13 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
14 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:
• ASAP-specific documents and/or resources to facilitate the ERC’s review process across meetings. These may include AC 120-66, Order 8900.1, Order 2150.3, the eligible entity’s MOU, an ASAP Decision Flow Chart, event and causal contributor taxonomies, a risk matrix, best practices, and lists of potential corrective actions and/or recommendations.
• ERC rules, such as how to handle difficult decisions, when to use certain corrective actions, and how to participate in meetings (i.e., rules of conduct). These may be formal rules that are established at the program’s initiation or rules developed over time.
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.
ORIGINAL SIGNED by /s/ Robert C. Carty Deputy Executive Director, Flight Standards Service
Appendix A A-1 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.
Appendix A A-2 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 B-1 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.
(b) DISCLAIMER REQUIRED.—Any dissemination, within the participating organization, of a report that was submitted and accepted under an aviation safety action program pursuant to the presumption under subsection (a), but that has not undergone review by an event review committee, shall be accompanied by a disclaimer stating that the report—
(1) has not been reviewed by an event review committee tasked with reviewing such reports; and
(2) may subsequently be determined to be ineligible for inclusion in the aviation safety action program.
(c) REJECTION OF REPORT.—
(1) IN GENERAL.—A report described under subsection (a) shall be rejected from an aviation safety action program if, after a review of the report, an event review committee tasked with reviewing such report, or the Federal Aviation Administration member of the event review committee in the case that the review committee does not reach consensus, determines that the report fails to meet the criteria for acceptance under such program.
(2) PROTECTIONS.—In any case in which a report of an individual described under subsection (a) is rejected under paragraph (1)— (A) the enforcement-related incentive offered to the individual for making such a report shall not apply; and (B) the protection from disclosure of the report itself under section 40123 of title 49, United States Code, shall not apply.
(3) AVIATION SAFETY ACTION PROGRAM DEFINED.—In this section, the term “aviation safety action program” means a program established in accordance with Federal Aviation Administration Advisory Circular 120-66B, issued November 15, 2002 (including any similar successor advisory circular), to allow an individual to voluntarily disclose operational or maintenance issues related to aviation safety.”
* * * 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 C-1 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.”
Appendix C C-2
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
Appendix C C-3 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:
(a) Any possible noncompliance with Title 14 of the Code of Federal Regulations disclosed in the report that involves reckless conduct or intentional conduct.
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.
(b) The reported event involves criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification. Reports involving those events will be referred to the appropriate FAA office for further handling.
The FAA may use the content of such reports for any FAA action and will refer such reports to law enforcement agencies, if appropriate.
(c) The report discloses an event that involves an employee acting outside the scope of his or her employment for the eligible entity.
N ote: 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.
Appendix C C-4
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: __________________