04-16520. Withdrawal of Advance Notice of Proposed Rulemaking; Domestic Passenger Manifest Information

AGENCY:

Office of the Secretary (OST), DOT.

ACTION:

Withdrawal of advance notice of proposed rulemaking (ANPRM)

SUMMARY:

The Department withdraws the ANPRM published in the Federal Register of March 13, 1997, concerning operational and cost issues related to U.S. air carriers collecting basic information (e.g., full name, date of birth and/or social security number, emergency contact and telephone number) from passengers traveling on flights within the United States. The Department believes that the difficulties that originally motivated the information-collection requirements in the ANPRM are now being successfully dealt with by air carriers and others in the notification process. The Department is unaware of continuing notification difficulties on domestic flights.

FOR FURTHER INFORMATION CONTACT:

Dennis Marvich, Office of International Transportation and Trade, DOT, [phone]; or, for legal questions, Joanne Petrie, Office of General Counsel, DOT, [phone].

SUPPLEMENTARY INFORMATION:

On March 13, 1997 (62 FR 11789), the Office of the Secretary (OST) published an ANPRM requesting public comment concerning operational and cost issues related to U.S. air carriers collecting basic information (e.g., full name, date of birth and/or social security number, emergency contact and telephone number) from passengers traveling on flights within the United States.

Background

This Advance Notice of Proposed Rulemaking (ANPRM) was issued on March 13, 1997, in order to collect information to determine what, if any, regulatory actions might be required by the Department to ensure the quick and proper notification of the families of victims of aviation disasters. The request for comments was prompted, in part, by a recommendation of the White House Commission on Security and Safety and, in large measure, by the need at that time to remedy past difficulties in this area, the most prominent of which up to then had been the difficulties in the aftermath of aviation disasters to immediately know who was on the flight and respond to the inquiries of families of victims that telephone airlines to seek information on whether or not a family member was on the flight.

In the ANPRM, the Department said that having an accurate list of the passengers that are on the flight—even without collecting data on emergency contacts—could allow air carriers to respond accurately and compassionately to such inquiries. The Department also noted that a broad examination of providing better treatment of families in the aftermath of an aviation disaster was the subject of a task force required by the Aviation Disaster Family Assistance Act of 1996 and that enhanced notification to families of victims is one aspect of that overall objective.^[1] Toward that end, the Department stated that another reason for requesting the information sought in the ANPRM was to assist the task force in making its required recommendations. At the same time, the Department recognized that developing better procedures for accessing the information that air carriers and travel agents already routinely collect on passengers could be a substitute for developing new, expensive and overlapping information-collection systems that would rarely be used. Accordingly, it noted the need for information about the measurable benefits in notification time and accuracy to be gained by requiring substantial increased investments by airlines in obtaining data on those traveling by air and on their emergency contacts.

Discussion of Comments

Sixty comments were received in response to the ANPRM. Commenters included the Air Transport Association of America (ATA); Trans World Airlines; Hawaiian Airlines; Southwest Airlines; the State of Hawaii; the Regional Airline Association (RAA); ERA Aviation; the National Air Carrier Association (NACA); Sun Country Airlines (2 comments); North American Airlines (3 comments); Harrah's Atlantic City; the National Air Transportation Association (NATA); Aspen Aviation; Aviation Charter Services; Boise Air Service; Byerly Aviation; Charter Services; Des Moines Flying Service; Direct Flight; Eagle Aviation; Elliot Aviation (2 comments); Executive Air Fleet; Executive Flight; Flight Services Group; Hampton Airways; Hill Aircraft and Leasing (2 comments); JA Air Center; Lake Mead Air; Marc Fruchter Aviation; New World Jet Corporation; Phoenix Air; Raytheon Aircraft Services; Sky Trek; Southwest Safaris; Spirit Aviation; Waukesha Flying Services; Wisconsin Aviation; Jennifer Wuertz, Chief Pilot of Mac Air; Alaska Air Carriers Association; the Air Line Pilots Association (ALPA); the Association of Flight Attendants (AFA); the American Society of Travel Agents (ASTA); Worldspan, L.P.; the American Automobile Association (AAA); the American Association for Families of KAL 007 Victims, joined by individual families of the TWA 800 and Valujet tragedies; Mr. Richard Sobel; Mr. Steven Berry; Mr. John Gilmore; Mr. Samuel Wieler; Dr. Michael Walsh; the Social Security Administration of the U.S. Department of Health and Human Services; ARMA International; the Electronic Privacy Information Center (EPIC); the American Civil Liberties Union; and Mr. Robert Ellis Smith, publisher of the Privacy Journal.

