Aviation Safety Action Program

1 PURPOSE OF THIS ADVISORY CIRCULAR (AC)

This AC provides guidance for establishing an Aviation Safety Action Program (ASAP). The objective of an ASAP is to encourage employees of air carriers, repair stations, or other entities (collectively referred to as “eligible entities”) to voluntarily report safety information that may be critical to identifying potential precursors to accidents. The Federal Aviation Administration (FAA) has determined that identifying these precursors is essential to further reducing the already low accident rate. The establishment of an ASAP is available to any eligible entity that has the resources and ability to effectively implement and operate an ASAP and is contingent upon the FAA’s capacity to effectively manage such an entity’s program. Under an ASAP, safety issues are resolved through corrective action rather than through punishment or discipline. The ASAP provides for the collection, analysis, and retention of the safety data obtained through the reporting process. ASAP participants use ASAP safety data, much of which would otherwise be unobtainable, to develop corrective actions for identified safety concerns, and to educate the appropriate parties to prevent a recurrence of the same type of safety event. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

2 AUDIENCE

This AC is directed to the persons referenced in paragraph 1.

3 WHERE YOU CAN FIND THIS AC

You can find this AC on the FAA’s website at http://www.faa.gov/regulations_policies/advisory_circulars.

4 WHAT THIS AC CANCELS

AC 120-66B, Aviation Safety Action Program (ASAP), dated November 15, 2002, is canceled.

5 DEFINITIONS

For more information on key terms and phrases related to an ASAP, see Appendix A, Definitions.

6 BACKGROUND

The primary objective of voluntary safety programs is to identify hazards and unsafe conditions in the National Airspace System (NAS) so that corrective action can be taken to eliminate or reduce the hazard or unsafe condition. Aviation safety is well served by incentives that encourage entities to establish programs to identify and correct their own instances of noncompliance while investing in the prevention of recurrences. The FAA’s policy of forgoing enforcement actions when one of these entities detects violations, discloses the violations to the FAA, and takes prompt corrective action to ensure that the same or similar violations do not recur is designed to encourage compliance with FAA regulations, foster safe operating practices, and promote the development and maturation of effective Internal Evaluation Programs (IEP) and Safety Management Systems (SMS).

7 PROGRAM ENHANCEMENTS

This AC incorporates the following enhancements:

8 APPLICABILITY

ASAPs, for the purposes of this AC, are designed for eligible entities. The FAA approves each program on a case-by-case basis with respect to resources and program requirements. The eligible entity’s ASAP may cover employees of a contractor only if contractual arrangements between the parties specifically provide that the contractor and its employees abide by the terms of the applicable ASAP Memorandum of Understanding (MOU) and the decisions of the eligible entity’s ERC. In order for the program to cover contract employees, the applicable ASAP MOU stipulates that such contractual arrangements are in place.

9 ENFORCEMENT-RELATED INCENTIVE

In order to encourage participation in the ASAP, the FAA assures that no action will be used to address apparent violations of the regulations, unless specifically excluded, as explained in paragraph 16.

10 COMPLIANCE PROGRAM

In order to promote the highest level of safety and compliance with regulatory standards, the FAA is implementing SMS constructs based on comprehensive safety data sharing between the FAA and the aviation community. To foster this open and transparent exchange of data, the FAA believes that the current edition of FAA Order 8000.373, Federal Aviation Administration Compliance Program, supported by an established safety culture, is instrumental in ensuring both compliance with regulations and the identification of hazards and management of risk. When deviations from regulatory standards do occur, the FAA’s goal is to use the most effective means to return an individual or entity that holds an FAA certificate, approval, authorization, permit, or license to full compliance and to prevent recurrence. Effective October 1, 2015, administrative actions are not processed for accepted ASAP reports and are no longer required for Voluntary Disclosure Reporting Program (VDRP) disclosures.

11 INFORMATION SUBMISSION

An ASAP report provides a vehicle whereby employees of participating companies with an established ASAP MOU can identify and report safety issues to management and to the FAA for resolution. The ASAP is designed to encourage participation from various employee groups (e.g., pilots, mechanics, flight attendants, dispatchers, and ramp workers).

12 CONTINUING PROGRAMS

The FAA now categorizes all ASAPs as continuing programs. These programs are subject to a review by the signatories to the MOU every 2 years to ensure appropriate objectives are met. In addition, FS conducts random reviews to collect information, data, and feedback from participants that will validate whether objectives of the program are being achieved and properly documented.

Note: All current programs to transition to the new MOU template within 90 calendar-days of the effective date of this AC.

13 ERC

An ERC is a group comprised of a representative, and alternate, if possible, from each party to an ASAP. The ERC is comprised of a management representative from the eligible entity, a representative from the employee group or employee labor association (if applicable), and a specifically qualified FAA inspector from the appropriate Flight Standards office. (Refer to FAA Order 8900.1, Volume 11, Chapter 2, Section 1, Safety Assurance System: Aviation Safety Action Program.)

