33792 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 193

[Docket No. FAA–1999–6001; Amendment

No. 193–1]

RIN 2120–AG36

Protection of Voluntarily Submitted

Information

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final rule.

SUMMARY: The FAA is adding a new part

to its regulations to provide that certain

safety and security information

submitted to the FAA on a voluntarily

basis will not be disclosed. This rule

implements 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: Effective July 25, 2001.

FOR FURTHER INFORMATION CONTACT:

Marisa Mullen, Office of Rulemaking,

ARM–205; or Mardi Ruth 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:

Availability of Rulemaking Documents

You can get an electronic copy using

the Internet by taking the following

steps:

(1) Go to the search function of the

Department of Transportation’s

electronic Docket Management System

(DMS) web page (http://dms.dot.gov/

search).

(2) On the search page type in the last

four digits of the Docket number shown

at the beginning of this notice. Click on

‘‘search.’’

(3) On the next page, which contains

the Docket summary information for the

Docket you selected, click on the

document number for the item you wish

to view.

You can also get an electronic copy

using the Internet through FAA’s web

page at http://www.faa.gov/avr/arm/

nprm/nprm.htm or the Federal

Register’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, notice

number, or amendment number of this

rulemaking.

Small Business Regulatory Enforcement

Fairness Act

The Small Business Regulatory

Enforcement Fairness Act (SBREFA) of

1996 requires FAA to comply with

small entity requests for information or

advice about compliance with statutes

and regulations within its jurisdiction.

Therefore, any small entity that has a

question regarding this document may

contact their local FAA official, or the

person listed under FOR FURTHER

INFORMATION CONTACT. You can find out

more about SBREFA on the Internet at

our site, http://www.gov/avr/arm/

sbrefa.htm. For more information on

SBREFA, e-mail us at 9–AWA–

SBREFA@faa.gov.

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 regrading current safety and

security systems and how they are

functioning today. The FAA is

developing information-sharing

programs in which persons in the

aviation community may share with the

FAA information related to safety and

security.

In one such program, Flight

Operations Quality Assurance (FOQA),

participating air carriers routinely

collect data from flight data recorders

and perform trend analyses, which are

made available for FAA inspection. See

the General Statement of Policy, 63 FR

67505 (December 7, 1998), and the

Notice of Proposed Rulemaking, 65 FR

41528 (July 5, 2000). In the Aviation

Safety Action Program (ASAP), certain

employees for participating air carriers

or major repair stations voluntarily

report safety issues and events. ASAP is

described in Advisory Circular 120–

66A.

An impediment to further

development of voluntary information

sharing 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 FOIA or other

means. There is a strong public policy,

and laws such as the Freedom of

Information Act (FOIA) (5 U.S.C. 552),

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. Carriers

participating in FOQA will not permit

the FAA to remove information from

their premises for further study, because

the carriers do not want the information

from their premises for further study,

because the carriers do not want the

information subject to disclosure by the

FAA under FOIA or other laws.

The Federal Aviation Reauthorization

Act of 1996 (Pub. L. 104–264) provides

relief from these concerns by adding

new section 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 improved

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

‘‘should be useful in the development of

safety policies and regulations.’’ H.R.

Rep. No. 104–714, 104 Cong., 2d Sess.

42.

In addition, in the February 23, 1997

final report, 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

Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations 33793

recommended that the FAA

expeditiously complete rulemaking to

implement the legislation for protecting

voluntarily provided information.

Section 40123 reflects a recognition

that there is a significant benefit to

providing exceptions to the laws and

policies calling for release of

information in order for the FAA to

receive additional safety and security

information that it is not now receiving.

On July 26, 1999, the FAA published a

Notice of Proposed Rulemaking setting

out how the FAA would implement this

new authority (64 FR 40472.) After

review of the comments, this final rule

carries out section 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.

These may include 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.

It should be noted that there are

several interrelated policy decisions that

the FAA makes when it establishes an

information sharing program. For

instance, enforcement policy—what use

the FAA will make of the information to

take enforcement action—is of prime

interest to persons who may be

interested in submitting information. A

favorable enforcement policy may

encourage more participation.

Information sharing programs also

generally include procedures for

corrective action to be taken if the

information reveals a need.

Part 193 does not dictate the

enforcement policy and corrective

action procedures for an information

sharing program. However, if

enforcement action or corrective action

based on information received under

part 193 may result in disclosure of

information that is protected, the order

designating the information as protected

must state the circumstances under

which this might happen.

Discussion of Comments and Sectionby-Section Analysis

The FAA received some 34 comments

on the proposed rule. The commenters

included air carriers (America West

Airlines, Continental Airlines, Inc.,

Northwest Airlines, Inc., Comair),

airport operators (Denver International

Airport, The Port Authority of New

York and New Jersey), representatives of

employees (Air Line Pilots Association,

Association of Professional Flight

Attendants, Independent Association of

Continental Pilots, International

Brotherhood of Teamsters), the media

(USA Today, The Reporters Committee

for Freedom of the Press, The

Washington Post, The New York Times

Company), associations (National Air

Carrier Association, Inc., Air Traffic

Control Association, Inc., Air Transport

Association of America, American

Association of Airport Executives,

Airports Council International—North

America, Regional Airline Association,

OMB Watch), Embry-Riddle

Aeronautical University, the National

Transportation Safety Board, and

individuals. The comments are

discussed below along with the

provisions of the final rule.

The Rule in General

Proposal: The proposed rule was

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). 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 protected is defined

in section 40123 as information that is

voluntarily provided and that is safety

or security related. Section 40123

requires that the Administrator make

certain findings before its protections

apply. The FAA proposed to add a new

part 193 that would describe how the

Administrator would determine that the

requirements of section 40123 are met,

thereby making the information

protected from disclosure.

Comment: A number of commenters

state that the best way to identify

problems is let industry self-disclose.

They state that if the data were released

to the general public it could be

misinterpreted or misused, which

discourages the industry from

submitting it to the FAA without

protection. The National Transportation

Safety Board strongly endorses

programs that encourage the provision

and sharing of safety information and

supports the proposed rule. It states that

similar regulations govern the Safety

Board’s handling of voluntarily

provided information.

FAA response: The FAA agrees that

letting industry self-disclose can be a

highly effective means for the FAA to

gather safety and security information.

Comment: A commenter states that

withholding information because ‘‘it

could be misinterpreted or misused’’ is

not appropriate and is paternalistic.

FAA response: The FAA agrees that

the industry’s concern that the public

would misuse the information is not, in

itself, grounds for the FAA to withhold

it from public disclosure. However,

section 40123 is not ‘‘paternalistic.’’ It

responds to the industry’s reluctance to

submit information if ‘‘it could be

misinterpreted or misused,’’ not the

FAA’s concerns. We will not receive

this valuable information if the industry

continues to have concerns about

release of the information to the general

public.

Comment: Some commenters note the

strong public interest in disclosure and

in monitoring how the FAA is

performing its duties. They point out

that public confidence in how the

agency handles safety issues is

important and should be promoted by

full disclosure. They sate that the public

needs to be able to monitor safety and

how to the government is responding to

safety concerns.

FAA response: The FAA agrees with

these statements. However, in order to

make more progress in aviation safety,

the FAA must acquire much

information from the industry. In

addition to the public interest in

disclosure, the FOIA and other

disclosure laws have long made

exceptions to disclosure, including to

protect various private interests. Section

40123 made such an exception.

Comment: Some commenters believe

that the FAA should require by rule that

safety and security information be

submitted, and that the FAA should not

request that it be submitted voluntarily.

FAA response: The FAA agrees that it

must, in each case, consider whether

safety and security will best be served

by mandatory reporting or by voluntary

submission of information. We

acknowledge, and section 40123

reflects, that voluntary cooperation

between industry and the government

often produces a more robust exchange

of information and ideas, leading to

more valuable insights. When the

private sector is required by rule to

report, it tends to report exactly what is

required and nothing more. We

recognize that people in the industry

know a great deal of information that is

valuable, and feel that in many cases we

will have the most effective exchange of

information and ideas if it is under a

voluntary program rather than

mandated. Further, the Final Report of

the White House Commission on

Aviation Safety and Security, issued on

February 12, 1997, strongly urged that

the FAA work in partnership with

industry to develop the most effective

ways to improve safety and security.

Comment: Some urge that the FAA

release de-identified, summarized

versions of the information that will be

submitted to the FAA under part 193.

33794 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

FAA response: The FAA agrees that

for each program under part 193 it will

consider whether de-identified,

summarized versions of the information

can be released while maintaining an

effective information sharing program.

However, the industry was concerned

that even de-identified information

‘‘could be misinterpreted or misused,’’

which was a basis for section 40123. It

thus appears that if the FAA committed

to releasing de-identified, summarized

information in each case, we would

have less participation. For each

program the FAA will determine what

we can release and have strong

participation from submitters. The

circumstances under which the FAA

will disclose the information will be

stated in the designation for each

information sharing program so

participants will know what to expect.

Comment: Several commenters state

that the FAA can obtain all necessary

information now, and that people can

and will report safety and security

information, and can report

anonymously if they wish.

FAA response: It is true that over the

years the FAA has received quite a bit

of voluntarily provided information

without providing any protection

against disclosure of the information.

The ability of the FAA to receive such

information will not change, and the

FAA expects to continue to receive such

information without regard to part 193.