The Air Transport Association of America (ATA) filed comments on behalf of its members (Alaska Airlines, Aloha Airlines, America West Airlines, American Airlines, American Trans Air, Continental Airlines, Delta Air Lines, DHL Airways, Emery Worldwide Airlines, Evergreen International Airlines, Federal Express, Hawaiian Airlines, KIWI International Air Lines, Midwest Express, Northwest Airlines, Polar Air Cargo, Reeve Aleutian Airways, Southwest Airlines, Trans World Airlines, United Airlines, United Parcel Service, and US Airways). Trans World Airlines, Hawaiian Airlines, and Southwest Airlines also filed individual comments. ATA stated that its members had been working to improve the dissemination of passenger manifest information in the aftermath of aviation disasters with the goal of doing everything possible to speed notifications, and would re-examine their notification procedures. ATA stated that the information-collection requirements in the APRM, if adopted, would erode customer service with adverse effects being felt most directly in reservations, ticketing, and airport check-in. ATA stated that the greatest detriment would be substantially diminished productivity in the domestic airline system, especially aircraft utilization rates. ATA stated that customers would be forced to part with sensitive personal information. ATA stated that the estimated time to collect information in the ANPRM should be increased by 3 to 4 times based on the results of an ATA-member airline survey. ATA stated that the estimated time to collect information in the ANPRM was too low also because airlines book at least twice as many reservations as they board. ATA said that the most sensible way to fulfill the desire to better assist the families of aviation accident victims was to concentrate efforts on refining carrier procedures and ensuring that public messages following an aviation disaster emphasized that only those persons who have reason to believe they had a loved one on the aircraft should call the airline.

Trans World Airlines stated that it would incur significant start-up training costs and capital costs to meet the information-collection requirements in the APRM.^[2] TWA stated that while these costs are hard to define, they had been estimated to be $14.8 million. TWA stated further that since it accounted for 5.1 percent of domestic aviation market revenue passenger miles, the total expense for the aviation industry for start-up training costs and capital costs could be over $300 million. TWA noted that these figures were many times more than the total estimated costs in the ANPRM for U.S. air carriers.

Hawaiian Airlines said that because the tourist trade of the State of Hawaii is so dependent on interline-air-travel, and residents of Hawaii use air transportation much as other states depend on cars, trucks, and buses, a passenger manifest information requirement had the potential to result in significant disruptions to passengers and therefore the commerce and economy of the State of Hawaii, as well as Hawaiian Airlines. Southwest Airlines stated that the harmful effects of the information-collection requirements contemplated in the ANPRM would fall most heavily on the patrons of low-cost, high-productivity airlines such as Southwest. Southwest stated that a relatively high proportion of its passengers arrive at the airport without reservations, purchase their tickets shortly before flight, and depend upon Southwest's frequent departures. Southwest stated that the information-collection requirements in the ANPRM would add passenger-processing time at the airport that would spill over to the boarding process at the gate and the turnaround time of Southwest's aircraft. Southwest stated that it had studied the impact of changes in turnaround time on aircraft utilization and found that even a 5-minute delay in Southwest's average aircraft turnaround time would force the elimination of approximately 125 daily flight segments. Southwest also stated that the information-collection requirements in the ANPRM, because they would require passengers to transmit personal and sensitive information over the Internet and Southwest to store this information, would likely jeopardize Southwest's cost-efficient electronic ticketing and Internet booking programs.

The State of Hawaii stated that it occupies one of the most geographically isolated land masses in the world and is uniquely dependent on air transportation to permit residents and tourists to fly from one island to another, and to link the islands comprising the State of Hawaii to the rest of the Nation. The State of Hawaii joined in the comments filed by Hawaiian Airlines. The State of Hawaii stated that the burdens imposed by the information-collection requirements in the ANPRM would translate into increased costs and fares and noted that Hawaii's local air carriers, Hawaiian and Aloha, both rely extensively on interline passengers. The State of Hawaii urged DOT to consider other, less intrusive and more cost-effective mechanisms that would permit prompt notification to family members in the unfortunate event of an aviation disaster and not place additional burdens on interline passengers.

