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[Federal Register Volume 81, Number 181 (Monday, September 19, 2016)]
[Proposed Rules]
[Pages 64085-64088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21966]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 193

[Docket No. FAA-2006-24855]

Voluntary Disclosure Reporting Program

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed order designating information as protected 
from disclosure.

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SUMMARY: This notice describes a proposed order through which the 
Federal Aviation Administration plans to designate a certain category 
of information as protected from public disclosure pursuant to a 
Voluntary Disclosure Reporting Program. The Federal Aviation 
Administration is required to protect the information from disclosure 
to the public, including disclosure required by statute, such as the 
Freedom of Information Act, following issuance of an order designating 
the information as protected. The instant designation is intended to 
encourage participation in the Voluntary Disclosure Reporting Program.

DATES: Comments must be received on or before October 19, 2016.

ADDRESSES: Send comments identified by Docket Number FAA-2006-24855 
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations 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.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

[[Page 64086]]

    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations 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.

FOR FURTHER INFORMATION CONTACT: For questions concerning this action, 
contact Scott Crosier, ASI/Manager, Voluntary Disclosure Reporting 
Program (VDRP), Air Carrier Training Systems and Voluntary Safety 
Programs Branch, AFS-280, Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591; telephone: (703) 661-
0278; email: scott.crosier@faa.gov. Or, Hillary Heintz, AIR Compliance 
and Enforcement Program Manager, Aircraft Certification Service, AIR-
150, 950 L'Enfant Plaza N SW., Washington, DC 20024; telephone (202) 
267-1446; email: hillary.heintz@faa.gov.

SUPPLEMENTARY INFORMATION:

I. Authority for This Designation

    The FAA sets forth this designation pursuant to title 49 of the 
United States Code (49 U.S.C.) section 40123 and title 14, Code of 
Federal Regulations (14 CFR), part 193.

II. Overview of Proposed Designation

    On August 17, 2006, the Federal Aviation Administration (FAA) 
issued FAA Order 8000.89, Designation of Voluntary Disclosure Reporting 
Program (VDRP) Information as Protected from Public Disclosure under 
part 193. The FAA published the Notice of Order in the Federal 
Register. 71 FR 54405 (Sept. 15, 2006).
    This Proposed Order Designating Information as Protected from 
Disclosure will retain the current protection provided for disclosures 
under FAA Order 8000.89 while also designating disclosures to the 
agency by entities as provided in Advisory Circular (AC) 00-68 as 
protected from public disclosure in accordance with the provisions of 
part 193. The comment period for the contents of AC 00-68 opened on 
June 12, 2015 and closed on August 7, 2015.

III. Background

    Under 49 U.S.C. 40123, certain voluntarily provided safety and 
security information is protected from disclosure to encourage persons 
to provide the information to the FAA. The FAA must issue an order 
making certain findings before the information is protected from 
disclosure. The FAA's rules implementing that section are in part 193. 
If the Administrator issues an order designating information as 
protected under 49 U.S.C. 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 49 U.S.C. 40123, 14 CFR part 193, and the order 
designating the information as protected. This proposed order is issued 
under Sec.  193.11, which sets out the notice procedure for designating 
information as protected.

IV. Discussion of the Proposal

Summary of the VDRP Voluntary Information Sharing Program

    A. Who may participate: Regulated entities as provided in AC 00-58, 
as amended, AC 00-68, and AC 121-37.
    B. What voluntarily provided information would be protected from 
disclosure under this proposed designation: The content of all 
submissions by a regulated entity that are accepted under the VDRP, 
including, but not limited to, all of the items listed under Proposed 
Findings, Paragraph IV D(2) below.
    C. How persons would participate: Regulated entities participate by 
notification of an apparent violation to the FAA by the regulated 
entity in accordance with the VDRP reporting procedures, and completion 
of corrective actions in accordance with AC 00-58, as amended, AC 00-
68, and AC 121-37.
    D. Duration of this information sharing program: This information 
sharing program would continue in effect indefinitely, unless the FAA 
terminates the VDRP, or until the order of designation under part 193 
for the VDRP is withdrawn by the FAA.