However, we see that the industry will

not submit some important information

without the protections afforded under

section 40123, such as the information

in FOQA. Industry will not fully submit

that information unless the FAA can

provide protection against release.

It is also true that people now can

submit information anonymously. There

are limits to the usefulness of such

information, however. The information

is in the form the commenter wishes,

and there is little opportunity for the

FAA to ask questions and clarify details.

There also is no chance for the FAA to

require that the person reporting take

corrective action. Further, anonymous

information is wholly inadequate for the

FAA to obtain detailed technical data on

a routine basis such as is involved in

FOQA. Indeed, one of the most useful

features of the FOQA program is that

FAA experts can work closely with

industry experts to extract and analyze

safety information. This could not be

done on an anonymous basis.

Comment: Some state that the rule

would allow industry to hide safety

problems.

FAA response: To the contrary, this

rule will encourage industry to report

safety information that otherwise the

FAA would not hear about. This will

give the FAA the opportunity to analyze

it and initiate corrective measures when

needed. The rule will not give the

industry any new means to hide

information.

Comment: Several commenters noted

that the rule does not address

whistleblowers and the need to protect

them if they report safety or security

issues to the FAA. A commenter states

that the rule should provide for

protection of persons who report on an

individual basis.

FAA response: The proposed rule,

and the final rule, provide for

submission of information by any

person, including individuals. It is true

that the proposed rule did not include

protection from retaliation from

employers and others, that is,

‘‘whistleblower’’ protection. That was

beyone the scope of sec. 40123 and this

rulemaking. However, section 519 of the

Wendell H. Ford Aviation Investment

and Reform Act for the 21st Century

(FAIR–21) (Pub. L. 106–181, new 49

U.S.C. 42121) does provide protection

for employees of air carriers,

contractors, and subcontractors who

provide information to the Federal

government regarding safety violations.

Under this final rule, air carrier or

contractor employees could submit

safety or security information to the

FAA and have their names designated

as protected from disclosure. FAIR–21,

in turn, would protect the employees

from retaliation from the air carriers or

contractors if they found through

another means that the individuals had

reported the problem.

Comment: One commenter states that

the FAA must have sophisticated, user

friendly, networked computer systems

that can be the conduit and repository

of voluntarily disclosed data.

FAA response: The FAA agrees that

we must develop secure computer

systems for voluntarily submitted safety

related information. The design and

development of such systems are

already underway.

Comment: One commenter states that

the FAA should review all voluntary

information programs to form a cohesive

and consistent policy. The commenter

states that there are subtle differences

between existing programs that are

confusing.

FAA response: The FAA does have

several programs (such as ASAP, ASRP,

and the Voluntary Reporting Program

under Advisory Circular 00–58). While

the programs all have the common goal

of obtaining safety information, each

program has different objectives and

uses different methods to obtain that

information from specified persons

within the aviation community. The

policies and procedures that govern

each program are geared toward the

program’s objectives and what is

necessary to make it effective. These are

explained in advisory circulars, which

are available to persons who may be

covered under the programs and to any

other interested persons. The FAA

believes that each program must be

unique to best accomplish its goals.

Section 193.1 What Does This Part

Cover? (Proposed § 193.1(a) Scope and

Delegations)

Proposal: This section explained that

part 193 implements 49 U.S.C. 40123,

protection of voluntarily submitted

information. It also provided for

delegation of the authority under this

part, which has been moved to new

§ 193.15 and discussed under that

section.

No comments were received on this

section. It is adopted essentially as

proposed.

Section 193.3 Definitions

Proposal: This section proposed

definitions for some of the terms used

in part 193.

Agency: No comments were received

on this definition and it is adopted as

proposed. 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 Procedure

Act, 5 U.S.C. 551(1). This part uses a

simplified version of this definition. It

defines ‘‘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 discussion of § 193.5(d).

De-identified: Two comments were

received on this definition. The

comments are discussed under

new§ 193.9(a)(1) (proposed

§ 193.7(a)(1)). The definition is adopted

as proposed. This rule provides for

some limited disclosure of ‘‘deidentified’’ information, which is

defined to mean that the identity of the

source of the information and the names

Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations 33795

of persons are removed from the

information. Under Part 1, ‘‘person’’ is

broadly defined to include not only

individuals, but also such entities as

companies and firms. Thus, information

from an air carrier that is ‘‘deidentified’’ will 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. It will also not include

street addresses, phone numbers, or email addresses.

Disclose: No comments were received

on this definition and it is adopted as

proposed. 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 disclosure information.

‘‘Disclose’’ is defined broadly 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

section 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

also includes release in rulemaking

proceedings, in a press release, or to a

party in a legal action. In some legal

actions, such as some enforcement

actions or criminal prosecutions, the

rule permits disclosure of the

information. See the discussion of new

§ 193.9.

Information: The definition of

‘‘information’’ in the proposed rule

included ‘‘data, reports, source, and

other information.’’ One commenter is

concerned about those provisions of the

rule that would allow for disclosure of

de-identified, summarized information

to explain rulemaking or policy

(proposed § 193.7(a)(1), new

§ 193.9(a)(1)). The commenter is

concerned that the wording of the rule

could be interpreted to mean disclosure

of underlying data. The commenter

notes that the input element ‘‘data’’

transformed into useful ‘‘information’’

following appropriate analysis. The

commenter states that if this distinction

were incorporated within the rule, then

disclosure of de-identified summarized

‘‘information’’ might be acceptable.

It is not the FAA’s intent in this

rulemaking to require the release of

underlying data for the purpose of

explaining new rules or policies based

on information submitted under part

193. The FAA acknowledges that were

it to do so, continued participation in

voluntary safety data reporting programs

would be unlikely. New § 193.9(a)(1)

also includes the terms ‘‘de-identified’’

and ‘‘summarized.’’ Summarized means

that individual incidents are not

specifically described, but are presented

in statistical or other more general form.

De-identified means that the identity of

the source of the information, and the

names of the persons, are removed from

the information. Taken together, the rule

does in fact meet the commenter’s

concerns, in that underlying data will

not be disclosed, that disclosed

information will be in the form of

generalizations or statistical summaries,

and that any such disclosures will not

reveals the source of the information.

We also note that Congress intended

‘‘information,’’ as used in section 40123,

to be read broadly. The legislative

history refers to ‘‘data sharing

programs.’’ H.R. Rep. No. 104–714,

104th Cong., 2nd Sess., 40–41. A change

to the definition of ‘‘information’’ to

preclude ‘‘data’’ might prevent the FAA

from developing programs in which raw

data were submitted to the FAA for

analysis. The FAA wishes to retain the

ability to have such programs under part

193.

Summarized: No comments were

received on this definition and it is

adopted as proposed. ‘‘Summarized’’

information means 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.

Voluntary: Several commenters state

that ‘‘voluntary provided information’’

should be limited to information that

cannot otherwise be obtained. However,

the limited availability of the

information is a factor in section

40123(a)(1) (and appears in new

§ 193.7(b)(3)). It is unnecessary to add

this to the definition of ‘‘voluntary.’’

Section 40123 protections apply only

to information submitted voluntarily.

‘‘Voluntary’’ is defined in this rule to

mean that the information was

submitted without mandate or

compulsion, and not as a condition of

doing business with the government. It

does not include information submitted

as part of a means of complying with

statutory, regulatory, or contractual

requirements. Under this 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 is not voluntarily provided.

The definition of ‘‘voluntary’’ also

provides that a program under this part

may be published in the Code of Federal

Regulation (CFR) and the information

submitted under it will be considered

‘‘voluntarily provided.’’ The FAA

anticipates that some programs adopted

under § 193.9 may be published in Title

14 of the Code of Federal Regulations

(CFR). Other programs may be adopted

as notices that are published in the

Federal Register but not incorporated

into the CFR. The definition of

‘‘voluntary’’ is intended to make clear

that a part 193 program can be

published in the CFR without

destroying its voluntary nature. For

example, the CFR may contain a

voluntary program under which

participants must submit specified

information in order to continue

participation in the program. This

participation, however, is voluntary,

and the information is considered

voluntarily submitted and protected

under part 193. They may stop

participating in the program at will.

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 How May I Submit

Safety or Security Information and Have

It Protected From Disclosure? (Not

Proposed)

This section was not proposed, but

has been added to the final rule to

provide an overview of how the process

works.

Section 193.5(a) explains that a

person may submit information under a

program under this part. The program

33796 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

may be developed based on the person’s

proposal, a proposal from another

person, or a proposal developed by the

FAA. Section 193.5(b) makes clear that

the person may be an individual, a

company, an organization, or any other

person. Section 193.5(c) points out that

the person may propose to develop a

program under this part using either the

notice procedure in § 193.11 or the nonotice procedure in § 193.13. Paragraph

(d) states that if the FAA decides to

protect the information that the person

proposes to submit, it issues an order

designating the information as protected

under this part.

Section 193.5(e) states that the FAA

only designates information as protected

if the FAA makes the findings in

§ 193.7. Paragraph (f) explains that the

designation may be for a program in

which all similar persons may

participate (referred to as a ‘‘national’’

program in the NPRM), or for a program

in which only one person submits

information.

Section 193.5(g) explains that even if

the person receives protection from

disclosure under this part, this part does

not establish the extent to which the

FAA may or may not use the

information to take enforcement action.

Limits on enforcement action, if any, for

a given program under this part will be

in another policy or rule applicable to

that program.

