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###### Department of Transportation

###### Federal Aviation Administration 

          - [Docket No. FAA-2004-19400] 

# AGENCY:

Federal Aviation Administration, DOT. 

# ACTION:

Notice of proposed order designating information as protected from disclosure. 

# SUMMARY:

The FAA is proposing that information provided to the agency from voluntary compliance with safety enhancements recommended by the Commercial Aviation Safety Team (CAST) be designated by an FAA order as protected from public disclosure in accordance with the provisions of 14 CFR part 193. Under 49 U.S.C. 40123 the FAA is required to protect the information from disclosure to the public, including disclosure under the Freedom of Information Act (5 U.S.C. 552) or other laws, following issuance of such order. The designation is intended to encourage sharing of information between the FAA and operators implementing the CAST safety enhancements. 

# DATES:

Comments must be received on or before November 9, 2004. 

# ADDRESSES:

You may send comments [identified by Docket Number FAA-2004-19400] using any of the following methods: 
      -  DOT Docket Web Site:                          Go to                          http://dms.dot.gov                          and follow the instructions for sending your comments electronically.                     
      -  Government-wide Rulemaking Web Site:                          Go to                          http://www.regulations.gov                          and follow the instructions for sending your comments electronically.                     
      -  Mail:                          Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.                     
      -  Fax:                          1-202-493-2251.                     
      -  Hand Delivery:                          Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.                     

                        For more information on the rulemaking process, see the                         **SUPPLEMENTARY INFORMATION**                         section of this document.                     

*Privacy:*                         We will post all comments we receive, without change, to                         *http://dms.dot.gov*, including any personal information you provide. For more information, see the Privacy Act discussion in the                         **SUPPLEMENTARY INFORMATION**                         section of this document.                               ( print page 62504)    

*Docket:*                         To read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.                     

# FOR FURTHER INFORMATION CONTACT:

Margaret Gilligan, Deputy Associate Administrator, Regulation And Certification, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-7804. 

# SUPPLEMENTARY INFORMATION: 

## Comments Invited 

The FAA invites interested persons to participate by submitting written comments, data, or views. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. 

                    We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed order. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the                     **ADDRESSES**                     section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also review the docket using the Internet at the Web address in the                     **ADDRESSES**                     section.                 

*Privacy Act:*                     Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the                     **Federal Register**                     published on April 11, 2000 (65 FR 19477-78), or you may visit                     *http://dms.dot.gov.*

Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive. 

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you. 

## Availability of Proposed Designation 

You can get an electronic copy using the Internet by: 

                    (1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (                    *http://dms.dot.gov/​search*);                 

                    (2) Visiting the Office of Rulemaking's Web page at                     *http://www.faa.gov/​avr/​arm/​index.cfm*; or                 

                    (3) Accessing the Government Printing Office's Web page at                     *http://www.access.gpo.gov/​su_​docs/​aces/​aces140.html.*

You can also get a copy 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. Make sure to identify the docket number, or notice number of this document. 

## Background 

Under 49 U.S.C. 40123, certain voluntarily provided safety information is protected from disclosure in order to encourage persons to provide the information to the FAA. The FAA must first issue an order specifying why the agency finds that the information should be protected in accordance with that section. The FAA's rules for implementing that section are in 14 CFR part 193. If the Administrator issues an order designating information as protected under section 40123, that information will not be disclosed under the Freedom of Information Act (5 U.S.C. 552) or other laws except as provided in section 40123, part 193, and the order designating the information as protected. This proposed order is issued under 14 CFR 193.11, which sets out the notice procedure for designating information as protected. 

## Description of the Proposed Safety Information To Be Protected 

In December 1997, the National Civil Aviation Review Commission recommended that all elements of the Civil Aviation community join together to establish an integrated safety agenda that would continue to drive down the fatal accident rate for commercial aviation. To respond to this recommendation, the Aviation community created the Commercial Aviation Safety Team (CAST). CAST is a voluntary organization made up of government agencies, air operators, manufacturers and aviation labor organizations dedicated to reducing the commercial aviation accident rate by 80% by 2007. The team's work has centered on the analysis of past accidents in particular categories. Based on the analysis, CAST identifies safety enhancements which, if implemented will reduce the risk of these types of accidents happening in the future. 

The safety enhancements may call for action by government agencies manufacturers, operators, or aircrew. 

CAST has identified 47 safety enhancements in its current plan, and future safety enhancements included in later revisions to the CAST plan, which CAST members have agreed to implement. Because implementation is voluntary, and may be different at various operators or manufacturers, CAST members agree it is important to collect information to evaluate the level of implementation. This information will be invaluable to measuring CAST's effectiveness in reducing the fatal accident rate. 

## Summary of the Safety Information To Be Protected 

A. Who may participate? Air operators, crewmembers and manufacturers who are targeted to implement safety enhancements recommended by CAST. 

B. What voluntarily provided information would be protected from disclosure under this proposed designation? 

1. All information related to whether an operator, crewmember, or manufacturer has implemented a safety enhancement recommended by CAST that is reported to an FAA inspector or other FAA representative. 