13.1 Attendance vs. Participation

FAA participation in ERCs is essential. The FAA ERC representative should be diligent with respect to his or her participation and promotion of the program. Reports associated with criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification (“the Big Five”), regulatory noncompliance, reckless conduct, or a medical certification or qualification issue require FAA attendance with the ERC. However, for reports that are not associated with such conduct, FAA attendance at certain ERC meetings may not be necessary, at the direction of the FAA ERC member. Prior to the ERC meeting, the ASAP manager provides the ASAP reports that the ERC will review at that meeting so that the FAA ERC member can determine whether his or her attendance at the meeting is necessary. (See paragraph 13.3.) Additionally, for ERC meetings not attended by the FAA ERC member, the ASAP manager provides the FAA ERC member with the minutes from such meetings so that he or she can ensure appropriate safety-based responses.

13.2 ERC Responsibilities

13.3 ASAP Manager Responsibilities

The eligible entity should select an ASAP manager to serve as the program administrator. When third-party facilitators are involved, they too may fill this role. In some cases (while not ideal), the ASAP manager is also the company management representative to the ERC and may perform both functions. The ASAP manager is responsible for the following:

14 PROCESSING REPORTS

14.1 Consensus of the ERC

The success of an ASAP is built on the ability of the ERC to achieve consensus on each event that is reported. Consensus of the ERC means the voluntary agreement of all voting representatives on the ERC.

14.1.1 Reaching a Consensus. The ERC reaches a consensus when deciding whether to accept a report into the program and when deciding on corrective action recommendations arising from the event. It does not require that all members believe that a particular decision or recommendation is the most desirable solution, but that the result falls within each member’s range of acceptable solutions for that event in the best interest of safety. In order for this concept to work effectively, the ERC representative is empowered to make decisions within the context of the ERC discussions on a given report. Management for the parties to an ASAP MOU should not preempt their respective ERC representative’s decision-making discretion for an event reported under the ASAP. If the parties to an ASAP MOU do not permit their respective ERC representative to exercise this discretion, the capacity of the ERC to achieve consensus will be undermined and the program will ultimately fail.

14.1.2 Consensus Cannot Be Achieved. The FAA retains all its legal authority and responsibilities contained in Title 49 of the United States Code (49 U.S.C.) and referenced in the current edition of FAA Order 2150.3, FAA Compliance and Enforcement Program. In the event there is not a consensus of the ERC on decisions concerning a report involving an apparent violation(s), or a medical certification or qualification issue, the FAA ERC representative decides whether to accept or reject the report.

14.2 Reports Involving High-Profile Events

ERC members should communicate in a timely manner with management for the parties to an ASAP MOU (i.e., FAA, eligible entity, and labor group, if applicable) when an ASAP report involves potentially controversial issues and high-profile safety-related events. The ERC should brief management on the nature of such issues and events, the associated results of the ERC investigation, and the disposition of the report. The ERC and management protect confidential details of the report during such communications.

14.3 Use of Obtained Information

Information obtained from the ASAP permits participants to identify actual or potential risks throughout their operations. Once identified, the parties to an ASAP can implement corrective actions in order to reduce the potential for accidents, incidents, and other safety-related events. The parties should use de-identified ASAP information for mission-pertinent purposes, such as developing internal evaluation strategies, risk mitigation plans, and policy development. In order to gain the greatest possible benefit from the ASAP, it may be necessary for eligible entities to develop programs with compatible data collection, analysis, storage, and retrieval systems. ASAP participants can use the information and data that has been collected and analyzed as a measure of a safety culture.

14.3.1 Reports Involving Medical Certification and Qualification Issues. If the ERC becomes aware of an issue involving the medical qualification or medical certification of an airman, the ERC immediately advises the appropriate Regional Flight Surgeon (RFS) about the issue. The ERC works with the RFS and the eligible entity’s medical department or medical consultants to resolve any issues or concerns revealed in an ASAP report or through the processing of that report. The FAA ERC member follows the direction(s) of the RFS with respect to any medical certification or qualification issue(s) revealed in an ASAP report.

14.3.2 Violations by Eligible Entities. If appropriate, the FAA may handle apparent violations by eligible entities disclosed through a safety-related ASAP report under the VDRP. Refer to the current editions of AC 00-58, Voluntary Disclosure Reporting Program, Order 2150.3, and Order 8900.1. A voluntary disclosure can still be accepted by the FAA, even though the FAA has already learned of the violation from the ASAP.

14.3.3 Corrective Actions Utilized Within the VDRP. The FAA may, at its sole discretion, accept the corrective action recommended by an ASAP ERC for an accepted ASAP report (even when an apparent employee qualification or competency issues is involved) as all or part of the comprehensive fix for the voluntary disclosure under the following conditions:

14.4 Nonreporting Employees Covered Under an ASAP MOU

If an ASAP report identifies another covered employee of the eligible entity in a possible violation, and that employee has neither signed that report nor submitted a separate report, the ERC determines on a case-by-case basis whether to offer the nonreporting employee the opportunity to submit an ASAP report. If the nonreporting employee submits a report within the acceptable timeframe established by the ERC, that report is afforded the same consideration under the ASAP as that accorded the report from the original reporting employee, provided the report meets all other ASAP acceptance criteria. However, if the nonreporting employee fails to submit a report within the timeframe allotted after notification, the possible violation by that employee is referred to the appropriate office within the FAA for additional investigation and action (as appropriate) and for referral to law enforcement authorities, if warranted.