Section 193.7 What Does It Mean for

the FAA to Designate Information as

Projected? (Proposed § 193.5

Withholding Information From

Disclosure)

Proposal: This section proposed the

general provisions for withholding

information from disclosure. Section

19.35(a) proposed to provide that,

except as provided in this part and in

individual programs, the FAA does not

disclose voluntarily provided safety or

security information that has been

designated as protected under this part.

It set out the findings that must be made

under section 40123, and described how

the FAA would deal with sharing

information with other agencies,

disclosing information if the submitter

agrees, and responding to subpoenas.

Comment: A number of commenters

discuss what they believe the

appropriate scope of the protected

information should be. Several state that

the FAA should only protect

information that will discourage further

reporting if it is released, and that the

FAA should limit the information

covered by this rule to the extent

possible. One states that if a submitter

provides additional data and reports,

they should be released unless there

was a substantial reason to believe that

release would lead the submitters to

refuse to submit information in the

future. The commenter states that

withholding information should not be

a ‘‘rubber-stamp operation.’’ Another

commenter believes that the FAA will

make findings to protect information

post-hoc, after it is submitted.

FAA response: The FAA agrees that

the protection afforded under this part

must be limited, and that the FAA may

only protect information that will

discourage further reporting if it is

released. That is what is called for in

section 40123. However, the FAA

usually must decide what information

to protect at the time the designation is

issued, not after the program is

underway. The protection is based on

the idea that we will not receive the

information without this protection, and

submitters must have predictability—

they must know ahead of time whether

their information will be protected. The

findings set out in section 40123 and

new § 193.7 will be made when the

designation is issued.

In the normal case, the designation

will cover only information that will be

submitted after the designation is

issued. However, there may be some

instances in which industry has begun

voluntarily submitting limited

information with the understanding that

Exemption 4 of the FOIA applies

(relating to trade secrets and commercial

or financial information obtained from a

person and privileged or confidential),

and in anticipation that the FAA would

consider protecting it under section

40123 (which is an Exemption 3

statute). In such cases, the FAA may use

the notice process in § 193.11 to

consider whether to apply these

protections to information already

submitted to the FAA.

Comment: Section 40123 provides for

protection if ‘‘disclosure of the

information would inhibit the voluntary

provision of that type of information.’’

In the Notice, the FAA interpreted

‘‘inhibit’’ to mean to discourage or to

repress or to restrain, but not to mean

to prevent the submission of

information. (64 FR at 40474.) Some

commenters object to this interpretation,

and one calls for an objective standard.

FAA response: The FAA agrees that it

must use sound discretion in

determining whether this element of

section 40123 is met, but it is not

possible to have a truly objective

standard. The FAA must evaluate the

possible action of the persons who hold

the information and determine whether

they might provide the information

without the non-disclosure protection.

We note the legislative history that

refers to the FAA withholding

voluntarily provided information if

disclosure would ‘‘discourage’’ people

from providing it. H.R. Rep. No. 104–

714, 104th Cong., 2d Sess. 49. Indeed,

the first choice for the FAA would be to

receive the information with no strings

attached, without going through the

process in part 193, because that would

be far easier. The FAA will only use part

193 when it is apparent that this is the

only way to obtain information that is

likely to be of significant benefit in

meeting the FAA’s safety or security

duties.

Comment: A commenter requests that

we add to the end of proposed

§ 193.5(b)(5) (new § 193.7(b)(5)) that, in

making the determination on whether

withholding information from

disclosure is consistent with the FAA’s

safety and security duties, the FAA shall

take into account the public interest in

disclosure of safety and security

information.

FAA response: We do not believe it is

appropriate to place this factor in

§ 193.7(b)(5), which is essentially

repeating section 40123(a)(2). Section

40123 and part 193 strike a balance

between the release of government-held

information and the interests of the

private sector in preventing full

disclosure of its information. Congress

has determined that there are limited

circumstances under which the safety

and security of the public are enhanced

by the Federal government committing

to withhold information from

disclosure.

Comment: Some commenters believe

there are insufficient controls on when

the FAA can release information to

other agencies. One suggests that the

same process used for subpoenas be

used, that is, the FAA should contact

the submitter before releasing

information to another agency.

FAA response: We cannot commit to

contacting the submitter before each

release to another agency. We cannot

predict all circumstances under which

information may be released to another

agency. However, under new § 193.7(e),

the other agency will have to commit in

writing to protect the information from

disclosure in accordance with section

40123, this part, and the designation. In

response to commenters’ concerns, the

new rule expands the commitments we

request from the other agency. Under

this process sharing information with

other agencies will not be a casual

matter.

Comment: One commenter states that

the FAA should take the position that it

will not disclose voluntarily submitted

information in response to a subpoena.

Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations 33797

FAA response: The FAA concurs that

if information is designated as protected

under this part, the FAA should not

disclose the information unless both the

submitter and the FAA agree to

disclosing the information, or the court

orders disclosure. The final rule has

been changed to reflect this, see the

discussion of new § 193.7(g) below.

Comment: One commenter, an

attorney in private practice, describes

difficulties he encountered in

discovering information regarding the

type certification process for a large

transport category aircraft. He expresses

concern that the part 193 process would

make it harder for litigants in tort cases

to obtain information necessary to

pursue their cases.

FAA response: Part 193 will have no

impact on discovery of type certification

data. Such information will not be

under part 193. First, to the extent such

data is submitted to the FAA in

connection with an application for a

type certificate, it is not ‘‘voluntarily’’

submitted, because it is submitted to

show compliance with FAA rules.

Second, much of the data is never

submitted to the FAA, it is only kept by

the holder of the type certificate and

made available to the FAA for

inspection. Parties must seek such

information from the type certificate

holder, not the FAA. Litigants will

continue to use normal discovery rules

to seek such data in litigation. New part

193 will not affect how these matters are

handled.

New § 193.7: This section describes

what it means for the FAA to designate

information as protected under part 193.

The protections of this part apply only

to information covered under a

designated program, because the

Administrator must make findings in

accordance with section 40123 before

the protections are invoked.

Section 193.7(a) provides that, except

as provided in this part and in

individual programs, the FAA does not

disclose voluntarily provided safety or

security information that has been

designated as protected under this part.

Section 193.7(b) states the elements

for the FAA’s designation of a program

under this part. It includes the elements

that are in section 40123.

Section 193.7(b)(1) requires a finding

that the information would be provided

voluntarily. Only information that is

provided voluntarily may be protected

under section 40123. Some information

that is provided other than voluntarily

may receive protection under other

laws, such as exceptions to the FOIA.

Section 193.7(b)(2) requires a finding

that the information is safety or security

related.

Section 193.7(b)(3) requires a finding

that the disclosure of the information

would inhibit the voluntary provision of

that type of information. The FAA will

consider whether the possibility of

disclosing the information would

sufficiently inhibit the provision of the

information to warrant granting the

protections of section 40123.

Section 193.7(b)(4) requires a finding

that the receipt of that type of

information aids in fulfilling the FAA’s

safety and security responsibilities. This

generally will be done by describing

how the FAA intends to use the

information.

Section 193.7(b)(5) requires a finding

that withholding such information from

disclosure, under the circumstances

stated in the program, will be consistent

with the FAA’s safety and security

responsibilities. There are

circumstances under which disclosure

would be consistent with safety and

security. They are set out in new

§ 193.9, and there may be additional

circumstances for specific programs. By

including the circumstances in the

designation, submitters will know ahead

of time when their information may be

released.

In most cases the designation will

apply only to information provided after

the designation is made. There may be

instances, however, when information

of that type already has been submitted

to the FAA, but that future submissions

may be inhibited without further

protection. In such cases the FAA might

propose to retroactively designate as

protected information that it has

received already under an informationsharing program.

Section 193.7(c) has been added to

clearly state the FAA’s stance on

disclosing part 193 information in

response to a FOIA request. The FAA

does not disclose information protected

under this part in response to a FOIA

request.

Section 193.7(d) makes clear that only

information submitted under a program

designated under this part is protected

from disclosure as described in this

part. The FAA may receive information

on a particular incident both under a

part 193 program and from another

source. Information received by the

FAA through another means is not

protected under part 193. 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.

Section 193.7(e) makes clear that the

Administrator may provide to other

agencies with safety or security

responsibilities information submitted

under part 193. 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, the FAA might share

information with the NTSB, and it may

be important for security to share

information with the FBI or other

agencies with security responsibilities.

The FAA may be required to share

information with agencies that oversee

FAA activities. For example, if the FAA

drafts a regulation based on voluntarily

submitted information, the FAA may

provide that information to the

Department of Transportation’s Office of

the Secretary or the Office of

Management and Budget in connection

with their review of the draft regulation.

The FAA will only give the

information to another agency if the

other agency provides certain written

assurances. The agency must state that

it has a safety or security need for the

information, including the general

nature of the need. This might include,

for instance, review of draft FAA safety

rulemaking, or a criminal investigation

involving possible safety or security

related violations. The agency also will

provide assurance it will protect the

information from disclosure, in

accordance with section 40123, this

part, and the designation, including

marking the information as provided in

the designation. Further, the agency will

assure the FAA that it will limit access

to those with a need to know to carry

out safety and security responsibilities.

The provisions in new § 193.7(e) are

intended to give confidence to

submitters that their information will

not be released to other agencies in an

uncontrolled manner that may lead to

unauthorized disclosure of the

information. Rather, it will be released

only for safety and security purposes,

with adequate controls to protect it from

release.

