[Federal Register Volume 64, Number 142 (Monday, July 26, 1999)]
[Proposed Rules]
[Pages 40472-40482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18818]
[[Page 40471]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 193
Protection of Voluntarily Submitted Information; Proposed Rule
Federal Register / Vol. 64, No. 142 / Monday, July 26, 1999 /
Proposed Rules
[[Page 40472]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 193
[Docket No. FAA-1999-6001; Notice No. 99-14]
RIN 2120-AG36
Protection of Voluntarily Submitted Information
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: The FAA proposes to add a new part to provide that certain
information submitted to the FAA on a voluntary basis would not be
disclosed. This proposal would implement a new statutory provision. It
is intended to encourage people to provide information that will assist
the FAA in carrying out its safety and security duties.
DATES: Comments must be received on or before September 24, 1999.
ADDRESSES: Comments on this proposed rulemaking should be mailed or
delivered, in duplicate, to: U.S. Department of Transportation Dockets,
Docket No. FAA-1999-6001, 400 Seventh Street, SW, Room Plaza 401,
Washington, DC 20590. Comments may also be sent electronically to the
following Internet address: [email protected] Comments may be filed
and/or examined in Room Plaza 401 between 10 a.m. and 5 p.m. weekdays
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Marisa Mullen, Office of Rulemaking,
ARM-205, or Mardi Thompson, Office of Assistant Chief Counsel, AGC-200,
Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591, telephone (202) 267-7653 or (202) 267-3073,
respectively.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Comments relating to the environmental, energy,
federalism, or economic impact that might result from adopting the
proposals in this notice are also invited. Substantive comments should
be accompanied by cost estimates. Comments must identify the regulatory
docket or notice number and be submitted in triplicate to the Rules
Docket address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel on this rulemaking, will
be filed in the docket. The docket is available for public inspection
before and after the comment closing date.
The Administrator will consider all comments received on or before
the closing date before taking action on this proposed rulemaking.
Late-filed comments will be considered to the extent practicable. The
proposals contained in this notice may be changed in light of the
comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must include a pre-addressed,
stamped postcard with those comments on which the following statement
is made: ``Comments to Docket No. FAA-1999-6001.'' The postcard will be
date stamped and mailed to the commenter.
Availability of NPRM
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the FedWorld electronic bulletin board service (telephone: (703)
321-3339) or the Government Printing Office's (GPO) electronic bulletin
board service (telephone: (202) 512-1661).
Internet users may reach the FAA's web page at http://www.faa.gov/
avr/arm/nprm/nprm.htm or the GPO's web page at http://
www.access.gpo.gov/nara for access to recently published rulemaking
documents.
Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling
(202) 267-9680. Communications must identify the notice number or
docket number of this NPRM.
Persons interested in being placed on the mailing list for future
rulemaking documents should request from the above office a copy of
Advisory Circular No.11-2A, Notice of Proposed Rulemaking Distribution
System, which describes the application procedure.
Background
Statement of the Problem
The FAA is committed to make continuing improvements in aviation
safety and security. To do so, the FAA must have an increasing amount
of information regarding current safety and security systems and how
they are functioning today. The FAA is developing data sharing programs
in which persons in the aviation community, such as air carriers, would
share with the FAA information related to safety and security. In one
such program, Flight Operations Quality Assurance (FOQA), in-flight
data is collected during normal flights and aggregate trend analyses
from that data are made available for FAA inspection. In Aviation
Safety Action Programs (ASAP), the FAA and entities of the air
transportation industry have entered into programs intended to generate
safety information that may not otherwise be obtainable. ASAP is
described in Advisory Circular 120-66.
An impediment to further development of these programs is the
reluctance of some persons to share information that, when in the hands
of a government agency, may be required to be released to the public
through the Freedom of Information Act (FOIA) (5 U.S.C. Sec. 552) or
other means.
The Federal Aviation Reauthorization Act of 1996 (Pub. L. 104-264)
provides relief from these concerns by adding new Sec. 40123 to Title
49, United States Code. The new section provides:
(a) In General.--Notwithstanding any other provision of law,
neither the Administrator of the Federal Aviation Administration,
nor any agency receiving information from the Administrator, shall
disclose voluntarily-provided safety or security related information
if the Administrator finds that--
(1) The disclosure of the information would inhibit the
voluntary provision of that type of information and that the receipt
of that type of information aids in fulfilling the Administrator's
safety and security responsibilities; and
(2) Withholding such information from disclosure would be
consistent with the Administrator's safety and security
responsibilities.
(b) Regulations.--The Administrator shall issue regulations to
carry out this section.
In the legislative history, Congress cited the data-sharing
programs being developed that could help improve safety by allowing the
FAA to spot trends before they result in accidents. It noted the
concern in the aviation community about the confidentiality of the
data. ``Much of the information could be incomplete, unreliable, and
quite sensitive. There will be a reluctance to share such information
if it will be publicly released because it could easily be
misinterpreted, misunderstood, or misapplied.'' H.R. Rep. No. 104-714,
104th Cong., 2d Sess. 41. Congress noted that protecting this
information from public disclosure will not reduce the information
available to the public, because the information is not provided to the
public now. It further noted that the information
[[Page 40473]]
``should be useful in the development of safety policies and
regulations.'' H.R. Rep. No. 104-714, 104th Cong., 2d Sess. 42.
In addition, the White House Commission on Aviation Safety and
Security issued a recommendation on this subject. In Recommendation 1.8
the Commission noted that the most effective way to identify problems
is for the people who operate the system to self-disclose the
information, but that people will not provide information to the FAA
unless it can be protected. It recommended that the FAA expeditiously
complete rulemaking to implement the legislation for protecting
voluntarily provided information.
This notice contains proposals to carry out Sec. 40123. The FAA
anticipates that information received in programs under this part will
be used to carry out the FAA's safety and security responsibilities in
a number of ways, including identifying potentially unsafe conditions
and appropriate corrective action, identifying a need for and the
contents of rulemaking, identifying a need for and the contents of
policies, and identifying a need for an investigation or inspection.
General Discussion of the Proposals
The proposed rule is intended to furnish a way for people to
provide information to the FAA for safety or security purposes, yet
protect the information from disclosure to others (with exceptions
discussed below).
There is a strong public policy in favor of Federal agencies
releasing information to the public, to ensure that the public is
informed as to how the government is doing business. Section 40123,
however, reflects a recognition that there is a significant benefit to
providing exceptions to this policy in order for the FAA to receive
additional safety and security related information that it is not now
receiving.
Section 40123 requires that the FAA and other agencies not release
information that meets the standards in the statute and implementing
rules. The information that is subject to this protection is defined in
Sec. 40123 as information that is voluntarily provided and that is
safety or security related. Section 40123 requires that certain
findings be made by the Administrator before its protections apply. The
FAA proposes to add a new part 193 that would describe how the
Administrator would determine that the requirements of Sec. 40123 are
met, thereby making the information protected from disclosure.