14.5 Nonreporting Employees Not Covered Under an ASAP MOU

If an ASAP report identifies another employee of the eligible entity who is not covered under the eligible entity’s MOU, and the report indicates that employee may have been involved in a possible violation, the ERC determines on a case-by-case basis whether it would be appropriate to offer that employee the opportunity to submit an ASAP report. If the ERC determines that it is appropriate, the ERC provides that employee with information about the ASAP and invites the employee to submit an ASAP report. If the employee submits an ASAP report within a timeframe acceptable to the ERC, that report is accepted under the ASAP, provided it meets all other ASAP acceptance criteria. If the employee fails to submit a report within an acceptable timeframe established by the ERC, the FAA ERC member refers the possible violation by that employee will be referred to the appropriate office within the FAA for additional investigation and action (as appropriate) and for referral to law enforcement agencies, if warranted.

15 CORRECTIVE ACTION

Corrective actions are developed by the ERC in order to address deficiencies discovered during an ERC investigation. They may consist of training, mentoring, counseling, or other options that the ERC may determine are the best course of action to undertake to resolve the issue. The ERC develops corrective actions and works with the eligible entity to implement those corrective actions in order to counter adverse risks and trends. The ERC excludes ASAP reports if the employee fails to complete corrective action for an apparent violation, or a medical certification or qualification issue, in a manner acceptable to the ERC. The FAA ERC member then refers the event to an FAA office (in accordance with paragraph 16.3) for additional investigation and/or FAA action. The ERC may recommend corrective action for any safety issue identified within an accepted report. Official training records and personnel files should not reflect corrective actions associated with the ASAP (refer to the Pilot Records Improvement Act of 1996 (PRIA) and the current edition of AC 120-68, Pilot Records Improvement Act of 1996). All corrective actions should be documented and retained in the ASAP database.

15.1 Corrective Action for Qualification Issues

The ERC addresses accepted reports involving competence or qualification of certificate, license, or permit holders with appropriate corrective action, which may include retraining or reexamination. Reluctance or failure to adopt methods to remediate noncompliance or instances of repeated noncompliance are handled by the FAA in accordance with Order 2150.3.

15.2 Corrective Action for Systemic Issues

For corrective action regarding systemic issues by an eligible entity:

Note: Any recommended corrective action that is not implemented is recorded in the ASAP database along with the reason why it was not implemented.

16 INVESTIGATIONS AND USE OF REPORTS

Under the FAA’s governing statute, regulations, and agency policy, the FAA investigates statutory and regulatory noncompliance and takes appropriate action in response to noncompliance.

16.1 Accepted Reports

The FAA takes no action against an employee who submits a report that is accepted (and not subsequently excluded). No FAA correspondence outside the ERC is necessary. Such reports are closed with an ERC response to the submitter after the ERC determines to its satisfaction that the submitter has properly completed the corrective action (if any).

16.2 Reports Excluded Based on the Big Five

The FAA ERC representative refers events that are excluded based on the Big Five (see paragraph 13.1) to the appropriate FAA office for investigation. The FAA may use the entire content of such a report, including the content of the ERC investigation and/or interviews concerning the reported event, as evidence in any FAA investigation and FAA action. The FAA may refer reports of the Big Five to law enforcement agencies, if appropriate. The company also may use reports excluded based on the Big Five to initiate or support company discipline. Upon completion of a subsequent investigation, if the FAA determines that the event did not involve the Big Five, then it refers the report back to the ERC for a determination of acceptability under the ASAP. The ERC accepts such reports under the ASAP, provided they otherwise meet the acceptance criteria.

16.3 Reports Excluded for Reasons Other Than the Big Five

If the ERC excludes a report for reasons other than those related to the Big Five (e.g., reckless or intentional violation conduct not involving the Big Five, violations outside the scope of employment, repeated noncompliance), the FAA ERC representative communicates his or her knowledge of the event to the appropriate FAA office for possible investigation. The FAA may use its knowledge of the event referred by the FAA ERC member to prompt an independent investigation of the apparent violation(s) and to initiate an FAA action against the employee. The “knowledge of the event” under this paragraph includes the date, time, location, flight number, aircraft tail number, and related information, as well as the apparent noncompliance disclosed in the ASAP report. (Refer to Order 8900.1, Volume 14, Chapter 3, Section 12, Events Excluded from an Aviation Safety Action Program.) An “independent investigation” as referenced in this paragraph is one in which the FAA uses the knowledge of the event to conduct the investigation, but does not obtain other information concerning the apparent violation(s) from the ERC or from the ASAP report (except that the FAA may obtain information regarding corrective action on a non-sole-source report). The FAA determines the appropriate action by following the Compliance Action Decision Process (CADP). (Refer to Order 8900.1, Volume 14, Chapter 1, Section 2, Flight Standards Service Compliance Action Decision Procedure.)