New § 193.7(f) provides the procedure

in the event that the FAA receives 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. The rule

provides that when the FAA receives a

subpoena for information designated as

protected under this part, the FAA

contacts the person who submitted the

information to determine whether the

submitter objects to disclosure of the

information or wishes to participate in

33798 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

responding to the subpoena. If the

submitter has no objection the FAA

would have the option of disclosing the

information. If the submitter wanted the

information to continue to be protected,

that submitter would have the option of

participating in the response to the

subpoena such as by filing an

appropriate motion with the court. The

submitter would not be required to

participate, however, and may not wish

to if that submitter wishes to remain

anonymous.

New § 193.7(g) provides that if either

the submitter or the FAA wish to resist

the subpoena the FAA will not release

information designated as protected

under this part unless ordered to do so

by a court of competent jurisdiction.

This includes any appeals to higher

courts. The FAA will ask the

Department of Justice to file the

appropriate motion to resist the

subpoena or the FAA will file the

motion. The rule provides that both the

FAA and the submitter must agree to the

release of the voluntarily submitted

information. If the submitter did not

object to releasing the information we

usually would release it. However, there

may be instances in which the submitter

of particular material does not object to

its release but release may comprise

other aspects of the program, in which

case the FAA may decide to continue to

protect it from release. In that case, the

FAA would resist the subpoena. Note

that under new § 193.15 the FAA’s

decisions to release the information

would be made by a high-level official,

the same level that can designate

information as protected.

Section 193.9 Will the FAA Ever

Disclose Information That Is Designated

as Protected Under This Part? (Proposed

§ 193.7 Disclosure of Information)

Proposal: 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.

Some reasons for disclosing information

apply to all FAA programs and activities

and were described in proposed

§ 193.7(a). They involve developing new

policies and regulations (§ 193.7(a)(1)),

evaluating or correcting current

deficiencies (§ 193.7(a)(2)), conducting

criminal investigations or prosecutions

(§ 193.7(a)(3)), and complying with 49

U.S.C. 44905, regarding information

about threats to civil aviation

(§ 193.7(a)(4)). Proposed § 193.7(b)

provided for other disclosures in

individual information sharing

programs.

Comment: One commenter states that

there appears to be a presumption of

non-disclosure, and that the FAA has a

responsibility to provide the public with

safety and security information. Another

commenter believes that the rule

appears to have a bias toward disclosure

of information.

FAA response: The FAA agrees that

the intended bias of part 193 is the same

bias as for section 40123, that is, to

protect the voluntarily submitted

information from disclosure, with

limited exceptions to promote safety

and security. Section 40123 emphasizes

the non-disclosure of information

received under the circumstances of that

statute. It is, in fact, an exemption from

the usual laws and public policy calling

for disclosing government-held

information. However, that statute also

provides for disclosure when safety or

security requires, and the FAA must

disclose in limited circumstances in

order to carry out those duties.

Comment: One commenter states that

disclosure to correct a condition that

may compromise safety or security in

proposed § 193.7(a)(2) is vague.

FAA response: The FAA agrees that

clarification of the rule language is

appropriate. The rule language is

modified to indicate that the FAA

retains the discretion to disclose

information submitted under this part

that compromises safety or security, if

that condition continues uncorrected. In

many cases corrective action may be

accomplished without the FAA

disclosing the information. For instance,

if the FAA can work with a certificate

holder to bring it into compliance

without the need for enforcement

action, there may be no need to disclose

the part 193 information.

Comment: One commenter notes that

when explaining the need for changes in

policies and regulations the FAA is

committing only to releasing

summarized information. The

commenter states that the public may

gain a clearer understanding of the

safety problem from anecdotal

information than from statistical and

general information.

FAA response: The FAA agrees that

the more information, the better the

understanding. However, if the FAA

does not commit to protecting the

details, the information will not be

voluntarily submitted. Our commitment

to release of de-identified, summarized

information in connection with

developing new rules and policies is a

compromise between releasing nothing

(and getting none of the benefits of

informed comment on proposed rules

and policies) and releasing so much

information as to inhibit voluntary

submission of information.

Comment: One commenter states that

there is no need for the FAA to disclose

protected information, even information

that is de-identified and summarized, in

rulemaking. The commenter states that

there is no statutory authority to

disclose individual pieces of data to

support new policies or rulemaking,

that generalized findings and

conclusions based on aggregated data, or

information summaries, are sufficient.

FAA response: The proposed rule and

new § 193.9(a)(1) provide that

individual pieces of data will not be

released for this purpose, only

summarized, de-identified information.

A specific designation may state with

more specificity what the FAA will

release if we find a need for a new rule

or policy based on the protected

information. If an air carrier, for

instance, is applying for a designation or

is commenting on a proposed

designation, it may state what it feels is

an appropriate level of summarization

for the data involved. The FAA

recognizes that if the potential

submitters are not comfortable with the

FAA’s commitments in this regard, we

will receive fewer voluntary

submissions.

We understand the argument that

under sec. 40123 the FAA has the

authority to adopt a new rule based on

protected information without

disclosing even summarized, deidentified information. However, we

believe there is a safety benefit to

providing that summarized, deidentified information to the public. The

public, including the aviation industry,

will be better informed and therefore

better able to provide comments to

improve the rulemaking decisions. This

will also give the industry a better

understanding of the need for the new

rule and the safety or security issues it

is intended to address, leading to more

informed compliance.

Comment: Several persons

commented on the FAA’s release of ‘‘deidentified information,’’ stating that we

must ensure that the source of the

information cannot be traced through

such items as letterheads and email

addresses.

FAA response: The FAA agrees that

such things as letterheads, e-mail

addresses, and other identifying

information must not be released. We

consider this to be included in the

definition of ‘‘de-identified’’ where its

states ‘‘the identity of the source of the

information, * * * are removed

* * *.’’ Further, only summarized

information is released to explain the

need for new rules and policies, so that

photocopies of the submitted

information will not be released. Only

Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations 33799

summarized de-identified versions

prepared by the FAA will be released,

such as descriptions, charts, or tables of

aggregate information. Finally, we note

that the details of how this might be

done may be worked out for each

information sharing program.

Submitters may work with the FAA to

ensure they are confident in how the

information will be handled.

Comment: One commenter requests

that we change proposed § 193.7(a)(1)

and (2) (new § 193.9(a)(1) and (2)) from

referring to what the FAA ‘‘may’’

disclose, to referring to what the FAA

‘‘shall’’ disclose.

FAA response: The FAA disagrees.

The word ‘‘may’’ has been retained in

new § 193.9(a)(1) through (4) to indicate

that the FAA retains the discretion to

disclose the information, but may not

necessarily do so in all cases. The FAA

must retain latitude to both carry out its

safety and security duties and to

encourage the submission of voluntarily

submitted information.

Comment: A commenter asks that

proposed § 193.7(a)(2) (new

§ 193.9(a)(2)) provide for disclosure of

information ‘‘to show corrective action

already taken to correct’’ a condition

that may compromise safety or security.

FAA response: We do not agree that

disclosure under those conditions

would be consistent with the

requirements of section 40123. New

§ 193.9 is intended to show

circumstances in which withholding

information would be inconsistent with

safety or security. However, if the

condition already has been corrected,

there likely is no safety or security need

to release the protected information.

Comment: Two persons comment on

the possible need for the FAA to reveal

some part 193 information under

proposed § 193.7(a)(2) to design and

production approval holders so they can

evaluate airworthiness conditions. See

64 FR at 40476. One commenter states

that the information should be released

only to those with a need to know.

Another commenter states that the

person receiving the information should

be required to refrain from disclosing it.

FAA response: We agree that design

and production approval holders must

protect the information from disclosure.

New § 193.17 contains this provision.

See the discussion of this section below.

Comment: One commenter

recommended that any data submitted

under part 193 be submitted to an

independent third party who would be

responsible for maintaining security,

archiving, and summarizing the

information for the FAA.

FAA response: Third party programs

are an option for the FAA to obtain

safety or security information. The

Aviation Safety Reporting Program

(ASRP, Advisory Circular 00–46D) is

such a program. In ASRP, pilots and

others may submit reports of incidents

to the National Aeronautics and Space

Administration (NASA). NASA in turn

analyzes the data and provides reports

to the FAA under its Aviation Safety

Reporting System (ASRS). This is a

valuable program that the FAA expects

to continue. The ASRP, however, does

not provide for the FAA to interact with

the person providing the information or

to address corrective measures with that

person.

Section 40123 reflects that there is

great benefit to the FAA dealing directly

with those who submit the information.

This relationship allows the FAA to

directly interact with industry experts,

which allows for a more robust

exchange of information and ideas. It

also allows for development of

corrective action, when needed, that

most efficiently addresses the problem.

If that corrective action involves

changes in the air carrier’s operation,

this direct relationship allows the FAA

to monitor the progress and success of

that corrective action. These tasks

would not be possible, or would be

much less efficient, if the FAA received

the information anonymously through a

third party.

With regard to ASAP and FOQA, the

FAA believes that the benefits of

voluntary sharing of safety related

information with the agency are better

served by a direct relationship with the

submitter, rather than through an

independent third party intermediary.