Not all information that is voluntarily provided to the FAA meets
the standards in Sec. 40123, and, therefore, is not protected from
disclosure under Sec. 40123. The FAA often receives information from
persons who are willing to provide it without the nondisclosure
protections in Sec. 40123. For instance, persons may call an FAA field
office to report possible violations such as low flight, or may
approach inspectors who are at an airport with information on possible
violations. Such information generally does not meet the requirements
in Sec. 40123 because the disclosure of the information generally does
not inhibit the voluntary provision of that type of information.
Indeed, the person often expects disclosure of the information when the
FAA acts to address the apparent violation.
Under proposed part 193, the only information to be protected would
be information specifically designated as protected in accordance with
the procedures in Secs. 193.9 or 193.11. Other voluntarily provided
information would not be protected under this part. Part 193 would
provide for specific findings to be made by the Administrator as to the
elements in Sec. 40123. In the ordinary case, the Administrator would
publish in the Federal Register a proposed designation for specified
types of information and request comments. After review of the
comments, the FAA could publish a designation protecting the
information from disclosure. However, when there is an immediate need
for the FAA to provide protection in order to receive information, this
rule would also permit the Administrator to designate the information
as protected without notice to the public.
Section 40123 and this proposed rule represent a new effort to
encourage the aviation community to share information with the FAA. As
a developing project, it is not clear how best to structure programs to
maximize the benefits. Accordingly, this proposal is written to provide
many options for future development and tailoring of individual
programs. In all cases except those where there is an immediate need
for the information, the FAA would publish notice of these developments
and any expansion of the non-disclosure policies in the Federal
Register and invite comment.
Section-by-Section Analysis
Section 193.1 Scope and Delegations
This section would explain that part 193 implements 49 U.S.C.
40123, protection of voluntarily submitted information.
This section also would provide for delegation of the authority
under this part. It would state that the authority of the Administrator
to issue, amend, and withdraw designations under this part may be
delegated to Associate Administrators and Assistant Administrators and
to the Chief Counsel, their deputies, and any individual formally
designated to act in their capacity. For instance, if an Associate
Administrator were on leave, the person designated as Acting Associate
Administrator would have the authority under this part. This section
would further state that the authority of the Administrator to issue
proposed designations under this part may be further delegated, which
could be below the level of Associate Administrator. This would allow
the Administrator to delegate to other officials the authority to sign
proposed and final designations to be published in the Federal Register
under Secs. 193.9 and 193.11. Because of the strong public policy in
favor of disclosure of information held by a Federal agency, authority
to grant the final designations, with their extensive non-disclosure
protections under this part, should be the decision of senior officials
in the agency.
Section 193.3 Definitions
This section would define some of the terms used in part 193.
Section 40123 refers to ``any agency receiving information from the
Administrator,'' but does not define ``agency.'' There are many
definitions of that term in the United States Code. It appears that in
this context, the most appropriate definition is essentially the one in
the Administrative Procedures Act, 5 U.S.C. Sec. 551(1). The FAA
proposes to use a simplified version of that definition and to define
``agency'' as each authority of the Federal Government of the United
States, whether or not it is within or subject to review by another
agency, but does not include--(A) the Congress; (B) the courts of the
United States; (C) the governments of the territories or possessions of
the United States; (D) the government of the District of Columbia; or
(E) court martial and military commissions. This definition would
permit the FAA to give information to the National Transportation
Safety Board (NTSB), and to other agencies such as the FBI, in the
interest of safety or security. See the discussion of Sec. 193.5(d).
As explained below, the proposed rule would provide for some
limited disclosure of ``de-identified'' information, which would be
defined to mean that the identity of the source of the information and
the names of persons are removed from the information. Under Part 1,
``person'' is broadly defined to include not only
[[Page 40474]]
individuals, but also such entities as companies and firms. Thus,
information from an air carrier that was ``de-identified'' would not
include the name of the air carrier or the names of any crewmembers,
maintenance personnel, repair stations, or other persons that may have
been in the original information.
Section 40123 provides that ``notwithstanding any other provision
of law,'' the FAA and other agencies shall not ``disclose'' information
under specified circumstances. By referring to ``any other provision of
law,'' it appears that ``disclose'' was meant to be read broadly to
cover all circumstances under which the FAA and other agencies might
otherwise be required or permitted to disclose information.
``Disclose'' would be defined broadly under this proposal to mean the
release of information or a portion of information to other than
another agency. Release to another agency, such as the NTSB, would not
be considered disclosure under this rule, because Sec. 40123 states
that other agencies are under the same requirements as the FAA not to
disclose the information.
The most common definition of disclosing agency information
generally arises in connection with release under the FOIA.
``Disclose'' in this regulation would also include release in
rulemaking proceedings, in a press release, or to a party in a legal
action. Note that in some legal actions, such as some enforcement
actions or criminal prosecutions, the rule would permit disclosure of
the information. See the discussions of proposed Secs. 193.5(f) and
193.7(a).
``Information'' would mean data, reports, source, and other
information. It is intended to be inclusive. The word ``information''
would be used to describe all or a part of a submission of information.
``Summarized'' information would mean that individual incidents are
not specifically described, but are presented in statistical or other
more general form. Summarized information might be used in rulemaking,
for instance, to explain the need for the rule.
Section 40123 protections apply only to information submitted
voluntarily. ``Voluntary'' would be defined to mean that the
information was submitted without mandate or compulsion, and not as a
condition of doing business with the government. It would not include
information submitted as part of a means of complying with statutory,
regulatory, or contractual requirements. Under this proposed
definition, information that is required to be submitted under a
regulation would not be considered voluntarily provided. If a
regulation gives several options for compliance, information provided
as part of complying with any option chosen would not be voluntarily
provided.
The definition of ``voluntary'' also provides that a program under
this part may be published in the Code of Federal Regulations (CFR) and
the information submitted under it will considered ``voluntarily
provided.'' The FAA anticipates that some programs adopted under
Sec. 193.9 may be published in title 14 of the Code of Federal
Regulations. Other programs may be adopted as notices that are
published in the Federal Register but not incorporated into the CFR.
The definition is intended to make clear that a part 193 program can be
published in the CFR without destroying its voluntary nature.
This definition is based in part on the views expressed by courts
as to the nature of a ``voluntary'' submission of information in cases
under Exemption 4 to the FOIA (5 U.S.C. 552(b)(4)). Under that
exemption, certain voluntarily provided trade secrets and commercial or
financial information are exempt from disclosure under FOIA.
The FAA has various arrangements under which it receives
information from foreign authorities, generally under a bilateral
agreement. Whether such information would be considered to be
``voluntarily-provided'' would depend on all of the circumstances. For
instance, in some cases the foreign country inspects an FAA-
certificated repair station, production certificate holder, or other
FAA-regulated party to determine whether it is in compliance with
applicable rules and requirements, and forwards its findings to the
FAA. The regulated party is required to submit to such inspections, and
thus the information is not voluntarily-provided by the regulated party
any more than information obtained during an inspection by FAA
personnel would be voluntarily-provided. In other cases, the
information provided by a foreign authority might be considered
voluntarily provided.
Section 193.5 Withholding Information From Disclosure
This section would state the general provisions for withholding
information from disclosure. Section 193.5(a) would provide that,
except as provided in this part and in individual programs, the
Administrator does not disclose voluntarily provided safety or security
information that has been designated as protected under this part.