16.4 Reports That are Non-Sole-Source

The FAA considers an ASAP report to be non-sole-source when the FAA has evidence that an apparent violation that is not discovered pursuant to, or otherwise predicated on, an ASAP report (e.g., whistleblower/hotline complaints, reports from air traffic control (ATC) involving airspace deviations, incident reports, and accident reports). The FAA investigates apparent violation(s) based on evidence independent of an ASAP report, regardless of whether the associated non-sole-source report was accepted or excluded (see paragraph 17.1). The FAA may use the reports as specified in paragraph 16.2 and knowledge of the event as specified in paragraph 16.3 to conduct the investigation. Any action the FAA takes is in accordance with paragraph 16.

Note: Except as otherwise provided in paragraph 16, no portion of the written ASAP report, including an ERC investigation or interview(s) concerning a reported event, is used to initiate or support company discipline or FAA enforcement action. This policy applies regardless of whether the ERC accepts or excludes the report. The company retains its authority to take disciplinary action based on information of an event independently obtained by the company (i.e., information not based or otherwise predicated upon the content of an employee’s ASAP report).

17 FLIGHT STANDARDS OFFICE ERC REPRESENTATIVE

The Flight Standards office ERC representative is empowered to complete ASAP investigations and is responsible for coordinating all corrective actions in accordance with the current editions of the following FAA orders effective at the time of the event, as applicable:

17.1 The ERC determines whether or not a reported event meets the criteria for acceptance into an ASAP in accordance with the applicable orders and through the ERC process. If an event meets the criteria and is accepted into the ASAP by the ERC, the FAA transfers all jurisdiction and responsibility for the completion of compliance and enforcement investigations related to the event to the appropriate Flight Standards ERC representative (even if an enforcement investigation has been previously opened outside of the ASAP). The appropriate Flight Standards office completes preliminary incident or pilot deviation (PD) reports in accordance with current FAA guidance materials regarding such reports, regardless of whether the employee submitted an ASAP report that reported the event. The FAA office having jurisdiction over the eligible entity completes preliminary incident or PD reports involving the eligible entity’s employees.

18 GUIDELINES FOR EXCLUSION OF REPORTS UNDER THE ASAP

This paragraph discusses exclusion criteria for ASAP reports.

18.1 Timeliness

Past iterations of ASAP policy emphasized strict time period requirements as a condition for acceptance of reports. While timeliness considerations are generally still a relevant factor in whether the ERC accepts a report, the responsibility of the ERC is now to review all information available and determine whether acceptance of the report is in the best interest of safety. Timeliness considerations do not apply to sole-source reports.

18.2 Reckless Conduct

Reports of an apparent violation involving reckless conduct are excluded. Reckless conduct is an act (or failure to act) demonstrating a gross disregard for, or deliberate indifference to, safety or a safety standard.

18.3 Intentional Conduct

Reports involving intentional conduct are excluded. Intentional conduct is an act (or failure to act) while knowing that such conduct is contrary to a regulation or statute, or is otherwise prohibited.

Note: There is a narrow circumstance under which the ERC considers acceptance of a report despite the intentionality of a violation. Under 14 CFR part 91, § 91.3(b), in an in-flight emergency requiring immediate action, the pilot in command (PIC) may deviate from any rule in 14 CFR part 91 to the extent required to meet that emergency. In considering accepting the report, the ERC should evaluate whether such action maybe have been the safest course given the circumstances at the time of the incident. If the deviation was the result of an event outside of the control of the pilot or not otherwise evidencing a lack of due diligence (e.g., to address a flight-threatening mechanical malfunction), the ERC may determine that acceptance of the report is appropriate.

18.4 The Big Five

Reports that appear to involve possible criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification are excluded. Upon completion of a subsequent investigation, if it is determined that the event did not involve any of the aforementioned activities, then the FAA office refers the report back to the ERC for a determination of acceptability under the ASAP. Such reports are accepted under the ASAP, provided they otherwise meet the acceptance criteria.

18.5 Events Occurring Outside the Scope of Employment

Reports of events that directly involve an employee but that occurred while he or she was acting outside the scope of his or her employment for the eligibility entity are excluded.

18.6 Repeated Noncompliance

The ERC may determine through consensus to exclude a report that reflects an instance of a repeated act of the same or similar noncompliance by the same individual due to a common root cause that the ERC previously accepted and addressed with corrective action under the ASAP.

19 REOPENING REPORTS BASED ON NEW EVIDENCE

The ERC may reopen a closed ASAP report and take appropriate action if the ERC (or the FAA) later discovers evidence that establishes that the violation should have been excluded from the program.

19.1 Closing a Report

The ERC should not close a report until all member investigations concerning the event are completed.