These programs are considered

extensions of the direct relationship that

already exists between an air carrier and

the FAA office responsible for direct

oversight of the air carrier. This direct

relationship permits the FAA to

accomplish timely interpretation of

trends within the context of the

operations of the specific air carrier, to

work cooperatively with the air carrier

to develop feasible strategies for

corrective action when warranted, and

to track the effectiveness of corrective

actions on a timely basis. Since both

ASAP and FOQA programs are

approved on an airline by airline basis,

and continued approval is subject to

FAA monitoring of corrective actions by

particular airlines, the FAA believes

that using third party data collectors for

these particular programs is not

appropriate.

Comment: Many comments note that

in order for all stakeholders in

government and the aviation industry to

share lessons from voluntary safety data

reporting programs, the government

must prescribe a method of protecting

individuals and companies from

enforcement action for voluntarily

provided information. They state that a

failure to have such protection from

enforcement action would chill

participation in the information-sharing

program.

FAA response: Part 193 does not

contain enforcement policy. Part 193 is

intended to include only what is

necessary to carry out section 40123.

There is no need to address enforcement

policy to carry out section 40123, except

to the extent that enforcement action

that the FAA initiates based on

information received under part 193

may result in disclosure of that

information. Further, to the extent that

certain limitations on enforcement may

be appropriate, they can only be offered

in the context of the specific program to

which they are intended to apply. Each

program must be examined on an

individual basis to determine the

appropriateness, if any, of such

protection. For example, the ASAP

program contains a detailed policy

governing when enforcement action

may or may not be taken for violations

that have been reported through ASAP.

See AC–120–66A, paragraph 11.

Although part 193 is not intended to

address protection fro enforcement

action, the FAA understands that this

issue is closely linked to the present

rulemaking. Individuals and airlines are

unlikely to participate in voluntary

safety data reporting programs for which

no protections from enforcement or

other reprisals are provided. In FOQA

and ASAP there are in fact limits on

possible enforcement action that might

be taken based on information obtained

under those programs. We understand

that appropriate enforcement policies,

along with non-disclosure under part

193, may be needed to encourage

participated in information-sharing

programs.

Comment: Several commenters object

to proposed § 193.7(a)(3) (new

§ 193.9(a)(3)) that would allow for

disclosure of information for use in

criminal investigations or prosecutions.

They state that these provisions will

discourage voluntary participation. A

commenter notes that new section

40123 authorizes the FAA to designate

safety and security information as

protected ‘‘notwithstanding any other

provisions of law,’’ and the commenter

therefore recommends that the proposed

use and disclosure of protected

information for criminal investigations

or prosecutions be eliminated from the

rule. This commenter also recommends

using the conditions in Advisory

Circular 00–46D, Aviation Safety

33800 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

Reporting Program (ASRP) as grounds

for taking action.

FAA response: The FAA does not

consider it to be in the interest of safety

or security to forego reporting of

possible criminal violations. Indeed,

criminal violations related to aviation

may pose extreme danger to the flying

public and possible violations must be

investigated, and if warranted,

prosecuted. The ASRP, cited by the

commenter, provides that NASA will

refer information concerning criminal

offenses to the Department of Justice

and the FAA. See AC–00–46D,

paragraph 7.a.(1) and 14 CFR 91.25.

ASAP, too, provides that reports of

possible criminal activity will be

referred to a law enforcement agency.

See AC 121120–66A, paragraph 11.c.(2).

New § 193.9: New § 193.9 describes

when withholding voluntarily

submitted information will not be

consistent with safety or security, as

provided in section 40123(a)(2).

The FAA anticipates that if all other

requirements in section 40123 are met,

it will be infrequent that the FAA will

find it necessary to disclose the

information. This is partly because the

types of information we anticipate

collecting the procedures under which

it will be collected are unlikely to reveal

criminal offenses. This is also true

because we anticipate including in the

information sharing programs a method

to carry out corrective action without

the need for enforcement action or other

process that would call for disclosing

the protected information.

Under FOQA, for example, it is highly

unlikely that routine flight data will

reveal criminal activity or a lack of

qualifications of a certificate holder. In

ASAP, there is a detailed procedure for

initiating corrective action without the

need for enforcement action. If this

process is carried out there will no need

for the FAA to disclose the information.

If this process is not carried out the FAA

may have to take enforcement action

(see AC 120–66A paragraph 10.b.), but

we expect this to happen rarely.

There are some circumstances under

which safety or security will make it

necessary for the FAA to disclose at

least portions of protected information,

which circumstances are stated in this

section. Where disclosure will be

necessary, attempts will be made to

limit the disclosure to the extent

practicable, such as releasing only deidentified and summarized information.

Any information sharing program may

reveal a need for the FAA to change its

rules or policies, for instance. These

will be handled as provided in new

§ 193.9(a)(1), discussed below, and will

involve release of de-identified,

summarized information.

New § 193.9(a)(1) provides for the

disclosure of limited information to

explain the need for changes in policies

and regulations. As is explained in the

legislative history for section 40123, the

information collected in these voluntary

programs ‘‘could help to improve air

safety by helping safety official 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 provisions * * * 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. This 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

best 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 * * *’’ It would not be

consistent with the intent of section

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 part.

On the other hand, it would not be

consistent with safety and security for

the FAA to completely forego the

benefits of informed comment that

comes with disclosing the data

supporting a proposed rule.

The FAA has determined that if we

enter into rulemaking or policy making

based on data submitted under part 193,

we will not release all of the data.

Rather, we will release only data that is

de-identified and that is summarized. In

this way, we will not reveal the source

of the data, but we will reveal enough

information to explain to the public

how the FAA made its decisions on the

new rule or policy. This approach

balances the public’s interest in

understanding the basis for agency

rulemaking and policy making, and the

need to encourage the voluntary

submission of safety and security

information.

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.

New § 193.9(a)(2) provides for

disclosure of information received in a

program under this part to evaluate or

correct a condition that may

compromise safety or security. This

would only be done if the condition

continues uncorrected. We anticipate

that in many or most cases the

corrective action can be accomplished

without the release of protected

information.

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 safety or security

regulations.

The rule language is modified to

indicate that the FAA retains the

discretion to disclose information

submitted under this part to correct a

condition that compromises safety or

security, if that condition continues

uncorrected. In many cases corrective

action may be accomplished without the

FAA disclosing the information. For

instance, if the FAA can work with a

certificate holder to bring it into

compliance without the need for

enforcement action, there may be no

need to disclose the part 193

information.

Under new § 193.9(a)(2) 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 (AD, under part 39) to require

that the deficiency be corrected. The

FAA works with design approval

holders and production approval

holders to identify the need for action

to correct airworthiness problems and to

develop what that action should be.

Design approval holders hold the rights

Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations 33801

to a design for a product approved by

the FAA, such as a type certificate

under part 21. Production approval

holders hold an approval from the FAA

to produce a product, such as a

production certificate, parts

manufacturer approval, or technical

standard order authorization under part

21. 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 § 193.9(a)(2), the FAA

will 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. See, for

example, § 21.99, which requires the

holder of a type certificate to submit

appropriate changes to the FAA for

approval when an AD is issued. If an

AD is issued, it may include deidentified, summarized information in

accordance with § 193.9(a)(1). Under

new § 193.17, those design and

production approval holders will be

required to protect the information from

unauthorized disclosure. See the further

discussion for new § 193.17.

Section 193.9(a)(3) provides 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. It is not in the

interest of safety or security to forego

reporting of possible criminal

violations. Criminal violations related to

aviation may pose extreme danger to the

flying public and possible violations

must be investigated, and if warranted,

prosecuted.

Finally, § 193.9(a)(4) provides 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

terrorists 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 193.9(b) provides 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. Those circumstances will be

described in the designation for that

program, so participants, and the public,

will know. The FAA cannot predict how

information programs may develop in

the future. As new programs under this

part are developed, these uses would be

proposed in specific programs. This way

both the participants in the information

sharing programs and the public will

know how the information will be

disclosed. 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.

Section 193.11 What Is the Notice

Procedure? (Proposed § 193.9

Designating Information as Protected

Under This Part: Notice Procedure)

Proposal: This section proposed to

describe the procedure normally used to

designate information as protected

under part 193. 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

a continuing basis. The process would

include the FAA publishing a proposed

designation in the Federal Register,

considering the comments,and then

publishing a final designation.

Comment: Several comments were

received on the need for the notice and

comment procedure proposed in this

section. One commenter stresses that

the notice procedure is important to

protecting the public’s interest in safety

and security information. One

commenter states that the only

interested parties left entirely without

the ability to know what sorts of

information will be kept secret are the

press and the public. Another

commenter objects that publishing a

notice of proposed designation is an

unnecessary, arduous, public, and

bureaucratic process, which is not

required or authorized by section 40123.

The commenter is of the opinion that

public comment will not aid the

Administrator in understanding the

agency’s goals with respect to

designating a particular program as

protected from disclosure, or expand

her knowledge or qualifications to make

such judgements. The commenter also

objects to the proposal to publish a

notice withdrawing of designation,

stating that such withdrawal would be

better handled by direct agency

correspondence with affected industry

persons.

FAA response: The FAA firmly

believes that, when possible,

designating information as protected

under part 193 should be done by the

notice procedure. The FAA must

balance the industry’s legitimate

concerns about disclosure of sensitive

information with the public’s interest in

safety and security related information.

The notice and comment procedure

provides the public the opportunity to

comment on whether the FAA should

issue the designation, including

whether the designation of a particular

program is consistent with the

Administrator’s safety and security

responsibilities. Further, this process

gives public notice as to what sort of

information the FAA may be collecting

and not making available to the public.