As discussed above, the protections of this part would apply only
to information covered under a designated program, because the
Administrator must make findings in accordance with Sec. 40123 before
the protections of that section are invoked.
Section 193.5(b) would set forth the basic elements for the
Administrator's designation of a program under this part covering a
type of information. It includes the elements that are in Sec. 40123.
Section 193.5(b)(1) would require a finding that the information
would be provided voluntarily. As noted above, only information that is
provided voluntarily may be protected under Sec. 40123. Some
information that is provided other than voluntarily may receive
protection under other laws, such as exemptions to the FOIA.
Section 193.5(b)(2) would require a finding that the information is
safety or security related.
Section 193.5(b)(3) would require a finding that the disclosure of
the information would inhibit the voluntary provision of that type of
information. The FAA anticipates that this normally would be based in
part on statements from the aviation community that they are unwilling
to provide the information unless the protections of Sec. 40123 are
ensured. The FAA would conduct an analysis to determine whether the
possibility of disclosing the information would sufficiently inhibit
the provision of the information to warrant granting the protections of
Sec. 40123.
In most cases the designation would apply only to information
provided after the designation is made. There may be instances,
however, when information of that type has been provided in the past,
but that future submissions may be inhibited without further
protection. This may be true, for instance, where employees have
experienced reprisals for submitting adverse information regarding
their employers. In such cases the FAA might consider designating as
protected information that it has received already.
The FAA notes that Sec. 40123 refers to whether disclosure would
``inhibit'' the voluntary provision of information. In this context,
the FAA interprets ``inhibit'' to mean to discourage or to repress or
restrain, but not to mean prevent the provision of information. The FAA
need only find that the provision of information would be discouraged,
repressed, or restrained, but not necessarily altogether prevented, to
designate it as protected under part 193. This is consistent with the
legislative history that refers to the FAA withholding voluntarily
provided information if disclosure would ``discourage'' people from
providing it.
[[Page 40475]]
H.R. Rep. No. 104-714, 104th Cong., 2d Sess. 49.
Section 193.5(b)(4) would require a finding that the receipt of
that type of information aids in fulfilling the Administrator's safety
and security responsibilities. This generally would be done by
describing how the FAA intends to use the information.
Section 193.5(b)(5) would require a finding that withholding such
information from disclosure, under the circumstances stated in the
program, would be consistent with the Administrator's safety and
security responsibilities. There may be circumstances under which
disclosure would be consistent with safety and security. These would be
described in the designation. See the discussion of Sec. 193.7(b).
Section 193.5(c) would clarify that only information submitted
under a program designated under this part would be protected from
disclosure as described in this part. The FAA may receive information
on a particular incident both under a designated program and from
another unrelated source. Information received by the Administrator
through another means is not protected as described in this part. For
instance, the FAA might receive information about an airspace deviation
both from air traffic control (ATC) and from a part 193 designated
program. The information received from ATC would not be protected under
this part while the information received under part 193 would be
protected from disclosure. Another example would be where information
provided under a part 193 program led the FAA to conduct an
investigation. If the investigation led to additional information, the
additional information would not be protected under part 193, but the
original information would continue to be protected.
Section 193.5(d) would make clear that nothing in this part
prevents the Administrator from giving information provided in a
program under this part to other agencies with safety or security
responsibilities. Section 40123 specifically makes such agencies
subject to its requirements regarding nondisclosure of information, and
thus clearly contemplates that the FAA may give information to such
agencies. For instance, at times it may promote safety to share
information with the NTSB, and it may be important for security to
share information with the FBI or other agencies with security
responsibilities. As another example, if the FAA drafts a regulation
based on voluntarily submitted information, the FAA may provide that
information to the Department of Transportation or the Office of
Management and Budget in connection with their review of draft FAA
rulemaking documents. (See also the discussion of proposed
Sec. 193.7(a)(1).) Further, if information received suggests that there
have been criminal violations, the FAA may refer the matter to the
Department of Justice or other appropriate agency. Section 40123
supersedes other laws in granting protection to information, when it
states that the information shall not be disclosed ``Notwithstanding
any other provision of law.* * *''
The Administrator would only give the information to another agency
if the other agency provides adequate assurance, in writing, that it
will protect the information from disclosure as required. The FAA
expects that ``adequate assurance'' usually will include a description
of the procedures the other agency will use to ensure that the
information is protected from disclosure. This will further promote the
purpose of Sec. 40123, which is to give people confidence that they can
provide information to the FAA without fear of inappropriate
disclosure.
Section 193.5(e) would provide that the nondisclosure protections
described in this part do not apply when the person who provided the
information agrees to its disclosure.
Section 193.5(f) would provide a specific procedure in the event
that the FAA received a subpoena for protected information. This might
happen, for instance, in litigation between an air carrier and an
individual who alleges he was harmed by the air carrier's negligence.
Proposed Sec. 193.5(f) would provide that when the FAA receives a
subpoena for information designated as protected under this part, the
FAA would contact the person who submitted the information to determine
whether the person objects to disclosure of the information or wishes
to participate in responding to the subpoena. If the person had no
objection the FAA would have the option of disclosing the information.
If the person wanted the information to continue to be protected, that
person would have the option of participating in the response to the
subpoena such as by filing an appropriate motion with the court. The
person would not be required to participate, however, and may not wish
to if that person wishes to remain anonymous.
The FAA would decide based on all the circumstances how to respond
to a subpoena. If the person did not object to releasing the
information that likely would be the response, however, there may be
instances in which the person who provided particular material may not
object to its release but release may compromise other aspects of the
program, in which case the FAA may decide to continue to protect it
from release.
The FAA represents the government in administrative litigation such
as many enforcement actions. The FAA does not represent the United
States government in litigation in Federal or state court, rather the
Department of Justice (DOJ) provides representations. The FAA would
either make an appropriate response to a subpoena or request that DOJ
make an appropriate response, such as to resist disclosing the
protected information by filing a motion for a protective order or a
motion to quash the subpoena, or by releasing the requested
information. In limited circumstances, the government may be required
to disclose some protected information to a judge so that the judge can
determine whether the government is properly withholding information
under the law.
Section 193.7 Disclosure of Information
Section 40123(a)(2) requires that, for information to be protected,
the Administrator must find that withholding the information would be
consistent with safety and security. If all other requirements in
Sec. 40123 are met, it will be infrequent that the FAA will find it
advisable to disclose the information. However, there are some
circumstances under which it would be consistent with safety or
security to disclose at least portions of an information submission,
which circumstances would be stated in the proposed regulation and in
the individual program. Where disclosure would be necessary, attempts
would be made to limit the disclosure to the extent practicable, such
as releasing only de-identified and summarized information.
Some reasons for disclosing information apply to all FAA programs
and activities and are set forth in proposed Sec. 193.7(a). They
involve developing new policies and regulations (Sec. 193.7(a)(1)),
evaluating or correcting current deficiencies (Sec. 193.7(a)(2)),
conducting criminal investigations or prosecutions (Sec. 193.7(a)(3)),
and complying with 49 U.S.C. 44905, regarding information about threats
to civil aviation (Sec. 193.7(a)(4)).
