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[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Notices]
[Pages 12209-12211]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4955]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2011-0183]

Access to Aircraft Situation Display (ASDI) and National Airspace 
System Status Information (NASSI)

AGENCY: Federal Aviation Administration. DOT.

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

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

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

ADDRESSES: You may send comments identified by Docket Number FAA-2011-
0183 using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Send comments to the Docket Management Facility; US 
Department of Transportation, 1200 New Jersey Avenue, SE., West 
Building Ground Floor, Room W12-140, Washington, DC 20590.
     Fax: Fax comments to the Docket Management Facility at 
(202) 493-2251.
     Hand Delivery: Bring comments to the Docket Management 
Facility in Room W12-140 of the West Building Ground Floor at 1200 New 
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    Privacy Considerations: We will post all comments we receive, 
without change, to http://www.regulations.gov, including any personal 
information you provide. Using the search function of our docket Web 
site, anyone can find and read the comments received into any of our 
dockets, including the name of the individual sending the comment (or 
signing the comment for an association, business, labor union, etc). 
You may review the Department of Transportation's complete Privacy Act 
Statement in the Federal Register at 65 FR 19,477-78 (Apr. 11, 2000).

[[Page 12210]]

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

FOR FURTHER INFORMATION CONTACT: Barry Davis by telephone at (540) 422-
4650 or by electronic mail at barry.davis@faa.gov.

