[Federal Register Volume 62, Number 30 (Thursday, February 13, 1997)]
[Rules and Regulations]
[Pages 6715-6719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3576]


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DEPARTMENT OF TRANSPORTATION
Office of the Secretary

14 CFR Parts 217 and 241

[Docket No. OST-96-1049]
RIN 2105-AC34


International Data Submissions by Large Air Carriers (Form 41 
Schedules T-100, T-100(f), and P-1.2)

AGENCY: Office of the Secretary, (DOT).

ACTION: Final rule.

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SUMMARY: This rule reduces the period of confidential treatment of 
international nonstop segment and on-flight market data from three 
years to immediately following the Department's determination that the 
data base is complete, but no sooner than six months after the date of 
the data. It also requires collection of aircraft capacity data from 
foreign air carriers and rescinds the requirement that Group III (large 
U.S.) air carriers specify passenger enplanements, passengers 
transported, and seating capacity by cabin configuration. At the same 
time, the Department defers a final decision on changes to Schedule P-
1.2--Statement of Operations. The issues pertinent to that schedule 
will be addressed in a supplementary notice of proposed rulemaking that 
will be completed soon.
    In order to provide the reporting air carriers with additional time 
to make changes to their systems, we have established a period of 
several months between the effective date and compliance dates.

DATES: Effective date. This rule shall become effective on March 17, 
1997.
    Compliance dates: The compliance date for foreign air carriers to 
report the additional capacity data is July 1, 1997. The compliance 
date of the new reduced level of reporting for large U.S. Group III air 
carriers is July 1, 1997.

FOR FURTHER INFORMATION CONTACT: John Harman, Office of Aviation 
Analysis, or John Schmidt, Office of Aviation and International 
Economics, Office of the Assistant Secretary for Aviation and 
International Affairs, Office of the Secretary, U.S. Department of 
Transportation, 400 Seventh St. SW., Washington, DC 20590 at (202) 366-
1059 or 366-5420, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On February 15, 1996, the Department of Transportation published a 
notice of proposed rulemaking (NPRM) [61 FR 5963] to make the changes 
summarized above. We also distributed over 500 copies of the notice to 
the aviation community. This rulemaking action was taken on the 
Department's initiative in order to make data available for planning 
and efficient resource allocation purposes, to ensure the accuracy of 
the data that are used by the Department in administering its program 
responsibilities, and to eliminate collection of data that are no 
longer needed for regulatory purposes.
    We received comments from five U.S. air carriers: American Airlines 
(American), Federal Express Corporation (FedEx), Trans World Airlines 
(TWA), United Air Lines (United), and USAir; one foreign air carrier, 
Alia--the Royal Jordanian Airline (Royal Jordanian); the Airports 
Council International--North America (ACI-NA) whose member airports 
handle approximately 90% of the passenger traffic in the United States; 
and the Air Line Pilots Association (ALPA), the bargaining 
representative of more than 44,000 pilots of 38 airlines. Most 
commenters supported the rulemaking.

Discussion of Comments

(1) Confidentiality of International T-100 Data

    American, TWA, United, USAir, ACI-NA, and ALPA strongly supported 
reducing the period of confidentiality from three years to immediately 
following the Department's determination that the data base is 
complete, but no sooner than six months after the date of the data. In 
fact, American said that the data should be published as soon as the 
Department determines that the data base is complete and that there is 
little reason to impose an arbitrary requirement withholding release 
for a minimum of six months. United urged that the rule provide by its 
terms that the release date will be six months after submission and 
that any release beyond that date be the exception and not the rule. 
While that carrier appreciated that all data, both U.S. and foreign 
carrier, should be released at the same time and that database 
preparation delays may occur, it would prefer to have a fixed date for 
release rather than an open-ended one. With respect to American's 
suggestion, the Department did not initially propose to release 
international T-100 data in less than six months in deference to 
perceived carrier concerns that the data might be used for day-to-day 
competitive purposes and also because it expected that receipt, edit, 
and publication of the data from a large number of foreign carriers 
would take about six months. As regards United's view that we specify 
only a six month release date, while we fully expect to be in a 
position to make the data public

[[Page 6716]]