Proposed Sec. 193.7(a)(1) would provide for the disclosure of
limited information to explain the need for changes in policies and
regulations. As is explained in the legislative history for Sec. 40123,
the information collected in these voluntary
[[Page 40476]]
programs ``could help to improve air safety by helping safety officials
identify trends before they cause accidents.'' H.R. Rep. No. 104-714,
104th Cong., 2d Sess. 41. ``The data and information that would be
available to the FAA as a result of this provision * * * should be very
useful in the formulation of the FAA's safety policy and regulations.''
Id. at 42.
Generally, during rulemaking the agency is required to make data
available that it relied on in developing the proposed rule and is
required to give the public an opportunity to comment on the proposal.
Providing the data gives the public a chance to look at how the agency
analyzed and interpreted the data and provides an opportunity to
comment on the conclusions reached. See 5 U.S.C. 553. Such informed
comment assists the agency in developing rules that best promote safety
and security. Commenters are able to better understand the reasons for
the proposed rule, offer alternate interpretations of the underlying
data, and offer solutions that they feel would better address the
safety or security problem.
Section 40123, however, specifically provides that information
voluntarily provided under that section shall not be disclosed
``notwithstanding any other provision of law * * *.'' Another provision
of law includes the provisions of 5 U.S.C. Sec. 553 that otherwise
would call for full disclosure of data supporting a proposed
rulemaking. It would not be consistent with the intent of Sec. 40123
for the FAA to make available to the public all of the raw data on
which it relied, if that data was submitted voluntarily in a program
under this proposed part. It also would not be consistent with safety
and security for the FAA to completely forego the benefits of informed
comment on a proposed rule that comes with releasing the data
supporting the proposed rule.
The FAA proposes, therefore, that if it enters into rulemaking or
policy making based on data submitted voluntarily under this part, it
would not release all of the data. Rather, it would release only data
that is de-identified and that is summarized. In this way, the source
of the data would not be revealed, but enough information would be made
available to explain to the public how the FAA made its decisions on
the proposed changes. This proposed approach attempts to balance the
public's interest in understanding the basis for agency rulemaking and
policy making, and the need to encourage the submission of voluntarily
provided safety and security information.
In providing de-identified, summarized information, the FAA would
provide in the rulemaking sufficient information to permit meaningful
comment. Data could be summarized in a number of ways, depending on the
rulemaking. For instance, charts might show how often a specific
maintenance problem was discovered in different air carriers, without
revealing the names of the air carriers. This would show how the
maintenance problem was distributed across the industry, leading the
FAA to propose a general rulemaking instead of a correction for one air
carrier. This approach is similar to that currently used with
information that is of a very personal or private nature. Rulemaking
based on a review of medical records, for instance, may provide
summarized findings without revealing individuals' names.
Proposed Sec. 193.7(a)(2) would provide for disclosure of
information received in a program under this part to evaluate or
correct a condition that may compromise safety or security. There are a
number of instances in which this might occur. Examples include
evaluating airworthiness conditions, assuring that the holder of an FAA
certificate is qualified for that certificate, and preventing on-going
violations of the safety or security regulations.
The FAA may need to make a limited disclosure to evaluate
airworthiness conditions. If, for instance, information indicates an
unsafe condition in a type of aircraft, engine, or other product, the
FAA may consider issuing an Airworthiness Directive (under part 39) to
require that the deficiency be corrected. The FAA works with design and
production approval holders, such as holders of type certificates or
production certificates under part 21, to identify the need for action
to correct airworthiness problems and to develop what that action
should be. The holders of design and production approvals have
expertise in their own products that the FAA does not have, and it is
important that their expertise be available to help the FAA analyze
potential airworthiness problems. Under proposed Sec. 193.7(a)(2), the
FAA could disclose voluntarily-provided information to a design or
production approval holder to assist the FAA in assessing the need for,
and the content of, required corrective action. The FAA requests
comments on whether the holder or other person receiving the
information under similar circumstances should be required to protect
the information from further disclosure.
Also under Sec. 193.7(a)(2), the FAA would disclose information to
assure that the holder of an FAA certificate continues to be qualified
to hold the certificate. The FAA issues a certificate (such as for an
air carrier, a producer of aircraft, or an airman) when the applicant
has shown that all safety and security requirements for that
certificate are met. If it later becomes evident that the certificate
holder is unable or unwilling to continue to meet the safety and
security requirements, that person is no longer qualified to hold the
certificate. It would be inconsistent with safety or security for that
person to continue to hold the certificate and exercise its privileges.
Section 193.7(a)(2) would be used when the FAA receives information
in a program under part 193 that a certificate holder may not be
qualified for the certificate. The FAA would first investigate the
matter. Generally that investigation would include approaching the
certificate holder to attempt to resolve the matter. If the lack of
qualifications was confirmed, or if there was a reasonable question as
to whether the certificate holder was qualified, and no corrective
action was taken, the FAA might have to resort to remedial action. Such
remedial action may include an order of compliance or a cease and
desist order (Sec. 13.20), requiring changes to the certificate
holder's procedures, or remedial enforcement action. The latter may
include suspending the certificate until the holder shows that it is
qualified or revoking the certificate. In taking remedial action the
FAA may have to disclose some information that was submitted in a part
193 program. In remedial enforcement action, for instance, the
certificate holder would have the right to appeal the suspension or
revocation to the NTSB. The appeal process, except in very limited
circumstances, is a public process, and evidence used in the case is
available for inspection and copying by the public. Depending on the
case, the voluntarily-provided information that gave rise to the
investigation may or may not be used by the FAA to show that the
enforcement action was warranted, and may or may not be disclosed in
the course of the proceeding. This is consistent with the legislative
history for Sec. 40123, which provides: ``Examples of information the
withholding of which would be inconsistent with the FAA's safety and
security responsibilities (and thus still could be disclosed) are
information required in an enforcement action to prosecute safety or
security violations.
[[Page 40477]]
* * *'' H.R. Rep. No 104-714, 104th Cong., 2d Sess. 49.
Section 193.7(a)(2) also would provide for disclosure to prevent
continuation of an on-going violation of the Federal Aviation
Regulations (14 CFR Parts 1 through 199), the Hazardous Materials
Regulations as they relate to air transportation (49 CFR Part 171 et
seq.), and the relevant statutes. This would occur when the information
reveals that a violation was continuing to occur and thus remedial
enforcement action was necessary to correct the violation.
Section 193.7(a)(3) would provide for disclosure of information to
conduct a criminal investigation or prosecution. While the FAA does not
prosecute criminal actions, in those rare circumstances in which it is
appropriate the agency refers such matters to the Department of Justice
or other appropriate agency. For instance, in recent years there have
been some criminal prosecutions involving counterfeit aircraft parts.
Such parts can present a danger to the traveling public, and it is
important that those responsible for such crimes be brought to justice.
The FAA anticipates that, in those few instances in which part 193
information is provided to a law enforcement agency, it would be used
mostly to develop leads and otherwise assist in the investigation. The
part 193 information might not be used as evidence in the prosecution
and therefor might not be disclosed. However, it might be necessary to
disclose the information during the prosecution.