The Regional Airline Association (RAA), which is comprised of 75 member airlines that provide service at 733 airports in the United States (500 of which depend exclusively on regional air carriers for access to the U.S. transportation system), stated that passengers fly on its member airlines to save time, and the imposition of the information-collection requirements in the ANPRM would result in passenger delays, as well as intrude into the personal privacy of air travelers. RAA said that the resources needed to maintain existing airport check-in times and collect additional passenger information could make it infeasible for its member airlines to continue to serve some communities either at all or as frequently as they now do. RAA noted that in light of the Aviation Disaster Family Assistance Act of 1996 (ADFAA), all airlines are investigating improvements in their systems of verifying passenger manifests and have enhanced their systems for accommodating telephone calls after an aviation accident. RAA stated that it believed that actions taken in response to the ADFAA would significantly improve the process of family notification. RAA stated, however, that it is very difficult to produce an accurate manifest quickly in the aftermath of an aviation disaster and the absolute accuracy of the manifest must be insured before it is released. ERA Aviation, a small regional carrier located in Anchorage, Alaska, said it did not have the database resources needed to maintain additional passenger manifest information, and did not believe that passengers would want airlines to keep such information in their computers. As an alternative, ERA suggested that DOT supply a standardized form and make it available throughout the airport or gate area in display stands. Passengers would complete the form on a voluntary basis, and the only obligation of the airline would be to accept the information provided by passengers, if they chose to do so. ERA suggested that DOT employ such a system for all modes of transportation that DOT oversees (rail, bus, plane, or boat).

The National Air Carrier Association (NACA), an association of member airlines specializing in passenger charter services, stated that one member airline had provided it with a list of recommended implementation methods. NACA estimated that, if followed, they would double existing one-hour domestic check-in times to two hours. NACA stated that it was concerned about numerous data collection efforts, both in effect and proposed, on the part of a variety of federal agencies, that could result in inefficient data collection and dissemination requirements. Sun Country Airlines, a charter airline, filed a comment and later testified before the Task Force on Assistance to Families of Aviation Disasters. In sum, Sun Country stated that it supported information-collection requirements, such as in the ANPRM, for those involved with air charters to deal with difficulties in contacting next-of-kin in the aftermath of an aviation disaster. Sun Country recommended removing date of birth or social security account number, however, because it felt that neither was useful to the notification process. Sun Country said that such a requirement should extend to charter operators and travel agents, because the additional information could be obtained most efficiently at the time of reservation, and charter operators and travel agents (and not the charter airline) had contact with passengers at the time of reservation. Sun Country said that collecting information at the airport would be the least efficient way to obtain it. Sun Country stated that it could not accurately gauge the costs of the information-collection requirements in the ANPRM since, as a charter airline, it did not generally make direct passenger reservations. North American Airlines (NAA), a charter airline, filed a comment and later testified before the Task Force on Assistance to Families of Aviation Disasters. NAA also filed a supplemental comment in which it addressed single entity charters. NAA stated that care must be taken to avoid making mistakes in notifying families in the aftermath of an aviation disaster and the issues involved in notifying families are more complicated than they appear. NAA said that full name, phone number (including area code), and hometown were the only elements of passenger manifest information that were needed. NAA predicted that passengers would object to providing social security account numbers on privacy grounds, and said collecting birth dates could lead to age discrimination complaints by bumped passengers. NAA said that requiring the collection of the same information by both scheduled and charter airlines would be extremely difficult because charter airlines did not have computer reservation systems (CRSs) or frequent flyer programs where the proposed information could be stored and accessed. NAA said that the DOT analysis of the costs of the information-collection requirements in the ANPRM had ignored the greatest cost, the decrease in utilization of aircraft that would occur because collecting additional passenger manifest information would increase boarding times and this would eat into aircraft utilization. NAA stated that the best way (better even than CRS collection) to ensure the collection of vital information would be along the lines of a Pan Am 103 family suggestion: A perforated stub on the boarding card that could, as each passenger boards, be torn off and kept by the airline. NAA estimated that it would realistically take at least a minute for the passenger to fill out the stub, and extra airline manpower and time would be required to explain the process to passengers and assist them in filling out the information requested on the stub. In its comment, NAA said that it had adopted such a procedure on its regular charter flights. Later, in its testimony before the Task Force on Assistance to Families of Aviation Disasters, NAA said that based on a few months experience, the procedure was working. NAA said that one reason it worked was that NAA required passengers on its regular chartered flight to check-in 11/2-2 hours before departure, and noted that normal scheduled flights did not have this big a window for the check-in process. NAA's supplemental comment, as mentioned above, dealt with single entity charters: A single entity charter is a charter where one entity (often a company, school, nonprofit organization, sports team, or individual) both arranges and pays for the charter. NAA said it would not be appropriate to require additional information from passengers on single entity charters since the passengers would likely resist giving information on privacy grounds and often the single chartering entity would know the passengers and already have information on hand for them.