within that time frame, there may be circumstances where a slightly 
longer period of time may be required. We have, therefore, decided to 
retain our proposed language stating that we will release the data 
following a determination by the Department that the database is 
complete, but no sooner than six months after the date of the data.
    Royal Jordanian argued that the Department should seriously 
reexamine its proposal to amend the confidentiality afforded detailed 
nonstop segment and on-flight market data reported by foreign carriers 
under the T-100 program, and upon review, should maintain the current 
three-year confidentiality period for such data. Royal Jordanian 
proposed that, in the event the Department does not re-think this 
proposal in its entirety, it should at least maintain the three-year 
confidentiality period for traffic data in single-carrier markets. 
Royal Jordanian relied on the Department's analysis in the 1988 
rulemaking for support of its statement. In commenting that there are 
no compelling reasons to modify the current protections of 
confidentiality on T-100 data, Royal Jordanian argued that ``I-92 
reports contain accurate data about the origin and destination traffic 
in specific international city-pair markets, which provides perfectly 
useful information for purposes of route planning and market 
analysis.''
    In response, we note that the I-92 data are not origin-destination 
data at all, but rather a count of the number of passengers onboard any 
flight segment arriving in or departing from the United States. As 
Royal Jordanian, itself, remarked, T-100 data is more comprehensive. 
More specifically, T-100 data include onboard data for non-stop 
segments operated into and out of the United States by both foreign and 
U.S. carriers as well as similar data for U.S. carrier flight segments 
operated beyond the foreign gateway. Moreover, they also include on-
flight market data (similar to origin-destination data in that they 
tally the passengers traveling between any two points on that flight) 
for those flights operating into and out of the U.S. In addition, T-100 
data include capacity and operational data for these flights such as 
seats, departures, aircraft type, and block hours. T-100 reports 
include U.S.-Canadian traffic whereas 1-92 reports do not. Finally, T-
100 incorporates both freight and passenger information whereas I-92 
gives only the passenger cabin count. Because T-100 data are taken from 
airline records, there are other system data available to validate any 
questionable numbers. This provides a basis for expecting a high level 
of reliability. These advantages combined with the fact that Royal 
Jordanian has not documented any irrevocable harm would lead us to make 
the T-100 data available, as proposed, to planners, analysts, and other 
users.
    FedEx (an all-cargo carrier) stated that the three-year rule should 
not be changed because the data collected are so specific and sensitive 
that they should not be revealed prematurely. It further argued that 
the data are only of use to the government, and the need for them is 
declining as the U.S. becomes more successful in obtaining open-skies 
agreements. With respect to FedEx's suggestion that the data collected 
are unnecessarily specific, the Department notes that international 
routes are still awarded on a city-to-city basis and are frequently 
limited-entry and that airports are planned and constructed at specific 
cities. With respect to FedEx's assertion that the data are sensitive, 
the discussion in the notice of proposed rulemaking recognized that the 
availability of data could be expected to change the nature of the 
marketplace and, in fact, make it more efficient and competitive. FedEx 
has not, however, documented its assertion that the more timely 
availability of data to all would create an unfair competitive 
advantage. In addition, FedEx did not rebut the carriers' or 
communities' needs for current market data to support negotiating 
positions and requests for route awards. ACI-NA and United described 
the airports' and carriers' needs for these data.
    FedEx also stated that the three-year rule should not be changed 
because the data are so flawed and subject to so many differing 
interpretations that an earlier release may actually damage the 
interests that the Department is trying to promote. FedEx asserted 
that, while the T-100 system gathers detailed information on U.S. 
carriers' activities in foreign markets, much of the foreign carrier 
activity that is in direct competition with the U.S. carriers is not 
reported. It said that the T-100 system should not undercut the U.S. 
position at negotiations because of the lop-sided reporting structure, 
but should be used primarily for internal U.S. analysis, recognizing 
its shortcomings. All these comments apparently refer to the fact that 
U.S. carriers report all international market and segment records, 
while foreign carriers only report those market and segment records 
that have a U.S. point. In order that U.S. air carriers not be placed 
at a competitive disadvantage because of data disclosure 
incompatibility, the Department, in its notice of proposed rulemaking, 
proposed to continue to restrict availability of nonstop segment and 
on-flight market data for segments involving no U.S. points for three 
years. For example, individual U.S. carrier data between two foreign 
airports would be held confidential for three years. (On this same 
subject, American Airlines argued for expanded reporting by foreign 
carriers, including disclosure of `behind' and `beyond' totals for 
reportable `on-flight' traffic.) With respect to FedEx's concerns about 
flawed data, the timely use and scrutiny of these data by industry 
practitioners, once they are removed from the veil of confidentiality, 
can be expected to have a positive effect on the quality of data filed.

(2) Reporting of Capacity Data by Foreign Air Carriers

    ACI-NA, TWA, United, and USAir explicitly supported the collection 
of minimal capacity data from foreign carriers and no commenter 
objected to the collection of these data. Significantly, Royal 
Jordanian, the only foreign carrier to comment, did not oppose the 
collection. As discussed under (4) Other Subjects, American suggested 
that we require expanded reporting by foreign carriers including 
disclosure of ``behind'' and ``beyond'' totals for reportable on-flight 
traffic. (Foreign carriers currently do file ``beyond'' U.S. data if 
the market includes a U.S. point. For example, Japan Airlines reports 
Los Angeles-Sao Paulo operations.) In supporting our proposal, TWA 
stated that it is not unreasonable to require two additional data items 
from foreign carriers and that, even with the new items, the burden 
placed on foreign carriers will be no worse than the burden placed on 
U.S. carriers by foreign governments. Similarly, United emphasized the 
fact that our proposal removes a discriminatory aspect of the previous 
rule that imposed a greater burden on U.S. carriers than on their 
foreign competitors. Total capacity, both U.S. and foreign, is 
important to analyze adequacy of service in a given market. We will, 
therefore, adopt the proposal that foreign carriers report both 
available seats and available payload weight.