Finally, Sec. 193.7(a)(4) would provide for disclosure of
information to comply with 49 U.S.C. 44905 regarding information about
threats to civil aviation. That section requires that public notice be
made in specified circumstances about threats to civil aviation,
generally involving possible terrorist threats. The legislative history
makes clear that such information should be disclosed even if
voluntarily provided under Sec. 40123. H.R. Rep. No. 104-714, 104th
Cong., 2d Sess. 49.
Section 193.7(b) would provide for other circumstances in which
withholding information provided under this part would not be
consistent with the Administrator's safety and security
responsibilities. These circumstances may be different depending on the
program. It is proposed that those circumstances be described in the
designation for that program. The FAA cannot predict how information
programs may develop in the future. As the FAA develops uses for the
information that may require some disclosure, these uses would be
proposed in individual programs. Possible examples include disclosure
to foreign aviation authorities, disclosure after a period of time in
which the information would no longer be protected, and disclosure in
punitive enforcement actions.
As to enforcement actions, note that this proposed rule speaks only
to when information may be disclosed in connection with an enforcement
action. It does not describe what enforcement policy may be applied for
each designated program. Each program would have different goals and
provisions for such policies.
Section 193.9 Designating Information as Protected Under This Part:
Notice Procedure
This section would describe the procedure normally used to
designate information as protected under this part. This procedure
would be for use where there is not an immediate need for the
information. It generally would be used for programs in which a
specific type of information is to be provided by types of persons on
an on-going basis. For instance, under FOQA, flight recorder data is
made available by air carriers on an on-going basis. ASAP programs,
which are entered into by the FAA and entities of the air
transportation industry, are intended to generate safety information
that may not otherwise be obtainable.
The scope of Sec. 193.9 programs would vary. One way would be for
FAA to create a national program that is national in scope and that is
available to all individuals or companies that meet the basic
requirements of that program. For a national program, the FAA would
designate the entire national program as protected under Sec. 40123.
Then different persons would have the option of participating in the
program without obtaining an individual designation under this part.
Examples of national programs are FOQA and ASAP. The FAA
anticipates that it will propose to designate the national FOQA and
ASAP programs as protected under Sec. 40123. The proposed designations
would include all of the items in Sec. 193.9, such as a description of
the type of information that may be voluntarily provided. If, after
public comment, the FAA decides to designate these programs for
protection under Sec. 40123, then individual air carriers would receive
the protections of Sec. 40123 without each obtaining a designation
under part 193 for their individual FOQA and ASAP programs.
Another way to have an information program designated as protected
under Sec. 40123 would be for an air carrier or other person to submit
an application for an individual program. The FAA would evaluate the
application and either publish a proposed designation based on the
application for public comment or deny the application. Any person
would be able to apply to have information designated as protected
under this part. If the applicant is an air carrier or another
certificate holder with an FAA principal inspector, the application
would be sent to the principal inspector. If the applicant has no
principal inspector, the application would be sent to the local FAA
Field Office.
The application would include the designation described in
paragraph (c) that the applicant would like to be issued. The
Administrator would evaluate the application, and may issue a proposed
designation based on the application or may deny the application.
The Administrator may decide to issue a proposed designation based
either on an application or the FAA's internal decision. The FAA would
publish a proposed designation in the Federal Register and request
comment. After comments were received, the FAA would review them and
evaluate whether the elements in Sec. 193.5 were met. The Administrator
would designate information as protected under this part only if the
elements in Sec. 193.5 were met.
If the Administrator found that the elements in Sec. 193.5 were
met, an order designating the information as protected would be
published in the Federal Register. The order would include summaries of
why the Administrator found that the elements were met. By publishing
the order in the Federal Register, all interested persons would be able
to see that they could provide information under the program and
receive the protection described in Sec. 40123 and this part.
The first five items in the order would be the elements of
Sec. 40123. Section 193.9(c)(1) would provide for a summary of why the
Administrator finds that the information will be provided voluntarily.
Paragraph (2) of that section would provide for a description of the
type of information that may be voluntarily provided under the program
and a summary of why the Administrator finds that the information is
safety or security related. Paragraph (3) would call for a summary of
why the Administrator finds that the disclosure of the information
would inhibit the voluntary provision of that type of information.
Paragraph (4) would be for a summary of why the receipt of that type of
information aids in fulfilling the Administrator's safety and security
[[Page 40478]]
responsibilities. Paragraph (5) would call for a summary of why
withholding such information from disclosure would be consistent with
the Administrator's safety and security responsibilities, including a
statement as to the circumstances under which, and a summary of why,
withholding such information from disclosure would not be consistent
with the Administrator's safety and security responsibilities, as
described in Sec. 193.7.
Proposed Sec. 193.9(c)(6) would provide for a summary of how the
Administrator will distinguish information protected under this part
from other information. This might include such items as the method for
persons to become involved in the program, how information is submitted
under that program, and how the information is segregated within the
FAA to ensure that it is handled properly. It might also include such
procedures as marking documents as protected under part 193.
The FAA anticipates that the designation published in the Federal
Register may not contain all the details, conditions, and procedures
that apply to the program. For instance, a designation for FOQA might
contain only the elements contained in Sec. 193.9(c), such as a
description of the information that may be provided under the program.
That designation may require each interested air carrier to apply for
its own FOQA approval, which would provide particular procedures for
that air carrier. The approvals for each air carrier would not need to
be published in the Federal Register as long as they are consistent
with the designation that was published.
Under Sec. 193.9(d), the FAA could amend a designation in the same
way it was first adopted.
Section 193.9(e) would provide for withdrawal of the designation if
the FAA determines that the program no longer meets the required
elements in Sec. 193.5, or if the requirements of the individual
program are not met. The withdrawal would be published in the Federal
Register and would state the effective date of the withdrawal.
Information that was received under the program while the designation
was effective would remain protected even after the program was
discontinued. No newly received information would receive the
protection of Sec. 40123 and part 193.
Section 193.11--Designating Information as Protected Under This Part:
No Notice Procedure
This proposed procedure is intended for situations in which there
was an immediate need for the FAA to receive safety or security
information. The FAA might need to obtain the information quickly in
order to evaluate the need for immediate remedial or corrective action.
The process in this section would be a way that the FAA could assure
the source that the information would be protected under this part, but
would not require publication in the Federal Register and a comment
period.
The FAA anticipates using this procedure in rare circumstances. For
instance, there may be a serious safety or security violation that an
air carrier is unwilling to address, and an employee wishes to report
it. If the information would prove to be correct, enforcement action
against the air carrier may be likely. The employee may wish for his or
her name to be protected from disclosure from the air carrier for fear
of being fired or otherwise suffering reprisals. The protection under
this part would permit the FAA to withhold the employee's name from
disclosure.
The FAA would protect information under this section only when the
Administrator has found that the elements of Sec. 193.5 were met, and
that there was an immediate need to obtain the information without
carrying out the more time-consuming procedures in Sec. 193.9. The
designation would be in writing.