The FAA does not believe that

providing the aviation industry and the

public with the opportunity to comment

on such notices imposes an arduous or

bureaucratic process. Rather, it will

provide all interested parties with an

opportunity to express their viewpoints

for consideration by the FAA in making

its final designation determination.

Once a program has been designated as

protected from disclosure under part

193, that designation continues

indefinitely, unless subsequently

withdrawn by the FAA.

Although the FAA may withdraw a

designation at any time it determines

that continuation of the designation

does not meet the elements of new

§ 193.7, the rule requires that a notice of

withdrawal be published in the Federal

Register. This process is necessary to

inform the public (which will have had

notice of the creation of the

designation), and because a designation

is issued for a particular program rather

than a particular person or persons.

When a designation is withdrawn for a

particular program, that withdrawal

impacts all program participants, and

potential future participants, that the

program no longer is effective.

Comment: One commenter asks

whether the comments on the notice of

proposed designation will be published.

FAA response: The proposal was

silent on this point, but we have

decided to add this feature to the rule.

New § 193.11(c)(7) provides that the

designation includes a summary of the

significant comments received and the

FAA’s responses. This will assist the

public in understanding how the FAA

made the final decision to designate

information as protected.

Comment: One commenter states that

the FAA should assess whether it would

benefit from certain voluntary

information sharing programs with

designations under this part, and not

wait for applications from individuals.

FAA response: The FAA agrees, and

is considering what programs would be

33802 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

of value under this part. As noted, the

FAA expects to propose to designate

information it will receive under FOQA

and under ASAP as protected under this

part.

Comment: The preamble for the

proposal discussed that some

information sharing programs would be

national programs, in which all persons

who are similarly situated could

participate. An example is FOQA, in

which all air carriers may choose to

participate. Two commenters endorse

the use of national programs, stating

that it reduces the administrative

burden for each participant.

FAA response: The final rule retains

the ability for the FAA to designate a

program level such that all similar

persons may participate, such as all air

carriers, or all producers of engines.

These programs will state what is

needed for persons to participate in the

program.

New § 193.11: This section describes

the procedure normally used to

designate information as protected

under part 193. This procedure is for

use where there is not an immediate

need for the information. It generally is

used for programs in which a specific

type of information is to be provided by

types of person on a continuing basis.

For instance, under FOQA, access to

aggregate flight recorder data may be

made available by air carriers on a

regular basis.

The scope of § 193.11 programs would

vary. The FAA create a program that is

available to all individuals or

companies that meet the basic

requirements of that program. For this

type of program, the FAA would

designate information received from all

participants as protected under section

40123, then different persons would

have the option of participating in the

program without obtaining a separate

designation under part 193.

Examples of these programs are

FOQA and ASAP. The FAA anticipates

that it will propose to designate FOQA

and ASAP programs as protected under

section 40123. The proposed

designations would include all of the

items in § 193.7, such a description of

the type of information that may be

voluntarily provided. The comments we

receive will be available to the public on

the DMS web site. If, after public

comment, the FAA decides to designate

these programs as protected under

section 40123, then each company that

participates would receive the

protections of section 40123 without

each obtaining a designation under part

193 for their company FOQA or ASAP

program.

Another way to have an information

program designated as protected under

section 40123 is for a person to submit

an application for a single participant

program, in which only that person

submits information.

Any person may apply to have

information designated as protected

under this part. The application must

include the designation described in

paragraph (c) of § 193.11 that the

applicant would like the FAA to issue.

The FAA will evaluate the application

and either publish a proposed

designation for public comment or deny

the application. The FAA could deny an

application if it did not contain the

information required. It also could be

denied if the FAA determined that the

potential benefits of the proposed

program did not warrant use of FAA

resources at that time, given other

priorities.

You may apply to have information

designated as protected under this part

by submitting an application addressed

to the Docket Management System

(DMS), U.S. Department of

Transportation, Room PL 401, 400

Seventh Street, SW., Washington, DC

20590–0001 for paper submissions, and

the DMS web page at http://

dms.dot.gov/ for electronic submissions.

The FAA may decide to issue a

proposed designation based either on an

application or the FAA’s internal

decision. In either event, if the FAA

determines that the designation may be

advisable, the FAA will publish a

proposed designation in the Federal

Register and request comment.

If after review of the comments the

FAA finds that the elements in § 193.7

were met and the designation is

otherwise advisable, it will publish in

the Federal Register an order

designating the information received

under the program as protected. The

order includes a summary of the

significant comments received and the

FAA’s responses, and summaries of why

the FAA finds that the elements are met.

By publishing the order in the Federal

Register, all interested persons will be

able to see what information they may

provide under the program and receive

the protection described in section

40123 and this part. They may also see

what information the FAA is collecting

but not making available to the public.

Five items in the order are the

elements of section 40123. Section

193.11(c)(1) provides for a summary of

why the FAA finds that the information

will be provided voluntarily. Paragraph

(c)(2) of that section provides for a

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. Paragraph (c)(3) calls

for a summary of why the FAA finds

that the disclosure of the information

would inhibit the voluntary provision of

that type of information. Paragraph

(c)(4) is for a summary of why the

receipt of that type of information aids

in fulfilling the FAA’s safety and

security responsibilities. Paragraph

(c)(5) calls for a summary of why

withholding such information from

disclosure is 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 will not be

consistent with the FAA’s safety and

security responsibilities, as described in

new § 193.9.

New § 193.11(c)(6) provides for a

summary of how the FAA 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 the 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.

New § 193.11(c)(7) provides a

summary of the significant comments

received and the FAA’s responses.

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, if the FAA

issues a designation for ASAP, it will

contain the items listed in § 193.11(c).

But the designation likely will not

include many of the items in AC 120–

66A, such as description of how reports

are processed, the enforcement policies

that apply, and how corrective action is

handled. The approvals for each air

carrier would not need to be published

in the Federal Register as long as they

meet the requirements in the

designation that was published.

Under § 193.11(d), the FAA may

amend a designation using the

procedures in paragraphs (a), (b), and

(c). The amendment may be based on

either an application of one of the

submitters, another person, or the FAA’s

own work. The amendment would be

processed using the notice and

comment procedure.

Section 193.11(e) provides for

withdrawal of the designation if the

FAA determines that the program no

longer meets the elements in § 193.7, or

if the requirements of the individual

program are not met. The withdrawal

Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations 33803

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 receive

information would receive the

protection of section 40123 and part

193.

Section 193.13 What Is the No-Notice

Procedure? (Proposed § 193.11

Designating Information as Protected

Under This Part: No Notice Procedure)

Proposal: This section proposed a

procedure for situations in which there

was an immediate need for the FAA to

received safety or security information.

This process would be a way for the

FAA to assure the submitter of

information that the information would

be protected under this part, but would

not require publication in the Federal

Register and a comment period.

Comment: One comment felt that this

procedure is helpful.

FAA response: The procedure is being

adopted, with some changes discussed

below.

New § 193.13: This procedure is for

when there is an immediate need for the

FAA to receive safety or security

information without taking the time for

publication in the Federal Register and

a comment period. The FAA might need

to obtain the information quickly in

order to evaluate the need for immediate

remedial or corrective action.

The FAA anticipates using this

procedure in rare circumstances. There

may be a serious safety or security issue

for which the FAA needs to collect

information immediately without first

using the procedure in § 193.11. This

procedure would allow the FAA to do

so.

The person can request the protection

by stating their name, the general nature

of the information, and whether they are

willing to provide the information

without the protection of this part. If the

person is unwilling to provide their

name, the information will not be

designated as protected under this part.

There are other means to submit

information anonymously, such as

through the FAA Hotline at (202) 267–

9532. The FAA will accept the

application either verbally or in writing.

The FAA protects information under

this section only when the

Administrator has found that the

elements of § 193.7 are met and that

there is an immediate need to obtain the

information without carrying out the

more time-consuming procedures in

§ 193.11. The designation is in writing.

We anticipate that this procedure may

often involve an individual who has

information regarding a specific

condition, where the information can be

provided all at once or over a short time.

This is different than the notice

procedure in § 193.11, which generally

will involve long-term information

sharing programs.

Section 193.13(c) contains limitations

on the length of time the procedures in

§ 193.13 may be used. That paragraph

provides that this procedure usually

may be used only for 60 days. If an

enforcement or criminal investigation is

underway, the information could

continue to be provided under the

protection of part 193. In addition, if

there is a critical safety or security need

to immediately adopt a program and

begin collecting information in a

program that normally would be under

§ 193.11, the FAA could use § 193.13 to

begin obtaining the information right

away, and initiate the procedure in

§ 193.11 to adopt a long-term program.

This rule does not include the

provisions of proposed § 193.11(d),

which would have provided that

usually the FAA would be able to

disclose information from no-notice

programs in the conduct of enforcement

actions. After further evaluation, we

believe that it is not clear that this will

be necessary in all cases. Each program

will deal with this issue as appropriate.

New § 193.13(d) provides for

amending the designation using the

procedures in paragraphs (a) and (b) of

this section.

Finally, new § 193.13(e) provides that

the designation may be withdrawn by

written notice to the person providing

the information.

Section 193.15 What FAA Officials

Exercise the Authority of the

Administrator Under This Part?

