Originally Posted by TheSchwartz

Has anyone heard the status of this thing?
Last we heard was an update from AFS-230 where the inspector (one who has at least some level of authorship of 66C) said it received more comments than any other draft AC in FAA history. The meeting ended abruptly when one of our union leaders said he'd be speaking to an empty room if it went forward as it was written.
I pasted in a few of the troublesome ares of the draft AC and comments I submitted to the FAA. There are more...

Some of our major problems with it:
3.r. Reckless Conduct. Exists when an individual (1) deviates (2) from established risk controls (3) in gross disregard for safety. Risk controls are established by the FAA through regulations (i.e., 14 CFR) and by company policies implemented by the entity. Thus, risk controls can be both regulatory and non-regulatory. Established risk controls put the individual on notice of both the kinds of conduct and scenarios that increase the probability of harm, as well as the procedures necessary to eliminate hazards or to mitigate their effects by reducing the severity and/or likelihood of harm associated with those hazards. Thus, where an individual knows—through established risk controls—how to eliminate or reduce a risk of harm but nonetheless acts or fails to act in a manner consistent with the established risk control, then that individual has deviated from the established risk control. “Reckless conduct” occurs when that deviation is in gross disregard for safety. Under a risk assessment matrix, “gross disregard for safety” would be indicated by an increase in likelihood and/or severity of consequences to a high level (unacceptable risk). An intentional deviation from an established risk control with the intent to reduce risk (i.e., emergency or abnormal situations) does not constitute “Reckless Conduct."
Note: In both civil and criminal liability contexts, reckless conduct involves a person acting with knowledge that there is a risk that harm would probably result from the conduct and, foreseeing the harm, nevertheless taking the risk. It differs from negligence, where negligence is the failure to recognize a risk that a reasonable person would have recognized.
My Comment: This definition is acceptable until it discusses the risk matrix (“Under a risk assessment matrix…”). From that point on, the definition becomes seriously flawed. Increased likelihood and/or severity do not necessarily equal reckless conduct or vice versa.

3.w. Unacceptable Risk. Refers to combinations of severity and likelihood that cause risk to fall into the red area of the risk matrix, thus indicating a gross disregard for safety for purposes of determining reckless conduct, as described in subparagraph 3.r.
My Comment: This definition, while technically correct at first, is awkward in the definitions. It states that unacceptable risk indicates gross disregard for safety which is completely illogical and incorrect. I would suggest replacing this term with a definition of Risk Acceptance which would contain Acceptable, Acceptable with Mitigation, and Unacceptable risk definitions consistent with AC 120-92A Appendix 3 2.a.(1), (2), and (3).

6.a.(5)a. Participants should employ the guidance on the Safety Management Systems (SMS) in the most recently effective edition of AC 120-92, Safety Management Systems for Aviation Service Providers. In order to be used in the ASAP to determine acceptance of a report, the definitions of each level of severity and likelihood should be specified in terms that are realistic for that environment, and the resulting safety risk matrix must be acceptable to all parties to the ASAP MOU.
My Comment: First, this part of the AC should elaborate more on the conduct of a risk assessment and use of a matrix. Once again, the guidance from AC 120-92A Appendix 3 2.a would fill in the blanks and maintain consistency. Second, Mr. Rob Burke stated at InfoShare that the risk assessment process was not intended to be used for report acceptance (which is 180 degrees different from what the draft AC says). The intent was to have risk assessed during report processing according to him. This should be stated clearly. Third, the AC should clearly state the intent of performing the risk assessment (ie assessing risk of the root cause of the event or the outcome of the event). Part of the intent of the risk assessment should be what is required of the ERC if the risk assessment comes out yellow or red.

8.g. Independent Investigations. The FAA may use the knowledge of the event disclosed in an ASAP report to conduct such independent investigation of an apparent violation(s) as the FAA deems appropriate.
Note: The certificate holder should not use any information obtained through the ASAP to initiate or support disciplinary action outside of the ASAP, with the exception of those reports excluded from the ASAP. Excluded ASAP reports may be due to the appearance of possible criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification by the reporting employee.
My Comment: Should this remain in the final AC, this one sentence will destroy ASAP by removing any incentive for an airman to report safety issues or for a certificate holder to encourage its airmen to do so. Additionally, the note appears to restrict the carriers from doing the same.

All of that said, ASAP is an example of the FAA & industry getting it right. It is a great program which I believe is largely responsible for the lack of accidents among US carriers since it really took hold in the early part of this century.