19.2 Best Practices

The ERC may make additional safety recommendations based on the new information, if appropriate. For more information, refer to Best Practices for Event Review Committees at https://www.faa.gov/about/initiatives/asap/policy/.

20 PROTECTION OF VOLUNTARILY SUBMITTED ASAP INFORMATION

Under 49 U.S.C. § 40123, Protection of Voluntarily Submitted Information, and as implemented by 14 CFR part 193 and the current edition of FAA Order 8000.82, Designation of Aviation Safety Action Program (ASAP) Information as Protected from Public Disclosure Under 14 CFR Part 193, certain voluntarily provided safety and security information may be protected from public disclosure in order to encourage persons to provide the information to the FAA.

21 EMPLOYEE FEEDBACK

The full value of an ASAP can only be known and understood if management for the parties to an ASAP MOU provides open and meaningful feedback to employees regarding the operation and results of the program, including corrective action taken in response to a report. Such feedback should be shared openly and honestly with all stakeholders (e.g., the submitter, other safety-sensitive employees), while maintaining the protection of confidentiality. Making the impact of the ASAP on safety visible and sustaining this visibility over time is important for building and maintaining trust in and buy-in to the program.

22 RECORDKEEPING

The parties should maintain those records necessary for an ASAP’s administration and evaluation and as required by law. Records submitted to the FAA for review relating to an ASAP are protected to the extent allowed by law.

22.1 Database

Upon initiation of an ASAP, eligible entities should implement a comprehensive electronic database system for report submission, data acquisition, comprehensive event categorization, risk analysis, and data trending. The eligible entity is free to develop or acquire whichever system best meets its needs for program management.

22.2 Safety Data Collection, Analysis, and Retention Processes

Each ASAP maintains a comprehensive database for the electronic collection and aggregation of ASAP data. Through the use of de-identified information from that database, the parties to the MOU review data, identify and analyze trends, and target resources in an effort to mitigate risks. The eligible entity should retain safety-related information for a sufficient period of time for the ERC to determine whether its recommended corrective actions have been effective, but not less than 2 years.

22.3 Quarterly Reports on Safety Enhancements

The fundamental purpose of an ASAP is to enhance safety. The FAA maintains an audit trail of the extent to which the program is achieving that objective. The manager of the FAA office having oversight responsibilities for the eligible entity prepares a summary report of safety enhancements achieved each quarter by each eligible entity’s ASAP(s). The office manager sends quarterly reports by electronic mail to the appropriate Flight Standards office using the report format provided. (Refer to Order 8900.1, Volume 11, Chapter 2, Section 1.) The ASAP Office receives quarterly reports electronically. Aggregate information is available on an FAA internal Tableau site (ASAP VUE), access to which is available to any FS inspector upon request to the ASAP Office. The information is protected from public release under Order 8000.82 and part 193.

22.4 Annual Review

The ERC conducts an annual review of the ASAP database with emphasis on determining whether corrective actions have been effective in preventing or reducing the recurrence of safety-related events.

23 MOU ACCEPTANCE

23.1 Review

The eligible entity should initially develop and present the program to the appropriate Flight Standards office for review. The FAA does not accept MOUs that deviate from the provisions in this AC (see the MOU template in Appendix C, FAA ASAP Memorandum of Understanding Template).

23.2 Procedures

All ASAPs, whether new or previously established, will enter as continuing programs. Each eligible entity should access the website (https://www.faa.gov/about/initiatives/asap/) and complete the MOU template, then download a copy for signature. A copy of the signed MOU is retained by the appropriate Flight Standards office. The office manager notifies the FS ASAP office through email once the MOU is signed by all parties. The FAA will review the continuing program every 2 years to ensure its objectives are met. The review is accomplished by all signatories.

23.3 Withdrawal

Regardless of the duration of an ASAP, any party to an MOU may withdraw at any time and for any reason.

24 ASAP INTERFACE WITH THE ELIGIBLE ENTITY’S SMS

According to the current edition of AC 120-92, Safety Management Systems for Aviation Service Providers, and 14 CFR part 5, § 5.71, the FAA’s SMS framework specifies that the aviation service provider provides a means for employees to communicate safety information to management without fear of reprisal. The ASAP is a viable option to meet this SMS requirement. If an operator elects this option, it should work collaboratively with the ERC to establish the specifics for program administration.

25 PROGRAMS REPRESENTED BY A THIRD-PARTY FACILITATOR

25.1 The eligible entity should initiate the application process by contacting the local FAA office and submitting a request to start an ASAP. All parties, including the FAA, eligible entity, employee labor group, and third-party facilitator work together to develop processes and procedures to implement the program.

25.2 The third-party facilitator provides a briefing to the FAA office, eligible entity’s management, and ERC representatives on program requirements. An ASAP should not be initiated until all parties commit to the provisions of the program. The FAA determines whether a program is accepted.