Harrah's Atlantic City, an operator of a major hotel, casino, resort and entertainment complex in Atlantic City, New Jersey, stated that it had for the past several years conducted public charter flights between various eastern cities in the United States and Atlantic City. Harrah's said that DOT, before proceeding further, should explore working with the air carrier industry on a voluntary, consensual basis toward improved next-of-kin notification. Harrah's said that to the extent that accountability for manifest information were to rest, actually or potentially, with an entity other than the direct air carrier, confusion could result that would defeat the purpose of the information-collection requirements in the ANPRM. Thus, Harrah's urged DOT to eliminate charter operators and other indirect air carriers (e.g., bulk fare contractors) from the potential coverage of any passenger manifest information requirement ultimately adopted. Harrah's stated that the manifest information requirements in the ANPRM were unnecessarily broad and that passengers should be required only to provide their full names, all other information should be voluntary.

The National Air Transportation Association (NATA) filed comments on behalf of its members, who operate on-demand air charters with small aircraft pursuant to 14 CFR part 135 of the Federal Aviation Administration's Federal Aviation Regulations (FAR) and 14 CFR part 298 of the Department's economic regulations. The following 25 FAR Part 135 on-demand air charter carriers also filed a total of 27 individual comments: Aspen Aviation, Aviation Charter Services, Boise Air Service, Byerly Aviation, Charter Services, Des Moines Flying Service, Direct Flight, Eagle Aviation, Elliot Aviation (2 comments), Executive Air Fleet, Executive Flight, Flight Services Group, Hampton Airways, Hill Aircraft and Leasing (2 comments), JA Air Center, Lake Mead Air, Marc Fruchter Aviation, New World Jet Corporation, Phoenix Air, Raytheon Aircraft Services, Sky Trek, Southwest Safaris, Spirit Aviation, Waukesha Flying Services, and Wisconsin Aviation. In addition, Jennifer Wuertz, Chief Pilot of Mac Air, filed comments regarding FAR Part 135 on-demand air charters, as did a state air carrier association, the Alaska Air Carriers Association. All those commenting regarding FAR Part 135 on-demand air charter carriers strongly urged DOT not to impose the information-collection requirements in the ANPRM on such carriers. Those commenters stated, among other things, that FAR Part 135 on-demand air carriers have never experienced difficulties with notification of families in the aftermath of a FAR Part 135 on-demand air charter flight that ended in disaster, the characteristics of these carriers makes the likelihood of family notification difficulties small, and the financial burden that they would bear if they were subjected to the information-collection requirements in the ANPRM would be disproportionately greater than for larger carriers.

The Air Line Pilots Association (ALPA), which represents 46,000 pilots that fly for 45 airlines, supported developing an enhanced domestic passenger manifest information collection effort for reasons of airline safety and security. ALPA stated that doing so could increase the accuracy of aircraft weight and balance computations, would aid security efforts geared toward unaccompanied baggage, and could provide an additional layer of security because passengers with nefarious intentions toward airline security would be reluctant to divulge the information in the ANPRM and might not fly. Regarding technology, ALPA suggested that the use of the two-dimensional bar code be explored.

The Association of Flight Attendants (AFA), which represents 40,000 flight attendants at 26 carriers, stated that collecting additional information from passengers on domestic flights was necessary for further enhancing airline response to aviation disasters. AFA noted that operators of large aircraft are already required to collect passenger names on each flight and that adding an additional question on an emergency contact name should be done. AFA said that while doing so would add costs, it was important for the family to know the status of the passenger so that the family would be spared heightened anxiety and frustration. AFA said that no matter what the financial burden, the families of victims need to know the status of their relatives as soon as possible.