Proposed Findings

    The FAA proposes to designate information received under the VDRP 
as protected under 49 U.S.C. 40123 and 14 CFR 193.7 based on the 
following findings:
    (1) Summary of why the FAA finds that the information will be 
provided voluntarily.
    The FAA finds that the information will be provided voluntarily. No 
regulated entity is required to participate in the VDRP. Initiation of 
submissions under the VDRP are indicative of the willingness of 
regulated entities to identify and correct their own instances of 
regulatory noncompliance, develop long term comprehensive fixes or 
corrective action plans, and foster safe operating practices.
    (2) Description of the type of information that may be voluntarily 
provided under the program and a summary of why the FAA finds that the 
information is safety or security related.
    The information that would be voluntarily submitted under a VDRP is 
described in AC 00-58, as amended, AC 00-68, and AC 121-37. Because the 
Federal Aviation Regulations specify the minimum requirements for 
safety, and VDRP submissions entail violations of those regulations, 
the information is inherently safety related. It would include the 
following:
    (a) Information contained in an initial notification to the FAA:
--A brief description of the apparent violation, including an estimate 
of the duration of time that it remained undetected, as well as how and 
when it was discovered;
--Verification that noncompliance ceased after it was identified;
--A brief description of the immediate action taken after the apparent 
violation was identified, the immediate action taken to terminate the 
conduct that resulted in the apparent violation, and the person 
responsible for taking the immediate action;
--Verification that an evaluation is underway to determine if there are 
any systemic problems;
--Identification of the person responsible for preparing the 
comprehensive fix for disclosures under AC 00-58, as amended, and AC 
121-37, or the corrective action plan for disclosures under AC 00-68; 
and
--Acknowledgment that a detailed written report will be provided to the 
designated FAA official within the timeframe specified in AC 00-58, as 
amended, AC 121-37, or AC 00-68, as amended.
    (b) Information contained in a detailed written report:
--A list of the specific FAA regulations that may have been violated;
--A description of the apparent violation, including the duration of 
time it remained undetected, as well as how and when it was detected;
--A description of the immediate action taken to terminate the conduct 
that resulted in the apparent violation, including when it was taken, 
and who was responsible for taking the action;
--An explanation that shows the apparent violation was inadvertent;
--Evidence that demonstrates the seriousness of the apparent violation 
and the regulated entity's analysis of that evidence;
--A detailed description of the proposed comprehensive fix or 
corrective action plan, outlining the planned corrective steps, the 
responsibilities for implementing

[[Page 64087]]