25.3 The office manager signs the MOU and coordinates through the appropriate Flight Standards office for administrative purposes. Third-party facilitators include a cover sheet to distinguish the parameters for their respective programs.

25.4 New ASAPs initiated under the purview of a third-party facilitator (e.g., Air Charter Safety Foundation (ACSF), the Medallion Foundation, the Web-Based Analytical Technology for Aviation Safety, Inc. (WBAT-FAS), Universal Technical Resource Services, Inc. (UTRS), or others) enter as continuing programs. The parties to the MOU review the ASAP every 2 years to ensure that it continues to meet its objectives.

25.5 The FS ASAP office provides oversight of ASAPs administered under the purview of third-party facilitators, to include periodic audits to ensure quality and consistency of training as well as effective and timely implementation of ongoing programs.

25.6 All third-party facilitators should provide an annual report to the FS ASAP office describing the overall safety climate for programs covered by their organization. The third-party facilitator conducts an annual review of the ASAP database with emphasis on determining whether corrective actions have been effective in preventing or reducing the recurrence of safety-related events of a similar nature. This review includes recommendations for corrective action for recurring events indicative of adverse safety trends, the most reported event categories, risk analysis, event categorization, the number of reports submitted by an operator and employee group, and recommended program improvements.

26 POLICY AND PROCEDURES MANUAL

The ERC is encouraged to develop and maintain a manual of policies and procedures that best represents their operational environment. This manual can be used as a resource for current and future ASAP managers, ERC members, and stakeholders by providing important ASAP information such as ERC processes. Listed below are a few suggested processes to incorporate:

27 INFORMATION AND TRAINING

The eligible entity provides each participating employee and manager with written guidance outlining the details of the program at least 2 weeks before the program begins. Each participating employee group also receives additional instruction concerning the program during the next regularly scheduled recurrent training session and on a continuing basis in recurrent training thereafter. All new-hire employees receive training on the program during initial training.

28 INFORMATION UPDATE/LESSONS LEARNED

As the FAA and industry gain experience with ASAPs, FAA ASAP policy will continue to evolve to reflect lessons learned. FS established the FAA ASAP website at http://www.faa.gov/about/initiatives/asap to serve as a reference source for the ERCs to develop their program operating procedures and provide the current information on FAA ASAP policy updates.

Robert C. Carty Deputy Executive Director, Flight Standards Service

APPENDIX A. DEFINITIONS

A.1 Acceptance

The terms “accept(s),” “accepted,” and “acceptance,” and references to ASAP reports that meet “acceptance criteria,” refer to such reports that are accepted as valid reports under the presumption in the FAA Reauthorization Act of 2018 and that the ERC, after review, determined should not be excluded under paragraph 18 of this AC.

A.2 ASAP Facilitator

A third party who provides personnel, expertise, and/or time in order to design, implement, manage, or maintain an eligible entity’s ASAP.

A.3 ASAP Manager

The company representative or ASAP facilitator serving as the focal point for program administration.

A.4 “Big Five.” Reports associated with criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification.

A.5 Consensus of the Event Review Committee (ERC)

Under an ASAP, consensus of the ERC means the voluntary agreement of all representatives of the ERC to each decision outlined by the Memorandum of Understanding (MOU).

A.6 Corrective Action

For the purposes of an ASAP, corrective action refers to any safety-related action determined necessary by the ERC based upon a review, investigation, and analysis of the reports submitted under an ASAP. Corrective action can be recommended by the ERC for any safety issue identified in an accepted ASAP report, regardless of whether or not it involves an individual’s qualification issue. Corrective action may involve joint or individual action by the parties to the MOU.

A.7 Enforcement-Related Incentive

The assurance that no enforcement action will be used to address certain apparent violations of the regulations.

A.8 Event Review Committee (ERC)

A group comprised of a representative from each party to an ASAP MOU. The ERC is comprised of a management representative from the eligible entity, a representative from the employee labor association (if applicable), and a specifically qualified FAA inspector from the appropriate Flight Standards office (refer to FAA Order 8900.1, Volume 11, Chapter 2, Section 1, Safety Assurance System: Aviation Safety Action Program).

A.9 Intentional Conduct

An act (or failure to act) while knowing that such conduct is contrary to a statutory or regulatory requirement.

A.10 Intentional Falsification

A false statement in reference to a material fact made with knowledge of the falsity. It does not include mistakes, inadvertent omissions, or errors.

A.11 Memorandum of Understanding (MOU)

Refers to the written agreement between two or more parties setting forth the purposes for, and terms of, an ASAP.

A.12 Non-Sole-Source Report

The ERC considers a report to be non-sole-source when evidence of the event is not discovered by, or otherwise predicated on, the ASAP report.

A.13 Party/Parties

This refers to the eligible entity, the FAA, and any other person or entity (e.g., labor union or other industry or government entity) that is a participant in the program.

A.14 Person

“[A]n individual, firm, partnership, corporation, company, association, joint-stock association, or government entity. It includes a trustee, receiver, assignee, or similar representative of any of them.” (Refer to 14 CFR part 1, § 1.1.)