The American Society of Travel Agents (ASTA), which represents about 16,000 domestic agency locations and members in about 168 foreign countries, said that it was in favor of collecting additional passenger manifest information through a simple paper form that passengers would understand and be able to fill out at the airport. ASTA said that it would, however, take longer to provide passenger manifest information than the 40 seconds estimated in the ANPRM. ASTA stated that it was concerned that a “performance standard” approach to the collection of passenger manifest information, where every airline got to choose how it would meet the requirement, could result in varying requirements on travel agents. ASTA believed that collecting passenger manifest information though reservations with missing information provided at the airport would result in conflict, confusion, and delay at airport gate areas. ASTA suggested instead a simple cloning of the standard U.S. Customs Service form, with each passenger completing the form at the airport at the time of enplanement. ASTA said that since airlines are not required to verify the information provided to them, the forms could just be collected and put into a pile or envelope by the gate attendant (who is typically compiling other piles of ticket coupons and boarding passes), and then turned over to a central depository at the airport for use in case of an aviation disaster.

Worldspan, L.P., a computer reservations system (CRS) at the time owned principally by Delta, Northwest, and TWA, stated that it stood ready to do its part to usefully collect passenger manifest information through a CRS, but saw practical and policy limits both in doing so and assuring that passenger manifests are as complete and accurate as Congress and DOT might wish. Worldspan said that there is no guarantee that a reservation made results in a passenger boarded, and a passenger boarded may do so without making a reservation. Worldspan concluded that the CRS could not alone be depended upon and each airline would have to be ultimately responsible for satisfying manifest requirements for the passengers it actually boards. Worldspan stated that while it could program its system to require the input of additional passenger manifest information before allowing a reservation to be completed, it would have no way of knowing whether the information entered by the user was truly responsive or was just being input to override such system conventions. Worldspan said that if another means of confirming identity in addition to full name were required, date of birth would be preferable to social security account number, which, once known, generally facilitates access to other sources of private information about individuals. Worldspan said that no CRS can make its passengers records totally secure from unauthorized use. Worldspan said that it would be better to require two emergency contact telephone numbers without an emergency contact name instead of one emergency contact name and number. Worldspan said that in cases where an emergency contact did not have a telephone number, an emergency contact address should be accepted.

The American Automobile Association (AAA) stated that it has nearly 40 million members, many of whom are frequent travelers, and operates almost one thousand travel agencies, which serve both the general public and AAA members. AAA stated that an informal survey of some of its travel agency managers showed that time spent making bookings could increase by at least 20 percent if information-collection requirements along the lines of the ANPRM were implemented. AAA stated that these travel agency managers also thought that collecting social security account numbers would raise serious privacy concerns, and collecting date of birth and emergency contact information would be problematic. AAA stated, furthermore, that it was concerned with the accuracy of information provided by passengers who may be reluctant to provide it due to privacy concerns. AAA said that since the accuracy of the information would not be checked, false information could be acted on in the aftermath of an aviation disaster and liability issues could arise. AAA said that collecting information at the airport could lead to long check-in lines. AAA said it agreed with the phrase in the ANPRM, “* * * it may be that developing better procedures for accessing the information that air carriers and travel agents routinely collect on passengers could be a substitute for developing new, overlapping information-collection systems that would rarely be used.” AAA urged DOT to explore all other available alternatives to help families of airline crash victims before requiring passenger manifest information for domestic flights.

The American Association for Families of KAL 007 Victims (Families Association) was joined in its comment by individual families of the TWA 800 and Valujet tragedies. The Families Association stated that accurate passenger information needs to be maintained for air crashes, because, while they occur infrequently, they are of a particularly violent nature and all aboard are often killed and human remains are often not able to be accounted for. The Families Association said that having prior knowledge of the identity of passengers is important and cost effective because it (1) allows for timely notification of next of kin, (2) provides for promptly obtaining evidence (DNA, medical records, etc.) needed to identify victims, (3) speeds the return of remains, (4) speeds the return of belongings, (5) saves the air carrier(s) money because it (they) know immediately the identity of prospective victims instead of being pressured (at substantial cost) to discover who the victims were in the aftermath of a disaster, and (6) the information would benefit the air carrier's information databases. The Families Association said that passenger manifests have been a historical tradition and necessity in the field of transportation by air (with the exception of walk-on flights) and thus that passenger information is already collected on all transportation by air (most by advance reservation) and even on over-the-counter transactions flight documents are issued in passengers' names. The Families Association said, furthermore, that Internet bookings, credit card or personal check payments provide already the passenger's name, often the address, either the home/office/contact telephone numbers, and other information deemed necessary to issue a non-cash ticket. The Families Association said that air carriers thus have most of the time, and in advance, the detailed data actually needed to confirm the actual boarding of a prospective pre-booked passenger. The Families Association stated that the DOT should promptly extend the 1996 Memorandum of Understanding (MOU) between the Department of State and U.S. air carriers on manifest information and manifest sharing on international flights to cover U.S. domestic flights. The Families Association also stated that all international air carriers that the U.S. Government allows to operate within U.S. air space (i.e., under “Open Skies” agreements, and various other alliances or code-sharing agreements) should be included under such a domestic passenger manifest MOU.

