in
the interest of achieving joint goals for the improvement of safety and
efficiency.
(2) 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.
The FAA anticipates that the types of information that may be
voluntarily provided under the program would be: (a) Summary
statistical indices based on analysis of an individual operator's FOQA
data, (b) graphical depictions of trend information obtained from
analysis of an individual operator's FOQA data, (c) written findings
that describe the results of FOQA data analysis, and that identify any
adverse safety trends revealed by that data, (d) corrective actions
planned, in process, or completed to correct adverse safety trends
revealed by FOQA data, and (e) the results of FOQA analysis conducted
to determine the effectiveness over time of corrective action
accomplished by the operator.
The FAA finds that this information is safety related because FOQA
data and FOQA aggregate data provide objective information on the
extent to which aircraft are operated in accordance with established
procedures and acceptable margins of safety.
(3) 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. Operators are
reluctant to share information from FOQA programs with the FAA, if such
information might be
[[Page 56773]]
subject to public disclosure. A significant impediment to the sharing
of FOQA 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 which constitute the primary reason for the establishment of
such programs. As a result, U.S. airlines participating in FAA approved
FOQA programs to date have not permitted aggregate FOQA data, and any
written information derived from analysis of such programs, to leave
the airline's premises. At present, no FOQA aggregate data is being
submitted to the FAA. This information is considered to be confidential
by the participating operators and their pilots. Withholding such
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 the safety
improvements that receipt of the information otherwise enables. The FAA
finds that reports prepared by an individual operator, or by the FAA,
based on analysis of the individual operator's FOQA data or aggregate
data, should be protected from public disclosure because, when such
reports are based on an individual operator's FOQA data, the identity
of the operator may be derived from that information. Unless the FAA
can assure protection of identity information, either such reports will
not be submitted by the operator, or specific information which could
enhance the safety value of the report will not be included in the
submission.
(4) 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 FOQA information aids in fulfilling
the FAA's safety and security responsibilities. Because of its capacity
to provide early objective information on emerging adverse safety
trends, thereby enabling remedial intervention, FOQA offers significant
potential for incident and accident avoidance. FAA experience to date
has clearly established that a FOQA program can produce objective
safety-related data that is not available from any other source. For
example, FOQA data concerning the frequency of unstable approaches on
landing as a function of specific airport and runway environment could
identify areas where improvements are needed in airline approach and
landing checklists, airline training, air traffic control procedures,
and in published airport approach and landing procedures. Receipt of
this hitherto unavailable objective information would provide the FAA
with an improved basis for modifying procedures, policies, and
regulations in order to improve safety and efficiency. To the extent
that operators would voluntarily supporting providing the FAA with
aggregate FOQA data, the FAA could also better serve as a national
safety information resource for aircraft operators.
(5) 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.
The FAA finds that withholding FOQA data or aggregate FOQA data
provide to the FAA from an approved FOQA program is consistent with the
FAA's safety responsibilities. An approved FOQA I&O Plan specifically
provides that correction action for adverse safety trends will be
initiated by the operator, and that the operator will inform the FAA
concerning that action. Correction action under FOQA can be
accomplished without disclosure of protected information. For example,
an operator could modify its pilot training program to place greater
emphasis on approach and landing procedures, and inform the FAA of that
training program modification.
The FAA will release FOQA information submitted to the agency as
specified in part 193 and this proposed order. In order to explain the
need for changes in FAA policies, procedures, and regulations, the FAA
may disclouse de-identified (no operator or pilot identity), summarized
information that has been derived from FOQA aggregate data or extracted
from the protected information listed above under What voluntarily
provided information would be protected from disclosure under this
proposed designation. The FAA may disclose de-identified, summarized
FOQA information that identifies a systemic problem in the aviation
system, when other persons need to be advised of the problem so that
they can take corrective action. The FAA may release the names of
operators who have approved FOQA I&O Plans.
(6) Summary of how the FAA will distinguish information protected
under Part 193 from information the FAA receives from other sources.
An operator's approved FOQA I&O Plan must specifically identify
what digital flight data will be included in the program, how that data
is defined, and provisions for FAA access to aggregate FOQA data. Any
FOQA data or aggregate FOQA data that is shared with the FAA will be
distinguished from information received from other sources, by virtue
of that information having been clearly pre-defined as FOQA information
in the FAA approved FOQA I&O Plan. Moreover, there do not exist any
provisions other than those provided under an approved FOQA I&O Plan
for sharing aggregate FOQA data with the FAA. Therefore, with regard to
aggregate FOQA data, it is not anticipated that there will be other
sources of that information.
The FAA acknowledges that operators are highly reluctant to share
sensitive FOQA information with the FAA, in part because of concerns
that even if the information is designated as protected under part 193,
it may still be inappropriately released by someone in the agency.
Therefore, the FAA anticipates that to be successful, any program for
FOQA information sharing will have to proceed on an incremental basis.
It will be incumbent on the FAA to demonstrate on a stepwise basis that
the measures it puts in place to protect FOQA information from
disclosure are in fact fully effective for that purpose. Initial
submissions under part 193 will be accomplished in the form of paper
reports consisting of aggregate FOQA information from one or more
airlines, with airline identity redacted. All such reports must be
clearly labeled as follows in order to be protected under this
designation ``WARNING: The Information in this Document Is Protected
from Disclosure under 49 U.S.C. 40123 and 14 CFR part 193. This
information May Be Released Only With Written Permission of the
Associate Administrator for Regulation and Certification.''
However, ultimately the FAA hopes to establish a secure internet
based methodology for the electronic acquisition of aggregate FOQA
data. Progress toward that goal will be contingent on successful
collaboration with industry to test, validate, and participate in the
use of such a system. If implemented, the system would employ digital
certificates to control access by all industry and FAA participants.
Only government personnel who acknowledge in writing their
understanding and acceptance of the restrictions on disclosure would be
issued digital certificates. The FAA would distinguish FOQA information
from other information, by virtue of the
[[Page 56774]]
fact that the planned electronic system would be dedicated to the
acquisition of aggregate FOQA data. It would automatically include part
193 disclosure warning notices on all opening screen pages, and on each
page of any paper printouts.
Proposed Designation
Accordingly, the Federal Aviation Administration hereby proposes to
designate the above-described information submitted under an approved
FOQA program to be protected under 49 U.S.C. 40123 and 14 CFR part 193.
Issued in Washington, DC, on August 27, 2002.
Nicholas A. Sabatini,
Associate Administrator for Regulation and Certification.
[FR Doc. 02-22269 Filed 9-4-02; 8:45 am]
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