those corrective steps, and a time schedule for completion of the fix; 
and
--Identification of the company official responsible for monitoring the 
implementation and completion of the comprehensive fix.
    (c) FAA generated documentation and electronic information that is 
directly associated with an accepted VDRP submission, including, but 
not limited to:
--Acknowledgment of receipt of a VDRP submission;
--Notification of VDRP acceptance, request for modification, or 
rejection;
--Routine correspondence directly associated with a VDRP submission;
--FAA records directly associated with FAA monitoring of a 
comprehensive fix or corrective action plan;
--FAA Letter of Correction in accordance with AC 121-37 or, written 
notification in accordance with AC 00-58, as amended, and AC 00-68, as 
amended, for an accepted VDRP submission; and
--All FAA electronic databases of VDRP submissions and FAA responses.
    (d) Information contained in a report submitted to the FAA under 
the informal voluntary disclosure reporting process described in AC 00-
68, as amended, including, but not limited to:
--A description of the apparent noncompliance;
--A causal analysis of the apparent noncompliance;
--The corrective action(s) taken or planned; and
--The date by which the regulated entity will complete the corrective 
action(s).
    (3) Summary of why the FAA finds that the disclosure of the 
information would inhibit persons from voluntarily providing that type 
of information.
    The FAA finds that disclosure of the information would inhibit the 
voluntary provision of that type of information. Regulated entities are 
reluctant to voluntarily disclose instances of regulatory noncompliance 
if such submissions might be subject to public disclosure. A 
significant impediment to participation in the VDRP is concern over 
public disclosure of the information, and, if disclosed, the potential 
for it to be used for other than the system safety enhancement purposes 
for which the VDRP was created. Withholding such information from 
disclosure is consistent with the FAA's safety and security 
responsibilities because, unless the FAA can provide assurance that it 
will not be disclosed, regulated entities will be reluctant to 
participate in the program. Information received under the VDRP will be 
identified as such in each FAA line of business's central database used 
to track submissions. To encourage continued use of the VDRP, the FAA 
will not keep the identity of persons reporting, or detailed 
information about disclosures, under that program in any central 
database.
    The FAA finds that by virtue of designating information provided 
under the VDRP as protected under part 193, the reluctance of regulated 
entities to participate due to concerns about possible disclosure of 
the information will be mitigated. In addition, FAA will be able to 
retain more information about the disclosures, including the identity 
of the reporters, in an FAA database, without negatively impacting 
participation in the VDRP. Disclosures under the VDRP enable the FAA to 
become aware of many more instances of regulatory noncompliance than it 
otherwise would and, moreover, the VDRP permits the FAA to assure that 
appropriate corrective action is taken. If regulated entities do not 
participate, the FAA and the public will be deprived of the opportunity 
to make the system safety improvements that receipt of the information 
otherwise enables.
    (4) Summary of why the receipt of that type of information aids in 
fulfilling the FAA's safety and security responsibilities.
    The FAA finds that receipt of VDRP information aids in fulfilling 
the FAA's safety and security responsibilities. A primary purpose of 
FAA regulations is to assure public safety. Because the VDRP identifies 
and corrects instances of regulatory noncompliance of which the FAA may 
be otherwise unaware, the program offers significant potential for 
enhancement of public safety. Receipt of this otherwise unavailable 
information would also provide the FAA with an improved basis for 
modifying procedures, policies, and regulations to improve safety and 
efficiency.
    (5) Summary of why withholding such information from disclosure 
would be consistent with the FAA'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 FAA's safety and security 
responsibilities, as described in Sec.  193.9.
    The FAA finds that withholding VDRP information provided to the FAA 
is consistent with the FAA's safety responsibilities. The VDRP 
specifically provides that appropriate corrective action must be taken 
by the regulated entity for all instances of regulatory noncompliance 
accepted under the program. To be accepted by the FAA, apparent 
violations disclosed under the program must be inadvertent, and, where 
applicable, must not indicate a lack, or reasonable question of a lack, 
of qualification of the regulated entity. Corrective action under the 
VDRP can be accomplished by the regulated entity and verified by the 
FAA without disclosure of the protected information. If the FAA 
determines that the steps taken by the entity are not those documented 
in the written report, the submission may be excluded from the VDRP, 
and appropriate legal enforcement action may be initiated.
    The FAA will release information submitted under a VDRP as 
specified in part 193 and this proposed order. The FAA may disclose de-
identified summary information to explain the need for changes in FAA 
policies, procedures, and regulations. The term ``de-identified'' means 
that the identity of the source of the information and the names of the 
regulated entity, employees, and other persons, as well as any other 
information that could be used to ascertain the identity of the 
submitter have been redacted. The FAA may disclose de-identified, 
summarized VDRP information that identifies a systemic problem in the 
aviation system, when other persons need to be advised of the problem 
so that they can take corrective action. The FAA may disclose de-
identified aggregate statistical information concerning VDRP 
submissions. The FAA may disclose independently obtained information 
relating to any event disclosed in a VDRP report, unless the FAA 
determines that in the case of an accepted VDRP submission, release of 
such independently obtained information would be inconsistent with the 
provisions of this order, or would otherwise be prohibited by public 
law or regulation. The FAA also may disclose information concerning 
enforcement action taken for a regulatory violation initially 
identified in a VDRP submission, when that submission is not accepted 
by the FAA, or, if accepted, it is later excluded by the FAA because of 
the regulated entity's failure to comply with the criteria of the VDRP. 
The FAA also may disclose any information about a disclosure initially 
submitted under the VDRP that is not accepted, or accepted but later 
excluded because of the regulated entity's failure to comply with the 
criteria of the VDRP.
    (6) Summary of how the FAA will distinguish information protected 
under part 193 from information the FAA receives from other sources.
    In accordance with AC 00-58, as amended, AC 00-68, and AC 121-37, 
all

[[Page 64088]]

VRDP submissions must be clearly identified as such by the regulated 
entity making the submission. Any other information received by the FAA 
from the regulated entity concerning the content of a VDRP submission 
must be clearly labeled as follows to be eligible for protection under 
this designation: ``WARNING: The Information in this Document is 
Protected from Disclosure under 49 U.S.C. 40123 and 14 CFR part 193.'' 
If the information is submitted electronically, the warning notice must 
be appropriately embedded in the electronic submission in a fashion 
that assures the visibility of the warning to any viewer.

Proposed Designation

    Accordingly, the FAA proposes to designate the above-described 
information submitted under a VDRP to be protected under 49 U.S.C. 
40123 and part 193, when obtained by the FAA pursuant to an accepted 
VDRP submission.

V. Additional information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking 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. 
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.

B. Availability of This Proposed Designation

    An electronic copy of rulemaking documents may be obtained from the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
    3. Accessing the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Aircraft Certification Office, AIR-1, 800 
Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-
8235. Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this proposed rule 
may be accessed from the Internet through the Federal eRulemaking 
Portal referenced in item (1) above.

    Issued under authority provided by 49 U.S.C. 106(f) and 40123 in 
Washington, DC, on September 7, 2016.
David W. Hempe,
Deputy Director, Aircraft Certification Service, AIR-1.
[FR Doc. 2016-21966 Filed 9-16-16; 8:45 am]
 BILLING CODE 4910-13-P
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