Several individuals filed comments. Mr. Richard Sobel stated that from his perspective as a political scientist and policy analyst, the information-collection requirements in the ANPRM, while perhaps well intentioned, is a badly flawed idea subject to abuses, including invasion of privacy, is not cost-effective, and should not be implemented. Mr. Sobel stated that, at most, airlines should be authorized to collect name, contact phone numbers, and identify hometowns, and that this information should be automatically purged immediately after the flight (to avoid invasion of privacy). Mr. Sobel stated that for privacy and fraud reasons, there was no justification whatsoever for asking for dates of birth or social security account numbers. Mr. Sobel outlined the restrictions in the Privacy Act of 1974 (Pub. L. 93-579), which identifies the fundamental right to personal privacy under the Constitution, that are potentially involved in the information-requirement in the ANPRM. Mr. Steven Berry stated that the costs of the information-collection requirements in the ANPRM were not fiscally defensible, the time estimates for collecting information in the ANPRM were not realistic, and the information-collection requirements in the ANPRM needed to be examined in light of the 1974 Federal Privacy Act. Mr. John Gilmore strongly objected to the information-collection requirements in the ANPRM and said that they were geared toward tracking the movements of citizens. Mr. Samuel Weiler stated that the information-collection requirements in the ANPRM raised serious constitutional and fraud concerns, and the goals could be better accomplished by travelers giving their families prior notice of travel plans. Dr. Michael Walsh viewed requiring social security account number or date of birth for boarding an airplane to be an invasion of basic privacy, and noted that because the DOT information-collection requirements would not predate January 1, 1975, they would be unlawful for DOT to deny boarding based on a refusal to disclose a social security account number under Section 7(a)(2)(B) of the Privacy Act of 1974.

The Social Security Administration (SSA) of the U.S. Department of Health and Human Services said that it did not support the collection of social security account numbers because in its experience, accurate verification of identity usually requires more than just a name and social security account number. SSA said that in its experience, one must collect for positive identification name, social security account number, and date and place of birth, as well as parents' names, including mother's maiden name. SSA went on to say that it would, however, discourage collecting these additional data elements because doing so would expose the social security account number to undesirable vulnerabilities related to criminal activity. The SSA pointed out, furthermore, that under section 7(a)(1) of the Privacy Act at 5 U.S.C. 552a, it is illegal for a Federal Agency to deny any individual any right, benefit, or privilege provided by law because that individual refuses to reveal his/her social security account number. SSA went on to state that this applies unless the disclosure is required by Federal law or the disclosure of the social security account number is made to an agency maintaining a system of records in existence and operating before January 1, 1975, or if the disclosure was required by statute or regulation adopted prior to that date.

ARMA International, an educational association of more than 10,000 professional records and information managers, strongly objected to the inclusion of social security account numbers in domestic passenger manifest information. ARMA International stated that it believe such an information collection would be a direct violation of the Privacy Act, and unnecessary for prompt passenger identification in case of a disaster. ARMA International did not object to the optional collection of other information, such as date of birth and emergency contact.