A.15 Policy and Procedures Manual

A manual that outlines the operating procedures of the ERC as well as its duties and responsibilities.

A.16 Reckless Conduct

An act (or failure to act) demonstrating a gross disregard for, or deliberate indifference to, safety or a safety standard.

A.17 Risk Controls

Steps taken to eliminate hazards or to mitigate their effects by reducing the severity and/or likelihood of risk associated with those hazards (e.g., regulations, standards, and policies).

A.18 Safety Management System (SMS)

The formal, top-down business approach to managing safety risk, which includes a systemic approach to managing safety, including the necessary organizational structures, accountabilities, policies, and procedures. (Refer to the FAA SMS web page at https://www.faa.gov/about/initiatives/sms/.)

A.19 Safety-Related Report

Refers to a written account of any event that involves aviation safety reported through an ASAP.

A.20 Sole-Source Report

The ERC considers a report to be sole-source when all evidence of the event available is predicated on the ASAP report.

Note: It is possible to have more than one sole-source report for the same event.

A.21 Voluntary Disclosure Reporting Program (VDRP)

A policy-based program under which regulated entities may voluntarily report apparent violations of the regulations and develop corrective action satisfactory to the FAA to preclude their recurrence.

APPENDIX B. ACCEPTANCE OF VOLUNTARILY PROVIDED SAFETY INFORMATION—FAA REAUTHORIZATION ACT OF 2018, SECTION 320

“(a) IN GENERAL.—There shall be a presumption that an individual’s voluntary report of an operational or maintenance issue related to aviation safety under an aviation safety action program meets the criteria for acceptance as a valid report under such program.

Note: If the ERC subsequently determines that a disclosure meets exclusionary criteria, the provisions and protections of the current edition of FAA Order 8000.82, Designation of Aviation Safety Action Program (ASAP) Information as Protected from Public Disclosure Under 14 CFR Part 193, do not apply.

APPENDIX C. FAA ASAP MEMORANDUM OF UNDERSTANDING TEMPLATE

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MEMORANDUM OF UNDERSTANDING (MOU) We the parties of this MOU agree to work together to review, analyze, and resolve safety events submitted to the Aviation Safety Action Program (ASAP). This MOU is between the Federal Aviation Administration (FAA), ABC Airlines, and participating labor groups for employees if they wish to participate.

1. OPERATOR INFORMATION

ABC Airlines (ABCA) holds an air carrier operating certificate issued under 14 CFR part 119 and conducts its operations as authorized in ABCA’s operations specifications (OpSpecs) issued pursuant to 14 CFR part 121. ABCA operates approximately [XXX] aircraft, and employs approximately [XXX] employees related to this MOU.

2. PURPOSE OF THIS MOU

The FAA, ABCA, and any participating labor groups are committed to improving flight safety. Each party has determined that safety is enhanced if there is a systematic approach for employee groups to promptly identify and correct potential safety hazards. The primary purpose of the ABCA ASAP is to identify safety events and to implement corrective measures that reduce the opportunity for safety to be compromised. In order to facilitate flight safety analysis and corrective action, the FAA, ABCA, and the participating employee labor groups agree to implement this ASAP voluntarily. This ASAP is intended to improve organizational safety through self-reporting, cooperative followup, and appropriate corrective action. This ASAP is based on a safety partnership that includes the FAA and the eligible entity, and may include a third party, such as the employee’s labor group or safety organization serving as an ASAP facilitator. To encourage an employee to voluntarily report safety issues, enforcement-related incentives have been designed into the program.

3. BENEFITS

The program will foster a voluntary, cooperative, nonpunitive environment for the open reporting of safety concerns. Through such reporting, all parties will have access to valuable safety information that may not otherwise be obtainable. This information will be analyzed in order to develop mitigation strategies and employee corrective actions if necessary to help solve safety issues and possibly eliminate deviations from Title 14 of the Code of Federal Regulations. For a report accepted under this ASAP MOU, the FAA will not use any enforcement action to address certain apparent violations of the regulations. This policy is referred to in this MOU as an “enforcement-related incentive.”

4. APPLICABILITY

The ABCA ASAP applies to all participating ASAP employees of ABCA and only to events that occur while acting within the scope of their employment with ABCA. Reports of events involving apparent noncompliance with Title 14 of the Code of Federal Regulations that appear to involve intentional or reckless conduct, criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification are excluded from the program. Reports of events that directly involve an employee, but that occurred while he or she was acting outside the scope of his or her employment for the eligible entity, are also excluded.

5. DECISION MAKING

The success of an ASAP is built on the ability of the event review committee (ERC) to achieve consensus on the acceptance or exclusion of each event that is reported. Consensus of the ERC means the voluntary agreement of all representatives of the ERC. The ERC reaches a consensus when deciding whether to accept a report into the program and when deciding on corrective action recommendations related to the reporter, arising from the event (except as provided in paragraph 6 below).