This procedure generally would involve an individual who had
information regarding a specific condition that could be provided all
at once or over a short time, rather than on-going information sharing
programs. Section 193.11(c) would contain limitations on the length of
time these procedures could be used, and generally would provide that
such an information collection could be used only for 60 days. If an
enforcement or criminal investigation was underway, the information
could continue to be provided under the protection of part 193.
However, we do not rule out the possibility that there may arise a
critical safety or security need to immediately adopt a program and
begin collecting information in a program that normally would be under
Sec. 193.9. In that case, the FAA could use Sec. 193.11 to begin
obtaining the information right away, and initiate the procedure in
Sec. 193.9 to adopt a long-term program.
Section 193.11(d) would describe those circumstances under which
the information could be disclosed. This is in addition to the
circumstances listed in Sec. 193.7(a), which would apply to all
information received under this part. The special circumstances would
include use in enforcement actions. As noted above, under the rare
circumstances in which this procedure might be used, enforcement action
may be the likely result.
Section 193.11(e) would provide for amending the designation in the
same way that the designation originally was made.
Finally, proposed Sec. 193.11(f) would state how the designation
would be withdrawn. This would be by written notice to the person
providing the information.
Paperwork Reduction Act
This proposal contains the following new information collection
requirements subject to review by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).
The title, description, number of respondents, and estimate of the
annual total reporting and recordkeeping burden are shown below.
Title: Protection of Voluntarily Submitted Information.
Summary: The FAA proposes to add a new part (part 193) to provide
that certain information submitted to the FAA on a voluntary basis
would not be disclosed. This proposal would implement a new statutory
provision. The purpose of this proposed rule is to encourage the
aviation community to voluntarily share information with the FAA so
that the agency may work cooperatively with industry to identify
modifications to rules, policies, and procedures needed to improve
safety, security and efficiency of the National Airspace System.
Use of: To encourage people to voluntarily submit desired
information, Sec. 40123 was added to Title 49, United States Code, in
the Federal Aviation Reauthorization Act of 1996. Section 40123 allows
the Administrator, through FAA regulations, to protect from disclosure
voluntarily provided information relating to safety and security
issues.
The White House Commission on Aviation Safety and Security issued a
recommendation on this subject. In Recommendation 1.8, the Commission
noted that the most effective way to identify problems is for the
people who operate the system to self-disclose the information, but
that people will not provide information to the FAA unless it can be
protected. It recommended that the FAA expeditiously complete
rulemaking to implement the legislation for protecting voluntarily
provided information.
Respondents (including number of): Those individuals,
organizations, or businesses that submit information regarding safety
or security issues,
[[Page 40479]]
including aircraft operators, manufacturers, repair stations, and
airports.
Annual Burden Estimate: This proposal would impose a negligible
paperwork burden for air carriers that choose to participate in this
program. The air carrier would submit a letter notifying the
Administrator that they wish to participate in a current program. The
FAA believes this letter will cost approximately $100 to generate. The
FAA also believes that approximately 10 air carriers would prepare one
application each. Assuming that each of the 10 air carriers file one
application divided by 10 years equals approximately one (1) hour per
application times five (5) programs equals a total of 5 hours each
year. The estimated hour burden is 5 hours (one time application). The
FAA anticipates approximately five (5) programs within the next 10
years. The total cost to the industry of notifying the Administrator
concerning the air carriers' participation in these programs would be
$5,000 over 10 years.
Occasionally, an air carrier may want to propose a program to the
FAA that would require voluntarily submitted information that would
have to be protected. The FAA anticipates that it would cost
approximately $1,000 to develop such a proposal, and we anticipate that
there would only be one (1) such proposal per decade.
The agency solicits public comment regarding the number of
applications, proposals, and cost of each on the information collection
requirements to: (1) Evaluate whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (2) evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used; (3) enhance the
quality, utility, and clarity of the information to be collected; and
(4) minimize the burden of the collection of information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology.
Individuals and organizations may submit comments on the
information collection requirement by September 24, 1999, to the
address listed in the ADDRESSES section of this document.
Persons are not required to respond to a collection of information
unless it displays a currently valid OMB control number. The burden
associated with this proposal has been submitted to OMB for review. The
FAA will publish a notice in the Federal Register notifying the public
of the approval number.
Compatibility With ICAO Standards
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no conflicts in these proposed amendments and the
foreign regulations.
Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980, as amended, requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Office of Management and Budget directs agencies to assess
the effects of regulatory changes on international trade. And fourth,
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation).
In conducting these analyses, the FAA has determined that the
economic impact of this proposed rule does not meet the standards for a
``significant regulatory action'' under section 3(f) of Executive Order
12866 and under the Department of Transportation's Regulatory Policies
and Procedures for Simplification, Analysis, and Review of Regulations
(44 FR 11034, February 26, 1979). However, the FAA has determined that
this proposed regulation is significant due to the public interest in
this rulemaking and, therefore, is subject to review by the Office of
Management and Budget. Additionally, this proposed rule would not have
a significant impact on a substantial number of small entities, would
not constitute a barrier to international trade, and does not contain a
significant intergovernmental or private sector mandate.
The FAA has determined that since the proposed rule has only a
negligible economic impact, positive or negative, on the aviation
industry, a full regulatory evaluation is not necessary.
The FAA invites the public to provide comments and supporting data
on the assumptions made in the evaluation analyses below. All comments
received will be considered in the final regulatory evaluation.
The proposed action is initiated in response to requirements of the
Federal Aviation Authorization Act of 1996 which requires, in part,
that the Federal Aviation Administration issue regulations to carry out
a provision of the Act that certain information provided to the FAA on
a voluntary basis would not be disclosed. The proposal is intended to
encourage people to voluntarily provide information that will assist
the FAA in carrying out its safety and security duties.
The purpose of this rule is to encourage the aviation community to
voluntarily share information with the FAA so that the agency may work
cooperatively with industry to identify modifications to rules,
policies, and procedures needed to improve safety, security, and
efficiency of the National Airspace System (NAS). To facilitate this
process, the FAA has initiated a number of programs designed to capture
safety and security related information normally not available to the
public or to governmental agencies.
One such program envisioned under this proposal is the Flight
Operational Quality Assurance Program (FOQA), which entails the routine
extraction and analysis of digital flight data from line operations.
The program enables collection of objective information that can be
used to identify trends relating to the safety and efficiency of the
NAS. Voluntary sharing of such information with the FAA could
accelerate agency decision making in many areas of mutual interest, for
example, published airport area arrival and departure procedures, air
traffic control data, updates to certification criteria for aircraft,
agency guidance for the use and performance of key aircraft subsystems,
i.e., Traffic Alert and Collision Avoidance System (TCAS) and Global
Positioning System (GPS), or the approval under the Advanced
Qualification Program of departures from traditional pilot training
methods and media. Another benefit of data sharing programs envisioned
through the proposed rule is that it provides an objective tool by
which the FAA could improve its safety surveillance. For example,
voluntarily shared data could
[[Page 40480]]
provide the FAA and industry with an alternative means of monitoring
the continued safety of Reduced Vertical Separation Maneuvers (RVSM).
