2011-4955. Access to Aircraft Situation Display (ASDI) and National Airspace System Status Information (NASSI)

AGENCY:

Federal Aviation Administration. DOT.

ACTION:

Notice of proposed modification to the FAA/Subscriber Memorandum of Agreement (MOA) and request for comments.

SUMMARY:

The FAA has tentatively decided that it is in the best interests of the United States Government and the general public to modify Section 9 of the June 1, 2006, MOA for Industry Access to Aircraft Situation Display (ASDI) and National Airspace System Status Information (NASSI) data, between the FAA and Direct Subscribers to ASDI and NASSI data-feeds. In recognition of the fact that the Privacy Act does not protect general aviation operators from public knowledge of their flight information, the FAA proposes to require Direct Subscribers (as a condition of signing the MOA) and Indirect Subscribers (as a condition of signing agreements with Direct Subscribers) to block from ASDI and NASSI data-feeds available to the public any general aviation aircraft registration number for which a Certified Security Concern has been provided to the FAA.

DATES:

Comments on the FAA's proposed modification to the MOA must clearly identify the docket number and must be received on or before April 4, 2011.

ADDRESSES:

You may send comments identified by Docket Number FAA-2011-0183 using any of the following methods:

• Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.
• Mail: Send comments to the Docket Management Facility; US Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590.
• Fax: Fax comments to the Docket Management Facility at [phone].
• Hand Delivery: Bring comments to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Considerations: We will post all comments we receive, without change, to http://www.regulations.gov,, including any personal information you provide. Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc). You may review the Department of Transportation's complete Privacy Act Statement in the Federal Register at 65 FR 19,477-78 (Apr. 11, 2000).

Reviewing the Docket: To read background documents or comments received in this matter, go to http://www.regulations.gov at any time or go to the Docket Management Facility in Room W12-140 on the ground floor of the West Building at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Barry Davis by telephone at [phone] or by electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

In carrying out its functions over aircraft flight safety and registration, the FAA requires aircraft to display registration numbers and requires each person filing an instrument flight rules flight plan to provide the FAA with information about the flight, including the aircraft, pilot, departure and landing points, routing, time enroute, and the number of persons on board. 14 CFR 91.169. The FAA incorporates this information (filtered to exclude military and sensitive operations) into a visual system (Aircraft Situation Display) depicting each aircraft and uses it to manage air traffic flow.

The FAA has entered into an MOA with Direct Subscribers to the ASDI and NASSI data-feed. The terms of the MOA also extend to Indirect Subscribers that access the data from the Direct Subscribers and redistribute it to the public. The MOA prescribes the rights and responsibilities of the Subscribers and the FAA. The FAA differentiates the data-feed it provides directly into two classes of users. For Class One users, the FAA provides a near real time data-feed, because the data facilitates aircraft dispatching flexibility and management of user operational resources. Class One users include airlines (including some corporate flight departments and part 135 operators with direct responsibility for dispatching or tracking aircraft), professional aviation organizations with established flight-tracking capabilities, and government users. For Class Two users, the FAA provides a data-feed that has been time-delayed by at least five minutes to entities without a need for near real time positional flight tracking. Class Two users gaining direct access to recorded (historical) format include most general aviation and non-aviation-related organizations.

Under 49 U.S.C. 44103, note (Pub. L. 106-181, Apr. 5, 2000), Congress directed the FAA to conform the MOA to require that a Direct Subscriber demonstrate the capability to selectively block the display of any data related to any identified aircraft registration number and that the Direct Subscriber agree to selective blocking upon the Administrator's request. Section 7.2.3 of the MOA conforms to that statutory requirement.

Section 9 of the MOA currently provides a means to protect the “Privacy and Security Interests” of general aviation operators. The FAA currently agrees to accommodate industry initiatives to collect requests from aircraft owners or operators to exclude their aircraft from ASDI and NASSI data-feeds available to the public, either in near real time or in recorded (historical) format. Under Section 9, the FAA accommodates those initiatives for purposes of protecting the privacy and security interests of those aircraft owners. The MOA also requires Direct Subscribers and Indirect Subscribers (through the agreements signed with Direct Subscribers) to respect these privacy and security interests when developing or marketing ASDI or NASSI-based products. Under Section 15, the FAA has the right to terminate the MOA with a Subscriber that does not appropriately protect the security or privacy interests.

We have tentatively determined that it is in the best interests of the United States Government and the general public for the FAA to exclude general aviation aircraft identification numbers from ASDI and NASSI data-feeds available to the public only upon certification by the aircraft owner or operator of a Valid Security Concern (as defined below).