(Proposed § 193.1(a) Scope and

Delegations)

Proposal: The proposal provided for

delegation of the authority under this

part. It stated that the authority of the

Administrator to issue, amend, and

withdraw designations under this part

may be delegated to specified high-level

FAA officials. 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.

Comment: Two commenters note that

only high-level FAA officials may

designate information as protected.

They state that the ability to disclose the

protected information also should be

delegated to the same high level

officials.

FAA response: The FAA agrees.

New § 193.15: This section provides

the same delegation for release of

information that applies to designating

information as protected. These officials

are Associate Administrators and

Assistant Administrators and 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 will have the

authority under this part. This section

further states 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.

Section 193.17 How Must Design and

Production Approval Holders Handle

Information They Receive From the FAA

Under This Part? (Not Proposed)

As discussed above for new

§ 193.9(a)(2), the FAA may need to make

a limited disclosure of protected

information to the holders of design

approvals or production approvals to

evaluate airworthiness conditions. In

the NPRM the FAA asked whether the

approval holders should be required to

protect the information from further

disclosure. Two commenters agreed that

the approval holders should be required

to protect the information.

Under § 193.9(a)(2) the FAA will

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. Under

new § 193.17, those design and

production approval holders will be

required to protect the information from

unauthorized disclosure.

New § 193.17 provides that if the FAA

discloses information under

§ 193.9(a)(2) to an approval holder, the

approval holder must disclose that

information only to persons who need

to know the information to address the

safety or security condition. Approval

holders may disclose the information to

their engineers and other individuals

working on the problem. They may also

disclose the information to a licensee or

supplier if their expertise is needed to

address the safety problem.

Approval holders should use such

practices as marking the materials and

storing them in safe places to avoid

unauthorized disclosure.

We believe that approval holders are

well positioned to protect part 193

information. Approval holders are used

to handling proprietary information,

33804 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

such as trade secrets, which must be

protected from unauthorized disclosure.

New § 193.17(b) provides that unless

an emergency exists, before disclosing

information to approval holders the

FAA will contact the submitter of the

information. The FAA must retain its

discretion on whether an AD, and

disclosure to an approval holder, is

needed, but the submitter will have

notice of the disclosure.

Paperwork Reduction Act

As required by the Paperwork

Reduction Act of 1995 (44 U.S.C.

3507(d)), the FAA has submitted a copy

of these sections to the Office of

Management and Budget for its review.

The collection of information was

approved and assigned OMB Control

Number 2120–0646. Comments on the

proposal have been addressed

previously. However, no specific

comments were received on this

information collection submission.

This final rule will impose a

negligible paperwork burden for persons

that choose to participate in a voluntary

submission program. The person will

submit a letter or other application

notifying the FAA that they wish to

participate in a current program. The

FAA believes that approximately 10 air

carriers and other persons will

participate and prepare one application

each. Assuming that each of the 10

persons 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.

Occasionally, a person may want to

propose a program to the FAA that will

require voluntarily submitted

information that will have to be

protected. The FAA anticipates that

there will only be one (1) such proposal

per decade.

An agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless it displays a currently valid

Office of Management and Budget

(OMB) control number.

International Compatibility

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 differences with

these 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 requires agencies to analyze the

economic effect of regulatory changes

on small entities. Third, the Trade

Agreements Act of 1979 (19 U.S.C.

2531–2533) prohibits agencies from

settling standards that create

unnecessary obstacles to the foreign

commerce of the United States. In

developing U.S. standards, this Trade

Act also requires the consideration of

international standards and, where

appropriate, that they be the basis of

U.S. standards. And fourth, the

Unfunded Mandates Reform Act of 1995

(Pub. L. 104–4) requires federal agencies

to assess the impact of any federal

mandates on State, local, or tribal

governments.

The FAA has determined that this

regulation is a ‘‘significant regulatory

action’’ under section 3(f) of Executive

Order 12866 and Department of

Transportation policies and procedures

(44 FR 11034, February 26, 1979)

because of significant Congressional and

public interest in this rulemaking. This

rule will not have a significant impact

on a substantial number of small

entities, will not constitute a barrier to

international trade, and does not impose

a federal mandate on state, local, or

tribal governments, or the private sector

of $100 million per year.

The FAA has determined that since

the rule will have only a negligible

economic impact, positive or negative,

on the aviation industry, a full

regulatory evaluation is not necessary.

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 rule 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 final rule is that it provides an

objective tool by which the FAA could

improve its safety surveillance. For

example, voluntarily shared data could

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 will be protected

from public disclosure, even if

requested under the Freedom of

Information Act (FOIA). The final rule

will 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

person will have to submit a letter or an

application notifying the FAA that it

wishes to participate in the program.

The FAA believes that this application

Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations 33805

will cost approximately $100 to

generate. The FAA also believes that

approximately 10 persons 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 FAA concerning their

participation in these programs would

be $5,000 over 10 years. Occasionally, a

person 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 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 will outweigh any potential

costs to the public of being denied

access to this information.

Regulatory Flexibility Act

The Rgulatory Flexibility Act of 1980

(5 U.S.C. 60–612) directs the FAA to fit

regulatory requirements to the scale of

the business, organizations, and

governmental jurisdictions subject to

regulation. We are required to determine

whether a proposed or final action will

have a ‘‘significant economic impact on

a substantial number of small entities’’

as defined in the Act. If we find that the

action will have a significant impact, we

must do a ‘‘regulatory flexibility

analysis.’’

This final rule will assist the FAA in

carrying out its safety and security

duties by providing that certain

information submitted to the FAA on a

voluntary basis will not be disclosed.

The economic impact is minimal. Small

entities wishing to participate in any

program where voluntarily submitted

information is protected, must submit a

letter or an application to the FAA

notifying the agency that the entity

wishes to participate. Generating this

letter or application will only cost $100.

If a small entity wishes to propose a

program that would require voluntarily

submitted information, preparing the

proposal will only cost $1,000. Both of

these costs are considered minimal and

will be voluntarily incurred. Therefore,

we certify that this action will not have

a significant economic impact on a

substantial number of small entities.

International Trade

The Trade Agreement Act of 1979 (19

U.S.C. 2531–2533) prohibits Federal

agencies from engaging in any standards

or related activity that create

unnecessary obstacles to the foreign

commerce of the United States.

Legitimate domestic objectives, such as

safety, are not considered unnecessary

obstacles. The statute also requires

consideration of international standards

and where appropriate, that they be the

basis for U.S. standards. In addition,

consistent with the Administration’s

belief in the general superiority and

desirability of free trade, it is the policy

of the Administration to remove or

diminish, to the extent feasible, barriers

to international trade, including both

barriers affecting the export of American

goods and services to foreign countries

and barriers affecting the import of

foreign goods and services into the U.S.

In accordance with the above statute

and policy, the FAA has assessed the

potential effect of this final rule and has

determined that it will have only a

domestic impact and therefore no effect

on any trade-sensitive activity.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act

of 1995 (2 U.S.C. 1532–1538) requires

the FAA to assess the effects of Federal

regulatory actions on state, local, and

tribal governments, and on the private

sector of proposed or final rules that

contain a Federal intergovernmental or

private sector mandate that exceeds

$100 million in any one year (adjusted

annually for inflation). Such a mandate

is deemed to be a ‘‘significant regulatory

action.’’

This action does not contain such a

mandate and, therefore, the

requirements of Act do not apply.

Executive Order 13132, Federalism

The FAA has analyzed this final rule

under the principles and criteria of

Executive Order 13132, Federalism. We

determined that this action would not

have a substantial direct effect on the

States, or the relationship between the

national Government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, we

determined that this final rule does not

have federalism implications.

Plain Language

In response to the June 1, 1998,

Presidential Memorandum regarding the

use of plain language, the FAA reexamined the writing style currently

used in the development of regulations.

The memorandum requires federal

agencies to communicate clearly with

the public. We are interested in your

comments on whether the style of this

document is clear, and in any other

suggestions you might have to improve

the clarity of FAA communications that

affect you. You can get more

information about the Presidential

memorandum and the plain language

initiative at http://

www.plainlanguage.gov.

Environmental Analysis

FAA Order 1050.1D defines FAA

actions that may be categorically

excluded from preparation of a National

Environmental Policy Act (NEPA)

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 notice has

been assessed in accordance with the

Energy Policy and Conservation Act

(EPCA) Pub. L. 94–163, as amended (42

U.S.C. 6362) and FAA Order 1053.1. It

has been determined that the final rule

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 Amendment

In consideration of the foregoing, the

Federal Aviation Administration adds

part 193 to Title 14, Code of Federal

Regulations as follows:

PART 193—PROTECTION OF

VOLUNTARILY SUBMITTED

INFORMATION

Sec.

193.1 What does this part cover?

193.3 Definitions.

193.5 How may I submit safety or security

information and have it protected from

disclosure?

33806 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

193.7 What does it mean for the FAA to

designate information as protected?

193.9 Will the FAA ever disclose

information that is designated as

protected under this part?

193.11 What is the notice procedure?

193.13 What is the no-notice procedure?

193.15 What FAA officials exercise the

authority of the Administrator under this

part?

193.17 How must design and production

approval holders handle information

they receive from the FAA under this

part?

Authority: 49 U.S.C. 106(g), 40113, 40123.

§ 193.1 What does this part cover?

This part describes when and how the

FAA protects from disclosure safety and

security information that you submit

voluntarily to the FAA. This part carries

out 49 U.S.C. 40123, protection of

voluntarily submitted information.