Comments from the Electronic Privacy Information Center (EPIC), American Civil Liberties Union (ACLU), and Mr. Robert Ellis Smith, publisher of the Privacy Journal, stated that many concerns regarding privacy and fraud would result from the information-collection requirements in the ANPRM. In its comment, EPIC said that the collection and use of the information in the ANPRM, including highly sensitive information such as social security account number, would represent a grave threat to personal privacy and potentially lead to widespread fraud. In its comment, the ACLU stated that: passengers have a privacy interest in, and the right to control use of, personal information about them that is gathered by air carriers, including information about the places to which they have traveled or are traveling; passengers have a privacy interest in, and the right to control the use of, other personal information about them that the ANPRM suggests the airlines should gather, such as their social security account number, date of birth, and name and phone number of their “contact” (or next of kin); the air transport system should not be turned into a citizen tracking system in which the movement of passengers can be tracked for various government or other purposes; and air traffic transit points should not be turned into government check points where government agents conduct searches of persons and property for generalized law enforcement or surveillance purposes. In his comment, Mr. Smith, of the Privacy Journal, questioned the basic information-collection approach in the ANPRM and stated that devoting the necessary time, money, and sacrifice of privacy for minimal yield is bad public policy. Instead, Mr. Smith stated what the next-of-kin of crash victims need is compassionate and responsive assistance at the time of the disaster. Mr. Smith said that DOT should devise an effective baggage-match program without the need for gathering any identifying information about a passenger.

Discussion of the Continuing Need for the Additional Information-Collection Requirements in the ANPRM and Departmental Decision to Withdraw the ANPRM

Many changes have taken place since the events that led to the Aviation Disaster Family Assistance Act (ADFAA) and, ultimately, to the request for comments in this ANPRM on improving airlines' system of notification of families of victims in the event of an airline disaster. U.S. carriers, in particular, have taken steps to ensure that passenger manifest information is available to the government shortly after the occurrence of a crash. This has been prompted, at least in part, by the requirements in the ADFAA that carriers assure that they will, among other things, (1) provide to the Director, Office of Transportation Disaster Assistance, of the National Transportation Safety Board (NTSB), and to the Red Cross (which has been designated by NTSB to assist after crashes), immediately upon request, a list of the names of the passengers aboard the aircraft, and (2) have in place a process for notifying the families of the passengers as soon as the carrier has verified that the passenger was aboard the aircraft. Each certificated carrier has filed such a plan with the Department and the NTSB, which reviewed the plans and, as described below, has worked with carriers to ensure the effectiveness of each carrier's plan.

Importantly, the incentive for carriers to provide prompt and accurate notification is not just a regulatory one. Carriers have learned valuable lessons about being proactive concerning disaster planning and assistance, and the need to follow through if a disaster occurs. In this regard, since the passage of the Family Assistance Act, many carriers have created positions within their companies for full time emergency planners/coordinators. These professionals have developed ongoing relationships with the NTSB's Office of Transportation Disaster Assistance, which, through industry meetings in which information is exchanged, as well as training sessions, has helped to spread to all carriers the lessons learned by others. This effort to improve the notification system has been aided by the fact that positive identification is now required of all passengers who board a flight, coupled with improved technology, such as the use of automated devices for the collection of boarding passes, which enhances rapid manifest reconciliation, where necessary.

As a result of all of these factors, in more recent cases involving aviation disasters, airlines have provided passenger manifest information to the NTSB within hours of a disaster and have been able to notify family members within a short time following a disaster. In our view, therefore, domestic carriers have developed a system that is working, and we do not believe that intervening at this time to require carriers to focus on a different, government-imposed system will be productive and enhance the successful information-gathering and dissemination programs carriers have worked so long and hard to put in place.

We will accordingly terminate this rulemaking. In doing so, however, we wish to point out that our own Office of Aviation Enforcement and Proceedings, which is responsible for ensuring that airlines comply with the Aviation Disaster Family Assistance Act, works closely with the NTSB on family assistance matters. The Department will through that office continue to monitor carrier conduct in providing timely and accurate passenger manifests in connection with domestic air transportation and we will not hesitate to act immediately should there appear to be a need for an industry-wide solution to any problem that occurs.

Department Decision

For the reasons explained above, the Department concludes that the information-collection requirements in the ANPRM are no longer necessary. Therefore, this rulemaking proceeding is terminated and the ANPRM is withdrawn.

Issued in Washington, DC, on June 26, 2004.

Norman Y. Mineta,

Secretary of Transportation.

Footnotes

1.  The task force required by the Aviation Disaster Family Assistance Act of 1996 was established as the Task Force on Assistance to Families of Aviation Disasters.

2.  Although TWA was a major airline at the time it filed its comments, American Airlines subsequently purchased TWA and its operations were merged with those of American.