Although the MOA currently provides for the accommodation of privacy and security interests from general aviation aircraft owners and operators upon request and requires the Direct and Indirect Subscribers to consider and respect these interests, as explained in Section 9 of the MOA, the Privacy Act (5 U.S.C. 552a) does not protect general aviation operators from public knowledge of their flight information. A Federal district court has recently held that a list of general aviation aircraft registration numbers does not constitute a trade secret or commercial or financial information under the Freedom of Information Act, 5 U.S.C. 552. Nat'l Bus. Aviation Ass'n v. Fed. Aviation Admin., 686 F.Supp.2d 80, 86-87 (D.D.C. 2010). Releasing registration numbers associated with visual displays of flights would not reveal either the identity of the passengers on the aircraft or the purpose of the flight. Accordingly, we do not believe that it is in the public interest to withhold from public disclosure information that is not protected by the Privacy Act and other laws.

We recognize that some general aviation aircraft owners or operators may have a Valid Security Concern (as defined below) regarding their aircraft or aircraft passengers and seek to have the aircraft registration numbers of their aircraft blocked from the public ASDI and NASSI data-feeds. To have the FAA block a general aviation aircraft registration number, an aircraft owner or operator must provide the FAA, at least annually, a written certification (a “Certified Security Concern”) that: a) the facts and circumstances establish a Valid Security Concern regarding the security of the owner's or operator's aircraft or aircraft passengers; or b) the general aviation aircraft owner or operator satisfies the requirements for a bona fide business-oriented security concern under Treasury Regulation 1.132-5(m), “Employer-provided transportation for security concerns,” 26 CFR 1.132-5(m).

A Valid Security Concern is a verifiable threat to person, property or company, including a threat of death, kidnapping or serious bodily harm against an individual, a recent history of violent terrorist activity in the geographic area in which the transportation is provided, or a threat against a company. As with the Treasury Regulations, a generalized concern about safety is not enough to establish a Valid Security Concern. We note that Treasury Regulation 1.132-5(m) covers “working condition fringes” and provides for the exclusion from income of certain employer-provided transportation, including “flights on employer's aircraft for business and personal reasons.” The Internal Revenue Service (IRS) permits the exclusion when the flights meet a “bona fide business-oriented security concern” that requires an employee to travel on a company plane for business and personal trips. Under the regulation, the employer must have a specific basis for a security concern and establish that concern to the satisfaction of the IRS, through an independent security study or an overall security program. Providing ASDI and NASSI data-feed protection to those general aviation aircraft owners or operators that have bona fide business-oriented security concerns under the Treasury Regulations is clear, easy to follow, and justifiable.

Direct and Indirect Subscribers would be prohibited from distributing in a visual display, either in near real time or in recorded (historical) format, information regarding aircraft for which a Certified Security Concern has been provided to the FAA, and Direct and Indirect Subscribers would be prohibited from using such information in developing or marketing ASDI- or NASSI-based products. Under the operative statutory provision, 49 U.S.C. 44103 note, the FAA has the discretion to determine whether aircraft registration numbers should be blocked, and we do not believe that protecting aircraft identities from publicly available access is always in the best interests of the United States Government and the general public.

Accordingly, we seek comment on modifying Section 9 of the MOA as follows:

9. Security Interests

The ASDI and NASSI data includes the near real time position and other flight data associated with civil instrument flight rules (IFR) aircraft. While commercial operators conduct business according to a published listing of service and schedule, general aviation operators do not. It is possible that public knowledge of the ASDI and NASSI data of certain general aviation operators could compromise the security of individuals or property. General aviation aircraft identification numbers must be excluded from public ASDI and NASSI data-feeds in the event a general aviation aircraft owner or operator provides the FAA, at least annually, a written certification (a “Certified Security Concern”) that a) the facts and circumstances establish a Valid Security Concern regarding the security of the owner's or operator's aircraft or aircraft passengers; or b) the general aviation aircraft owner or operator satisfies the requirements for a bona fide business-oriented security concern under Treasury Regulation 1.132-5(m), “Employer-provided transportation for security concerns,” 26 CFR § 1.132-5(m). A Valid Security Concern is a verifiable threat to person, property or company, including a threat of death, kidnapping or serious bodily harm against an individual, a recent history of violent terrorist activity in the geographic area in which the transportation is provided, or a threat against a company. The FAA will no longer accommodate any ASDI- or NASSI-related security or privacy requests, except such Certified Security Concerns. All Direct Subscribers (as a condition of signing this MOA) and Indirect Subscribers (as a condition of signing agreements with Direct Subscribers) must block any general aviation aircraft registration numbers for which Certified Security Concerns have been provided to the FAA. If the FAA determines that any Direct or Indirect Subscriber develops or markets products that violate this provision, the FAA's rights under Section 15 shall apply.

Issued in Washington, DC, on March 1, 2011.

Marc L. Warren,

Deputy Chief Counsel.