§ 193.3 Definitions.

Agency means each authority of the

Government of the United States,

whether or not the agency 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) Court martial and military

commissions.

De-identified means that the identity

of the source of the information, and the

names of persons have been removed

from the information.

Disclose means to release information

to a person other than another agency.

Examples are disclosures 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 includes data, reports,

source, and other information.

‘‘Information’’ may be used to describe

the whole or a portion of a submission

of information.

Summarized means that individual

incidents are not specifically described,

but are presented in statistical or other

general form.

Voluntary means that the information

was not required to be submitted as part

of a mandatory program, and was not

submitted as a condition of doing

business with the government.

‘‘Voluntarily-provided information’’

does not include information submitted

as part of complying with statutory,

regulatory, or contractual requirements,

except that information submitted as

part of complying with a voluntary

program under this part is considered to

be voluntarily provided.

§ 193.5 How may I submit safety or

security information and have it protected

from disclosure?

(a) You may do so under a program

under this part. The program may be

developed based on your proposal, a

proposal from another person, or a

proposal developed by the FAA.

(b) You may be any person, including

an individual, a company, or an

organization.

(c) You may propose to develop a

program under this part using either the

notice procedure in § 193.11 or the nonotice procedure in § 193.13.

(d) If the FAA decides to protect the

information that you propose to submit

it issues an order designating the

information as protected under this part.

(e) The FAA only issues an order

designating information as protected if

the FAA makes the findings in § 193.7.

(f) The designation may be for a

program in which all similar persons

may participate, or for a program in

which only you submit information.

(g) Even if you receive protection from

disclosure under this part, this part does

not establish the extent to which the

FAA may or may not use the

information to take enforcement action.

Limits on enforcement action applicable

to a program under this part will be in

another policy or rule.

§ 193.7 What does it mean for the FAA to

designate information as protected?

(a) General. When the FAA issues an

order designating information as

protected under this part, the FAA does

not disclose the information except as

provided in this part.

(b) What findings does the FAA make

before designating information as

protected? The FAA designates

information as protected under this part

when the FAA 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 FAA’s

safety and security responsibilities; and

(5) Withholding such information

from disclosure, under the

circumstances provided in this part,

will be consistent with the FAA’s safety

and security responsibilities.

(c) How will the FAA handle requests

for information under the Freedom of

Information Act (FOIA)? The FAA does

not disclose information that is

designated as protected under this part

in response to a FOIA request.

(d) What if the FAA obtains from

another source the same information I

submit? Only information received

under a program under this part is

protected from disclosure under this

part. Information obtained by the FAA

through another means is not protected

under this part.

(e) Sharing information with other

agencies. The FAA may provide

information that you have submitted

under this part to other agencies with

safety or security responsibilities. The

agencies are subject to the requirements

of 49 U.S.C. 40123 regarding

nondisclosure of information. The FAA

will give the information to another

agency only if, for each such request,

the other agency provides the FAA with

adequate assurance, in writing, that—

(1) The agency has a safety or security

need for the information, including the

general nature of the need.

(2) The agency will protect the

information from disclosure as required

in 49 U.S.C. 40123, this part, and the

designation. This includes a

commitment that the agency will mark

the information as provided in the

designation.

(3) The agency will limit access to

those with a need to know to carry out

safety or security responsibilities.

(f) What if the FAA receives a

subpoena for the information I submit?

When the FAA receives a subpoena for

information you have submitted under

this part, the FAA contacts you to

determine whether you object to

disclosure of the information or you

wish to participate in responding to the

subpoena. If both you and the FAA

determine that release of the

information is appropriate, the

information is released. Otherwise, the

FAA will not release information

designated as protected under this part

unless ordered to do so by a court of

competent jurisdiction.

§ 193.9 Will the FAA ever disclose

information that is designated as protected

under this part?

The FAA discloses information that is

designated as protected under this part

when withholding it would not be

consistent with the FAA’s safety and

security responsibilities, as follows:

(a) Disclosure in all programs. (1) The

FAA may disclose de-identified,

summarized information submitted

under this part to explain the need for

changes in policies and regulations. An

example is the FAA publishing a notice

of proposed rulemaking based on your

information, and including a deidentified, summarized version of your

information (and the information from

other persons, if applicable) to explain

the need for the notice of proposed

rulemaking.

Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations 33807

(2) The FAA may disclose information

provided under this part to correct a

condition that compromises safety or

security, if that condition continues

uncorrected.

(3) The FAA may disclose information

provided under this part to carry out a

criminal investigation or prosecution.

(4) The FAA may disclose information

provided under this part to comply with

49 U.S.C. 44905, regarding information

about threats to civil aviation.

(b) Additional disclosures. For each

program, the FAA may find that there

are additional circumstances under

which withholding information

provided under this part would not be

consistent with the FAA’s safety and

security responsibilities. Those

circumstances are described in the

designation for that program.

§ 193.11 What is the notice procedure?

This section states the notice

procedure for the FAA to designate

information as protected under this part.

This procedure is used when there is

not an immediate safety or security need

for the information. This procedure

generally is used to specify a type of

information that you and others like you

will provide on an on-going basis.

(a) Application. You may apply to

have information designated as

protected under this part by submitting

an application addressed to the Docket

Management System (DMS), U.S.

Department of Transportation, Room PL

401, 400 Seventh Street, SW.,

Washington, DC 20590–0001 for paper

submissions, and the DMS web page at

http://dms.dot.gov/ for electronic

submissions. Your application must

include the designation described in

paragraph (c) of this section that you

want the FAA to issue. You should not

include in your application any

information that you do not want

available to the public. The FAA may

issue a proposed designation based on

the application or may deny your

application.

(b) Proposed designation. Before

issuing a designation under this section,

based either on your application or the

FAA’s own initiative, the FAA

publishes a proposed designation in the

Federal Register and requests comment.

(c) Designation. The FAA designates

information as protected under this part

if, after review of the comments, the

FAA makes the findings in § 193.7. The

FAA publishes in the Federal Register

an order designating the information

provided under the program as

protected under this part. The

designation includes the following:

(1) A summary of why the FAA finds

that you and others, if applicable, will

provide the information voluntarily.

(2) A description of the type of

information that you and others, if

applicable, may voluntarily provide

under the program and a summary of

why the FAA finds that the information

is safety or security related.

(3) A summary of why the FAA finds

that the disclosure of the information

would inhibit you and others, if

applicable, from voluntarily providing

of that type of information.

(4) A summary of why the receipt of

that type of information aids in fulfilling

the FAA’s safety and security

responsibilities.

(5) A 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 § 193.9.

(6) A summary of how the FAA will

distinguish information protected under

this part from information the FAA

receives from other sources.

(7) A summary of the significant

comments received and the FAA’s

responses.

(d) Amendment of designation. The

FAA may amend a designation using the

procedures in paragraphs (a), (b), and (c)

of this section.

(e) Withdrawal of designation. The

FAA may withdraw a designation under

this section at any time the FAA finds

that continuation of the designation

does not meet the elements of § 193.7,

or if the requirements of the designation

are not met. The FAA 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.

§ 193.13 What is the no-notice procedure?

This section states the no-notice

procedure for the FAA to designate

information as protected under this part.

This procedure is used when there is an

immediate safety or security need for

the information. This procedure

generally is used for specific

information that you will provide on a

short-term basis.

(a) Application. You may request that

the FAA designate information you are

offering as protected under this part.

You must state your name, at least the

general nature of information, and

whether you will provide the

information without the protection of

this part. Your request may be verbal or

writing.

(b) Designation. The FAA issues a

written order designating information

provided under this section as protected

under this part. The FAA designates the

information as protected under this part

if the FAA—

(1) Makes the findings as § 193.7; and

(2) Finds that there is an immediate

safety or security need to obtain the

information without carrying out the

procedures in § 193.11 of this part.

(c) Time limit. Except as provided in

paragraphs (c)(1) and (c)(2) of this

section, no designation under this

section continues 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 that 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 § 193.11(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) Amendment of designation. The

FAA may amend a designation under

this section using the procedures in

paragraphs (a) and (b) of this section.

(e) Withdrawal of designation. The

FAA may withdraw a designation under

this section at any time the FAA finds

that continuation does not meet the

elements of § 193.7, or if the

requirements of the designation are not

met. The FAA 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.

§ 193.15 What FAA officials exercise the

authority of the Administrator under this

part?

(a) The authority to issue proposed

and final designations, to issue

proposed and final amendments of

designations, and to withdraw

33808 Federal Register / Vol. 66, No. 122 / Monday, June 25, 2001 / Rules and Regulations

designations under this part, and to

disclose information that has been

designated as protected under this part,

is delegated by the Administrator 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.

(b) The officials identified in

paragraph (a) of this section may further

delegate the authority to issue proposed

designations and proposed amendments

to designations.

§ 193.17 How must design and production

approval holders handle information they

receive from the FAA under this part?

(a) If the FAA discloses information

under § 193.9(a)(2) to the holders of

design approvals of production

approvals issued by the FAA, the

approval holder must disclose that

information only to persons who need

to know the information to address the

safety or security condition.

(b) Unless an emergency exists, before

disclosing information to approval

holders the FAA will contact the

submitter of the information.

Issued in Washington, DC, on June 19,

2001.

Jane F. Garvey,

Administrator.

[FR Doc. 01–15853 Filed 6–22–01; 8:45 am]

BILLING CODE 4910–13–M