[Federal Register Volume 66, Number 122 (Monday, June 25, 2001)]
[Rules and Regulations]
[Pages 33792-33808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-15853]



[[Page 33791]]

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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 193



Protection of Voluntarily Submitted Information; Final Rule

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

[[Page 33792]]


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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.

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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 <a href="/cdn-cgi/l/email-protection#e5dcc8a4b2a4c8b6a7b7a0a3a4a5838484cb828a93"><span class="__cf_email__" data-cfemail="281105697f69057b6a7a6d6e69684e4949064f475e">[email protected]</span></a>.

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

[[Page 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 Section-by-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.

[[Page 33794]]

    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 Sec. 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 Sec. 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 
Sec. 193.5(d).
    De-identified: Two comments were received on this definition. The 
comments are discussed under newSec. 193.9(a)(1) (proposed 
Sec. 193.7(a)(1)). The definition is adopted as proposed. This rule 
provides for some limited disclosure of ``de-identified'' information, 
which is defined to mean that the identity of the source of the 
information and the names

[[Page 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 ``de-identified'' 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 e-mail 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 Sec. 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 Sec. 193.7(a)(1), new 
Sec. 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 
Sec. 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 Sec. 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 
Sec. 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

[[Page 33796]]

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 Sec. 193.11 or the no-notice procedure in 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 193.5(b)(5) (new Sec. 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 Sec. 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 Sec. 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.

[[Page 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 Sec. 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 Sec. 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 
Sec. 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 information-sharing 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 Sec. 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 Sec. 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

[[Page 33798]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 193.7(a). They involve developing new 
policies and regulations (Sec. 193.7(a)(1)), evaluating or correcting 
current deficiencies (Sec. 193.7(a)(2)), conducting criminal 
investigations or prosecutions (Sec. 193.7(a)(3)), and complying with 
49 U.S.C. 44905, regarding information about threats to civil aviation 
(Sec. 193.7(a)(4)). Proposed Sec. 193.7(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 
Sec. 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 Sec. 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, de-identified information. However, we 
believe there is a safety benefit to providing that summarized, de-
identified 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 ``de-
identified 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

[[Page 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 
Sec. 193.7(a)(1) and (2) (new Sec. 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 Sec. 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 Sec. 193.7(a)(2) (new 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 193.7(a)(3) 
(new Sec. 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

[[Page 33800]]

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 Sec. 193.9: New Sec. 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 de-
identified 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 Sec. 193.9(a)(1), 
discussed below, and will involve release of de-identified, summarized 
information.
    New Sec. 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 Sec. 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 Sec. 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

[[Page 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 Sec. 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, Sec. 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 de-identified, summarized information in 
accordance with Sec. 193.9(a)(1). Under new Sec. 193.17, those design 
and production approval holders will be required to protect the 
information from unauthorized disclosure. See the further discussion 
for new Sec. 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, Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 33802]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 193.9.
    New Sec. 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 Sec. 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 
Sec. 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 Sec. 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 
Sec. 193.7, or if the requirements of the individual program are not 
met. The withdrawal

[[Page 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 193.7 are met and 
that there is an immediate need to obtain the information without 
carrying out the more time-consuming procedures in Sec. 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 Sec. 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 Sec. 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 Sec. 193.11, the FAA could use Sec. 193.13 to begin obtaining the 
information right away, and initiate the procedure in Sec. 193.11 to 
adopt a long-term program.
    This rule does not include the provisions of proposed 
Sec. 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 Sec. 193.13(d) provides for amending the designation using the 
procedures in paragraphs (a) and (b) of this section.
    Finally, new Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 193.17, those design and production approval 
holders will be required to protect the information from unauthorized 
disclosure.
    New Sec. 193.17 provides that if the FAA discloses information 
under Sec. 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,

[[Page 33804]]

such as trade secrets, which must be protected from unauthorized 
disclosure.
    New Sec. 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

[[Page 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 re-examined 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?

[[Page 33806]]

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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 193.11 or the no-notice procedure 
in Sec. 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 Sec. 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.


Sec. 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.


Sec. 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 de-identified, summarized version of your information 
(and the information from other persons, if applicable) to explain the 
need for the notice of proposed rulemaking.

[[Page 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.


Sec. 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 Sec. 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 Sec. 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 Sec. 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.


Sec. 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 Sec. 193.7; and
    (2) Finds that there is an immediate safety or security need to 
obtain the information without carrying out the procedures in 
Sec. 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 
Sec. 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 Sec. 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.


Sec. 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

[[Page 33808]]

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.


Sec. 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 Sec. 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


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