Under current FOQA guidelines, an FAA inspector may review data and
information while at the operator's facility. The inspector is not
authorized to remove either a paper or electronic copy of data provided
under the program from an operator's premises. Not having a voluntarily
provided copy of the information severely limits the ability of the FAA
to use the information in agency decision making. This circumstance is
not always in the interest of the FAA, the airline industry, or the
public as it can preclude timely realization of a safety problem or
potential efficiency benefits that might otherwise be realized from the
shared information.
Adopting this proposed rule would encourage data sharing by
ensuring that the information shared is protected from public
disclosure, even if requested under the Freedom of Information Act
(FOIA). The proposed rule would protect the confidentiality of the
individual submitting the information and, therefore, alleviate
aviation industry fears that information provided would be used by the
public, competitors, or other government agencies for purposes other
than those related to safety and security of the aviation system.
In order to participate in any FAA sponsored program where
voluntarily submitted information is protected, the air carrier will
have to submit a letter notifying the Administrator that the air
carrier wishes to participate in the program. The FAA believes that
this letter will cost approximately $100 to generate. The FAA also
believes that approximately 10 air carriers may participate. The FAA
anticipates approximately five(5) new programs will be in existence
within the next 10 years. The total cost to the industry of notifying
the Administrator concerning the air carriers participation in these
programs would be $5,000 over 10 years. Occasionally, an air carrier
may want to propose a program to the FAA that would require voluntarily
submitted information that would have to be protected. The FAA
anticipates that it would cost approximately $1,000 to develop such a
proposal, and we anticipate that there would only be one(1) such
proposal per decade. We solicit industry comments regarding the number
of applications, proposals, and cost of each.
The benefits of this proposed rule are unquantifiable, but
nevertheless are positive because the protected information can be used
proactively to correct safety concerns, thus preventing avoidable
accidents and potentially saving many lives and millions of dollars.
There are negligible application costs associated with implementing
the proposed rule. The proposal, if adopted, imposes no reporting
requirements on the aviation community and would assure aviation
interests such as air carrier operators, pilot associations, airframe
manufacturers, and trade associations that voluntarily submit
proprietary information would be protected from public disclosure. The
cost to the public of having this data or information protected from
public disclosure is considered negligible.
On the other hand, the benefit to the FAA of voluntarily submitted
sensitive, proprietary, safety, and security information protected from
public disclosure outweighs any potential costs to the public of being
denied access to this information.
The White House Commission on Aviation Safety and Security noted in
its recommendations to the FAA that the most effective way to identify
problems is for the people who operate the system to self-disclose the
information, but that people will not provide information to the FAA
unless it can be protected. The Commission recommended that the FAA
complete rulemaking to implement the legislation for protecting
voluntarily provided information.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 establishes ``as a principle
of regulatory issuance that agencies shall endeavor, consistent with
the objective of the rule and of applicable statutes, to fit regulatory
and informational requirements to the scale of the business,
organizations, and governmental jurisdictions subject to regulation.''
To achieve that principle, the Act requires agencies to solicit and
consider flexible regulatory proposals and to explain the rationale for
their actions. The Act covers a wide range of small entities, including
small business, not-for profit organizations, and small governmental
jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis (RFA) as
described in the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, Sec. 605(b) of the 1980 Act provides that the
head of the agency may so certify and an RFA is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
The FAA conducted the required review of this proposal and
determined that it would not have a significant economic impact on a
substantial number of small entities. Accordingly, pursuant to the
Regulatory Flexibility Act, 5 U.S.C. 605(b), the Federal Aviation
Administration certifies that this proposed rule will not have a
significant impact on a substantial number of small entities. However,
the FAA solicits comments from the public regarding this determination
of non-significant impact.
International Trade Impact Statement
The FAA has determined that the proposed rule would have no impact
on trade for both United States (U.S.) firms doing business in foreign
countries or on foreign firms doing business in the U.S.
Federalism Implications
The regulations proposed herein would not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Unfunded Mandates Reform Act Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
codified as 2 U.S.C. 1501-1571, requires each Federal agency, to the
extent permitted by law, to prepare a written assessment of the effects
of any Federal mandate in a proposed or final agency rule that may
result in expenditures by State, local, and tribal governments, in the
aggregate, or by the private sector of $100 million or more (adjusted
annually for inflation) in any one year.
This proposal does not meet the thresholds of the Act. Therefore,
the requirements of Title II of the Act do not apply.
Environmental Analysis
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National
[[Page 40481]]
Environmental Policy Act (NEPA) environmental assessment or
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(j), this rulemaking action qualifies for a
categorical exclusion.
Energy Impact
The energy impact of the proposed rule has been assessed in
accordance with the Energy Policy and Conservation Act (EPCA) and Pub.
L. 94-163, as amended (42 U.S.C. 6362). It has been determined that it
is not a major regulatory action under the provisions of the EPCA.
List of Subjects in 14 CFR Part 193
Air transportation, Aircraft, Aviation safety, Safety, Security.
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to add part 193 to Title 14, Code of Federal
Regulations (14 CFR part 193) as follows:
PART 193--PROTECTION OF VOLUNTARILY SUBMITTED INFORMATION
Sec.
193.1 Scope and delegations.
193.3 Definitions.
193.5 Withholding information from disclosure.
193.7 Disclosure of information.
193.9 Designating information as protected under this part: Notice
procedure.
193.11 Designating information as protected under this part: No
notice procedure.
Authority: 49 U.S.C. 106(g), 40113, 40123.
Sec. 193.1 Scope and delegations.
(a) This part implements 49 U.S.C. 40123, protection of voluntarily
submitted information.
(b) The authority of the Administrator to issue, amend, and
withdraw designations under this part may be delegated to Associate
Administrators and Assistant Administrators and to the Chief Counsel,
their Deputies, and any individual formally designated as Acting
Associate or Assistant Administrator, Acting Chief Counsel, or Acting
Deputy of such offices. The authority of the Administrator to issue
proposed designations under this part may be further delegated.
Sec. 193.3 Definitions.
Agency means each authority of the Government of the United States,
whether or not it is within or subject to review by another agency, but
does not include--
(1) The Congress;
(2) The courts of the United States;
(3) The governments of the territories or possessions of the United
States;
(4) The government of the District of Columbia;
(5) Courts martial and military commissions.
De-identified means the identity of the source of the information,
and the names of persons, are removed from the information.
Disclose means to release information to other than another agency,
such as under a request under the Freedom of Information Act (5 U.S.C.
552), in rulemaking proceedings, in a press release, or to a party to a
legal action.
Information means data, reports, source, and other information.
``Information'' may be used to describe the whole or a portion of a
submission of information.
Summarized means individual incidents are not specifically
described, but are presented in statistical or other more general form.
Voluntary means that the information was submitted without mandate
or compulsion, and not as a condition of doing business with the
government. ``Voluntarily-provided information'' does not include
information submitted as part of a means of complying with statutory,
regulatory, or contractual requirements. However, a program under this
part may be published in the Code of Federal Regulations and the
information submitted under it will considered ``voluntarily
provided.''
Sec. 193.5 Withholding information from disclosure.
(a) Except as provided in this part, the Administrator does not
disclose voluntarily provided safety or security information that has
been designated as protected under this part.