SUPPLEMENTARY INFORMATION: In carrying out its functions over aircraft 
flight safety and registration, the FAA requires aircraft to display 
registration numbers and requires each person filing an instrument 
flight rules flight plan to provide the FAA with information about the 
flight, including the aircraft, pilot, departure and landing points, 
routing, time enroute, and the number of persons on board. 14 CFR 
91.169. The FAA incorporates this information (filtered to exclude 
military and sensitive operations) into a visual system (Aircraft 
Situation Display) depicting each aircraft and uses it to manage air 
traffic flow.
    The FAA has entered into an MOA with Direct Subscribers to the ASDI 
and NASSI data-feed. The terms of the MOA also extend to Indirect 
Subscribers that access the data from the Direct Subscribers and 
redistribute it to the public. The MOA prescribes the rights and 
responsibilities of the Subscribers and the FAA. The FAA differentiates 
the data-feed it provides directly into two classes of users. For Class 
One users, the FAA provides a near real time data-feed, because the 
data facilitates aircraft dispatching flexibility and management of 
user operational resources. Class One users include airlines (including 
some corporate flight departments and part 135 operators with direct 
responsibility for dispatching or tracking aircraft), professional 
aviation organizations with established flight-tracking capabilities, 
and government users. For Class Two users, the FAA provides a data-feed 
that has been time-delayed by at least five minutes to entities without 
a need for near real time positional flight tracking. Class Two users 
gaining direct access to recorded (historical) format include most 
general aviation and non-aviation-related organizations.
    Under 49 U.S.C. 44103, note (Pub. L. 106-181, Apr. 5, 2000), 
Congress directed the FAA to conform the MOA to require that a Direct 
Subscriber demonstrate the capability to selectively block the display 
of any data related to any identified aircraft registration number and 
that the Direct Subscriber agree to selective blocking upon the 
Administrator's request. Section 7.2.3 of the MOA conforms to that 
statutory requirement.
    Section 9 of the MOA currently provides a means to protect the 
``Privacy and Security Interests'' of general aviation operators. The 
FAA currently agrees to accommodate industry initiatives to collect 
requests from aircraft owners or operators to exclude their aircraft 
from ASDI and NASSI data-feeds available to the public, either in near 
real time or in recorded (historical) format. Under Section 9, the FAA 
accommodates those initiatives for purposes of protecting the privacy 
and security interests of those aircraft owners. The MOA also requires 
Direct Subscribers and Indirect Subscribers (through the agreements 
signed with Direct Subscribers) to respect these privacy and security 
interests when developing or marketing ASDI or NASSI-based products. 
Under Section 15, the FAA has the right to terminate the MOA with a 
Subscriber that does not appropriately protect the security or privacy 
interests.
    We have tentatively determined that it is in the best interests of 
the United States Government and the general public for the FAA to 
exclude general aviation aircraft identification numbers from ASDI and 
NASSI data-feeds available to the public only upon certification by the 
aircraft owner or operator of a Valid Security Concern (as defined 
below).
    Although the MOA currently provides for the accommodation of 
privacy and security interests from general aviation aircraft owners 
and operators upon request and requires the Direct and Indirect 
Subscribers to consider and respect these interests, as explained in 
Section 9 of the MOA, the Privacy Act (5 U.S.C. 552a) does not protect 
general aviation operators from public knowledge of their flight 
information. A Federal district court has recently held that a list of 
general aviation aircraft registration numbers does not constitute a 
trade secret or commercial or financial information under the Freedom 
of Information Act, 5 U.S.C. 552. Nat'l Bus. Aviation Ass'n v. Fed. 
Aviation Admin., 686 F.Supp.2d 80, 86-87 (D.D.C. 2010). Releasing 
registration numbers associated with visual displays of flights would 
not reveal either the identity of the passengers on the aircraft or the 
purpose of the flight. Accordingly, we do not believe that it is in the 
public interest to withhold from public disclosure information that is 
not protected by the Privacy Act and other laws.
    We recognize that some general aviation aircraft owners or 
operators may have a Valid Security Concern (as defined below) 
regarding their aircraft or aircraft passengers and seek to have the 
aircraft registration numbers of their aircraft blocked from the public 
ASDI and NASSI data-feeds. To have the FAA block a general aviation 
aircraft registration number, an aircraft owner or operator must 
provide the FAA, at least annually, a written certification (a 
``Certified Security Concern'') that: a) the facts and circumstances 
establish a Valid Security Concern regarding the security of the 
owner's or operator's aircraft or aircraft passengers; or b) the 
general aviation aircraft owner or operator satisfies the requirements 
for a bona fide business-oriented security concern under Treasury 
Regulation 1.132-5(m), ``Employer-provided transportation for security 
concerns,'' 26 CFR 1.132-5(m).
    A Valid Security Concern is a verifiable threat to person, property 
or company, including a threat of death, kidnapping or serious bodily 
harm against an individual, a recent history of violent terrorist 
activity in the geographic area in which the transportation is 
provided, or a threat against a company. As with the Treasury 
Regulations, a generalized concern about safety is not enough to 
establish a Valid Security Concern. We note that Treasury Regulation 
1.132-5(m) covers ``working condition fringes'' and provides for the 
exclusion from income of certain employer-provided transportation, 
including ``flights on employer's aircraft for business and personal 
reasons.'' The Internal Revenue Service (IRS) permits the exclusion 
when the flights meet a ``bona fide business-oriented security 
concern'' that requires an employee to travel on a company plane for 
business and personal trips. Under the regulation, the employer must 
have a specific basis for a security concern and establish that concern 
to the satisfaction of the IRS, through an independent security study 
or an overall security program. Providing ASDI and NASSI data-feed 
protection to those general aviation aircraft owners or operators that 
have bona fide business-oriented security concerns under the Treasury 
Regulations is clear, easy to follow, and justifiable.
    Direct and Indirect Subscribers would be prohibited from 
distributing in a visual display, either in near real time or in 
recorded (historical) format, information regarding aircraft for which 
a Certified Security Concern has been

[[Page 12211]]

provided to the FAA, and Direct and Indirect Subscribers would be 
prohibited from using such information in developing or marketing ASDI- 
or NASSI-based products. Under the operative statutory provision, 49 
U.S.C. 44103 note, the FAA has the discretion to determine whether 
aircraft registration numbers should be blocked, and we do not believe 
that protecting aircraft identities from publicly available access is 
always in the best interests of the United States Government and the 
general public.
    Accordingly, we seek comment on modifying Section 9 of the MOA as 
follows:

9. Security Interests

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

    Issued in Washington, DC, on March 1, 2011.
Marc L. Warren,
Deputy Chief Counsel.
[FR Doc. 2011-4955 Filed 3-3-11; 8:45 am]
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