2. All information related to the level of implementation, the methods used to implement and the results of implementation provided by an operator, crewmember or manufacturer to an FAA inspector or other FAA representation. 

3. All information related to whether an operator, crewmember or manufacturer has implemented a safety enhancement recommended by CAST that is reported to FAA by a CAST member organization. 

4. All information related to the level of implementation by an operator, crewmember or manufacturer reported to the FAA by a CAST member organization. 

5. Reports prepared by FAA, any CAST member organization, or any team or workgroup established by CAST that is based on information related to the implementation of safety enhancements. 

6. Any database containing information related to the implementation of safety enhancements and/or the effectiveness of these safety enhancements in eliminating or mitigating the underlying safety hazard. 

                    C. How persons can participate?                           ( print page 62505)    

An operator, crewmember or manufacturer can participate by voluntarily providing data related to implementation of safety enhancements to an FAA inspector, to another FAA representative or to CAST through a CAST member organization. 

D. Duration of this protection? 

Information related to implementation of safety enhancements recommended by CAST will be protected indefinitely. 

## Proposed Findings 

The FAA proposes to designate information received from operators and manufacturers related to implementation of CAST safety enhancements as protected under 49 U.S.C. 40123 and 14 CFR 193.7 based on the following findings: 

1. Summary of why FAA finds that the information will be provided voluntarily. The very essence of CAST is voluntary participation. Those who are members of CAST, who take part in the accident analysis, determine the feasibility of safety enhancements, and agree to implement the enhancements do so voluntarily. The key to CAST success now rests on understanding the level and effectiveness of implementation. Operators, crewmembers and manufacturers who have taken part in the program voluntarily to this point can be expected to provide information voluntarily to support achieving a shared goal of improving safety. 

2. Description of the type of information that may be voluntarily provided under the program and why FAA finds that the information is safety related. 

CAST participants will provide information as to safety enhancements implemented, the method of implementation, the process to evaluate the implementation and any other information, such as best practices related to the implementation of safety enhancements. The FAA finds this information is safety related because it will aid in measuring whether the safety goal—reducing the commercial fatal accident rates by 80% by 2007—is being achieved. 

3. Summary of why the FAA finds that the disclosure of the information would inhibit persons from voluntarily providing that type of information. 

Because the safety enhancements are not required by regulation, operators, crewmembers and manufacturers have wide discretion when they implement them. Industry is concerned that if disclosed, there is the potential for the information to be used for other than improving aviation safety, which was the primary reason for establishing CAST. Withholding such information from disclosures is consistent with FAA's safety responsibilities because without information on implementation of the safety enhancements, FAA and CAST will not be able to determine the effectiveness of safety enhancements. If FAA and CAST do not receive the information, FAA and the public will be deprived of the opportunity to determine whether the safety goal can be reached. 

4. Summary of why receiving the information aids in fulfilling FAA's safety responsibilities. 

With this information, FAA and industry will be able to determine whether the safety enhancements are effective. If the data suggests the goal to reduce the fatal accident rate will not be achieved, additional safety enhancements could be identified and implemented. 

5. Summary of why withholding the information from disclosure is consistent with FAA safety responsibilities. Summary of when withholding the information from disclosure would not be consistent with FAA safety responsibilities as described in 14 CFR 193.9. 

Withholding the information from disclosure is consistent with FAA safety responsibilities because, to reach FAA's safety goal FAA must be able to evaluate the implementation and effectiveness of safety enhancements identified through CAST. FAA will release information, as set forth in part 193, to explain the need for changes in FAA policies, procedures and regulations. FAA may release de-identified, summarized information derived from information reported about implementation of the CAST safety enhancements. When necessary to correct a condition that may compromise safety, or to encourage more complete and timely implementation of safety enhancements, FAA may release information to the members of CAST. The FAA will give information to CAST members who are government agencies only if each agency meets the requirements 14 CFR 193.7(e). FAA will give information to CAST members that are not government agencies only if each member provides adequate assurance that it will protect the information from further release and it will limit access to those with a need to know to carry out safety responsibilities. 

6. Summary of how FAA will distinguish information protected under part 193 from information the FAA receives from other sources. 

Operators, crewmembers and manufacturers will provide information related to the implementation of CAST safety enhancements directly to FAA inspectors or other FAA employees designated to receive such information. In this way, the information protected under this order will be easily identified and distinguished from other information FAA receives from other sources. 

## Proposed Designation 

Accordingly, the Federal Aviation Administration hereby proposes to designate the above-described information submitted to demonstrate implementation of CAST safety enhancements to be protected under 49 U.S.C. 40123 and 14 CFR part 193. 

Issued in Washington, DC, on October 18, 2004. 

Nicholas A. Sabatini, 

Associate Administrator for Regulation and Certification. 

[FR Doc. 04-23864 Filed 10-25-04; 8:45 am] 

BILLING CODE 4910-13-P