(b) The Administrator designates information as protected under
this part when the Administrator finds that--
(1) The information is provided voluntarily;
(2) The information is safety or security related;
(3) The disclosure of the information would inhibit the voluntary
provision of that type of information;
(4) The receipt of that type of information aids in fulfilling the
Administrator's safety and security responsibilities; and
(5) Withholding such information from disclosure, under the
circumstances provided in this part, would be consistent with the
Administrator's safety and security responsibilities.
(c) Only information designated as protected under this part is
protected from disclosure as described in this part. Information
obtained by the Administrator through another means is not protected as
described in this part.
(d) Nothing in this part prevents the Administrator from giving
information designated as protected under this part to other agencies
with safety or security responsibilities. Such agencies are subject to
the requirements of 49 U.S.C. 40123 regarding nondisclosure of
information. The Administrator will not give the information to another
agency unless the other agency provides the Administrator with adequate
assurance, in writing, that it will protect the information from
disclosure as required in 49 U.S.C. 40123, this part, and the terms of
the specific program.
(e) The nondisclosure protections described in this part do not
apply when the person who provided the information agrees to its
disclosure.
(f) When the Administrator receives a subpoena for information
designated as protected under this part, the Administrator contacts the
person who submitted the information to determine whether the person
objects to disclosure of the information or wishes to participate in
responding to the subpoena. Based on all the circumstances, including
the person's response, the Administrator requests the Department of
Justice to make an appropriate response to the subpoena, or the
Administrator files an appropriate response, such as filing a motion
for a protective order or a motion to quash the subpoena, or release of
the information.
Sec. 193.7 Disclosure of information.
Withholding information that is designated as protected under this
part would not be consistent with the Administrator's safety and
security responsibilities, and therefore may be disclosed, as follows:
(a) Disclosure in all programs.
(1) De-identified, summarized information provided under this part
may be disclosed to explain the need for changes in policies and
regulations.
(2) Information provided under this part may be disclosed to
correct a condition that may compromise safety or security.
(3) Information provided under this part may be disclosed to carry
out a criminal investigation or prosecution.
(4) Information provided under this part may be disclosed to comply
with 49 U.S.C. 44905, regarding information about threats to civil
aviation.
(b) Disclosure in particular programs. In individual programs, the
Administrator may find that there are additional circumstances under
which withholding information provided
[[Page 40482]]
under this part would not be consistent with the Administrator's safety
and security responsibilities. Those circumstances are described in the
designation for that program.
Sec. 193.9 Designating information as protected under this part:
Notice procedure.
This section provides the procedure for the Administrator to
designate information provided under specific programs as protected
under this part, other than when there is an immediate safety or
security need for the information. These programs generally specify a
type of information that will be provided by types of persons on an on-
going basis.
(a) Application. Any person may apply to have information
designated as protected under this part by submitting an application
addressed to the person's FAA principal inspector. If the person has no
FAA principal inspector, the application should be submitted to the
local FAA field office. The application shall include the designation
described in paragraph (c) of this section that the applicant requests
be issued. The Administrator may issue a proposed designation based on
the application or may deny the application.
(b) Proposed designation. Before making a designation under this
section, either based on an application or otherwise, the Administrator
publishes a proposed designation in the Federal Register and requests
comment.
(c) Designation. The Administrator designates information provided
under a program as protected under this part if, after review of the
comments, the Administrator finds that the elements in Sec. 193.5 are
met. An order designating the information provided under the program to
be protected under this part is published in the Federal Register. The
designation includes at least the following:
(1) A summary of why the Administrator finds that the information
will be provided voluntarily.
(2) A description of the type of information that may be
voluntarily provided under the program and a summary of why the
Administrator finds that the information is safety or security related.
(3) A summary of why the Administrator finds that the disclosure of
the information would inhibit the voluntary provision of that type of
information.
(4) A summary of why the receipt of that type of information aids
in fulfilling the Administrator's safety and security responsibilities.
(5) A summary of why withholding such information from disclosure
would be consistent with the Administrator's safety and security
responsibilities, including a statement as to the circumstances under
which, and a summary of why, withholding such information from
disclosure would not be consistent with the Administrator's safety and
security responsibilities, as described in Sec. 193.7 of this part.
(6) A summary of how the Administrator will distinguish information
protected under this part from other information.
(d) Amendment of designation. The Administrator may amend a
designation under this section in the same manner as an original
designation is made.
(e) Withdrawal of designation. The Administrator may withdraw a
designation under this section at any time the Administrator finds that
continuation of the designation does not meet the elements of
Sec. 193.5, or if the requirements of the individual program are not
met. The Administrator withdraws the designation by publishing a notice
in the Federal Register. The withdrawal is effective on the date of
publication or such later date as the notice may state. Information
provided during the time the program was designated remains protected
under this part and the program. Information provided after the
withdrawal of the designation is effective is not protected under this
part or the program.
Sec. 193.11 Designating information as protected under this part: No
notice procedure.
This section provides the procedure for the Administrator to
designate information as protected under this part when there is an
immediate safety or security need for the information. This section
generally is used for provision of specific information on a short-term
basis by a specific person.
(a) Application. A person may request that the Administrator
designate information the person is offering as protected under this
part. The person shall state at least the general nature of information
and whether the person will provide the information without the
protection of this part.
(b) Designation. An order designating information provided under
this section as protected under this part is in writing. The
Administrator designates the information as protected under this part
if the Administrator finds that--
(1) The elements of Sec. 193.5 are met, and
(2) There is an immediate safety or security need to obtain the
information without carrying out the procedures in Sec. 193.9 of this
part.
(c) Time limit. Except as provided in paragraphs (c)(1) and (c)(2)
of this section, no designation under this section shall continue in
effect for more than 60 days after the date of designation. Information
provided during the time the designation was in effect remains
protected under this part. Information provided after the designation
ceases to be in effect is not protected under this part. The
designation remains in effect for more than 60 days if--
(1) The procedures to designate such information under
Sec. 193.9(a) have been initiated, or
(2) There is an ongoing enforcement or criminal investigation, in
which case the designation may continue until the investigation is
completed.
(d) Disclosure. Unless otherwise provided in the designation,
withholding information provided under this section from disclosure in
the conduct of enforcement actions would not be consistent with the
Administrator's safety and security responsibilities and, therefore,
the information may be disclosed.
(e) Amendment of designation. The Administrator may amend a
designation under this section in the same manner as an original
designation is made.
(f) Withdrawal of designation. The Administrator may withdraw a
designation under this section at any time the Administrator finds that
continuation does not meet the elements of Sec. 193.5, or if the
requirements of the individual program are not met. The Administrator
withdraws the designation by notifying the person in writing that the
designation is withdrawn. The withdrawal is effective on the date of
receipt of the notice or such later date as the notice may state.
Information provided during the time the designation was in effect
remains protected under this part. Information provided after the
withdrawal is effective is not protected under this part.
Issued in Washington, DC on July 16, 1999.
Ida M. Klepper,
Acting Director, Office of Rulemaking.
[FR Doc. 99-18818 Filed 7-23-99; 8:45 am]
BILLING CODE 4910-13-P