6. AUTHORITY

This agreement is entered into under the authority of Title 49 of the United States Code (49 U.S.C.) § 106(l) and (m). The FAA retains all of its legal authority and responsibilities contained in 49 U.S.C., as referenced in FAA Order 2150.3, FAA Compliance and Enforcement Program (as amended), and in the FAA compliance and enforcement program. In the event there is not a consensus of the ERC on decisions concerning a report involving an apparent violation(s), reckless or intentional conduct, or a qualification or medical certification issue, the FAA ERC representative decides whether to accept or reject the report.

7. TERMS OF THIS AGREEMENT

All ASAPs, whether new or previously established, enter as continuing programs. A review of a continuing program is required every 2 years to ensure its objectives are met. The review is accomplished by all signatories of the MOU.

8. VOLUNTARY WITHDRAWAL

Any signatory party to the MOU may withdraw from the MOU at any time and for any reason. The withdrawal of a party, or the termination or modification of a program, will not adversely affect anyone who acted in reliance on the terms of a program in effect at the time of that action (i.e., when a program is terminated, all reports and investigations that were in progress are to be handled under the provisions of the program until they are completed).

9. POINTS OF CONTACT

The ERC is comprised of a management representative from the eligible entity, a representative from the employee labor group (if applicable), and a specifically qualified FAA inspector from the appropriate Flight Standards office for ABCA, or his or her designated alternates as appropriate. In addition, ABCA will designate one person who will serve as the ASAP manager. The ASAP manager will be responsible for program administration, including the development and regular maintenance/updating of an ASAP manual or other process document that defines the nature, policy, and procedures of the ASAP and its participants. In some cases (while not ideal), the ASAP manager is also the company management representative to the ERC and may perform both functions. Management officials (other than the airline representative) of any party to this MOU should not be voting members of the ERC and should refrain from influencing any ERC decisions.

10. ACCEPTANCE POLICY

The following criteria are met in order for a report to be accepted under the ASAP:

(1) ASAP reports are accepted unless excluded by one of the criteria listed below:

Note: There is a narrow circumstance under which the ERC considers acceptance of a report despite the intentionality of a violation. Under 14 CFR part 91, § 91.3(b), in an in-flight emergency requiring immediate action, the pilot in command (PIC) may deviate from any rule in 14 CFR part 91 to the extent required to meet that emergency. In considering accepting the report, the ERC should evaluate whether such action may have been the safest course given the circumstances at the time of the incident. If the deviation was the result of an event outside the control of the pilot or not otherwise evidencing a lack of diligence (e.g., to address a flight-threatening mechanical malfunction), the ERC may determine that acceptance of the report is appropriate.

Note: The ERC may exclude a report that reflects an instance of a repeated act of the same or similar noncompliance by the same individual due to a common root cause that was previously accepted and addressed with corrective action under the ASAP.

(2) Timeliness. In past iterations of ASAP policy, emphasis was placed on meeting strict time period requirements as a condition for acceptance of reports. While timeliness considerations are generally still a relevant factor in determining whether to accept a report, the responsibility of the ERC is now to review all information available and determine whether acceptance of the report is in the best interest of safety. Timeliness considerations do not apply to sole-source reports.

11. EMPLOYEE FEEDBACK

The ASAP manager, in coordination with the ERC, publishes pertinent event recaps, data, and trend information derived from filed and processed reports, and ASAP analysis in accordance with ABCA’s defined procedures. Any employee who submitted a report may also contact the ASAP manager to inquire about the status of his or her report. In addition, each employee who submits a report accepted under the ASAP receives individual feedback on the final disposition of the report.

12. INFORMATION AND TRAINING

Each ABCA participating employee and manager receives written guidance outlining the details of the program at least 2 weeks before the program begins. Each participating employee group also receives additional instruction concerning the program during the next regularly scheduled recurrent training session, and on a continuing basis in recurrent training thereafter. All new-hire employees receive training on the program during initial training.

13. RECORDKEEPING

All documents and records regarding this program are kept by the ABCA ASAP manager and made available to the other parties of this agreement at their request. The parties should maintain those records necessary for a program’s administration and evaluation and as required by law. Records submitted to the FAA for review relating to an ASAP are protected to the extent allowed by law.

14. DEVELOP A POLICY AND PROCEDURES MANUAL

The ERC is encouraged to develop and maintain a manual outlining ASAP processes and procedures for reviewing and analyzing reports. Information for developing this manual can be located on the FAA Flight Standards ASAP website at http://www.faa.gov/about/initiatives/asap under “Lessons Learned for ERC’s Policy and Procedures.”

15. SIGNATORIES

All parties to this ASAP are entering into this agreement voluntarily. Labor Group Manager Name (if applicable): __________________________ Labor Group Manager Signature (if applicable): _______________________

Date: __________________

Company Executive Name: _______________________________________________ Company Executive Signature: ____________________________________________

Date: __________________

FAA Appropriate Flight Standards Office Manager Name: __________________________ FAA Appropriate Flight Standards Office Manager Signature: _______________________

Date: __________________