(3) Reduction of Data Reporting by Class of Service by U.S. Carriers

    Only United and USAir explicitly supported the reduction of data 
reporting by class of service by U.S. carriers. As mentioned above, 
American argued for expanded reporting by foreign carriers, saying that 
little cost is incurred by complying with the existing

[[Page 6717]]

requirement to report passenger traffic and revenue by class of service 
while the reprogramming of data processing systems would impose an 
immediate burden. TWA did not believe that the Department's proposal 
would reduce reporting burden and did believe that it would deprive 
both the Department and the carriers of important information. The 
carrier suggested either requiring foreign carriers to report class of 
service information, restricting availability of the data only to those 
U.S. carriers that report it, or, in the extreme, collecting it and 
releasing it after six months despite foreign carriers' failure to 
provide similar information.
    We are adopting our proposal to reduce the amount of data currently 
reported by the large Group III U.S. carriers by no longer requiring 
these carriers to report data by cabin configuration. In the NPRM, the 
Department stated that the proposal to reduce the number of data items 
would reduce the reporting burden on U.S. air carriers while providing 
for data comparability among all reporting carriers. Although American 
considered it unfortunate that we proposed to eliminate this level of 
detail and TWA stated that these data were very important, we find that 
the resulting comparability in reported data among all competing U.S. 
and foreign carriers with regard to this specific database outweighs 
the concerns raised by American and TWA. Moreover, since we find that 
the earlier release of data will be procompetitive, it is important, at 
the same time, to ensure that no carriers are adversely affected by a 
continuing requirement to report more detailed data than their 
competitors.
    With regard to the Department's statement in the NPRM that the 
proposal to reduce the number of data items would reduce the reporting 
burden on U.S. air carriers, we have revised our position and we now 
acknowledge that American and TWA correctly pointed out that the 
proposal may produce an initial reporting burden. These carriers' 
comments have led us to assume that the reduction of the number of data 
elements may require some changes to computer programs that extract, 
process, and format the data for submission to the Department. We 
recognize that the impact of these changes will vary among airlines. 
However, no commenters (including American and TWA) submitted data that 
would help us to assess this burden. Our initial presumption is that 
changes to programs that involve relatively simple functions, such as 
data extraction and formatting, would not impose a significant burden. 
However, even if the required changes were significant, they would be 
one-time changes that would affect only the initial implementation. 
Over the long term, the reduced reporting requirements should lessen 
the total burden.

(4) Other Subjects

    The commenters raised a number of other issues not directly 
relating to proposals made in the NPRM. These issues go beyond the 
scope of the current rulemaking, although there may be merit to some of 
them. With these issues in mind, we will continue to assess the quality 
of T-100 data received and ways to improve them. However, no action is 
being taken on the following subjects in this rulemaking.
    FedEx asserted that the international air cargo data collected 
through the T-100 system is so severely flawed and unfair to U.S. 
carriers that the system should be abandoned. It suggested that the 
Department should seriously consider extending the exemption for cargo 
that presently covers domestic operations to the international sector. 
FedEx was specifically concerned about the reporting and publication of 
U.S. carrier Fifth Freedom data when similar data from foreign carriers 
is not collected or published. (American reflected this same concern 
when it requested expanded reporting by foreign carriers, including 
disclosure of ``behind'' and ``beyond'' totals for reportable ``on-
flight'' data.) FedEx pointed out a similar data incompatibility that 
arises among vendors of international freight services when one company 
carries the freight on its own flights for the entire trip while 
another company (for example) carries the freight on its own flight(s) 
on the domestic part of the trip, but serves only as a freight 
forwarder, shipping its cargo on another carrier's flight(s), on the 
foreign part of the trip. FedEx also complained that the T-100 system 
only shows on-flight movements, so that any change in flight numbers 
results in either a double-counting problem (for U.S. carriers that 
transfer freight) or a gap in data (for freight moved off of a foreign 
carrier's flight originating in the U.S. onto a flight the does not 
touch the U.S.). The carrier noted that the on-flight market data only 
show where traffic is enplaned and deplaned, rather than its true 
origin. American urged the Department to require the same level of 
reporting from the foreign airlines as we require from U.S. carriers. 
Specifically, American suggested that we require expanded reporting by 
foreign carriers to disclose information on the ``behind'' and 
``beyond'' totals for reportable on-flight traffic. Alternatively, 
American suggested that we create an enhanced origin and destination 
survey in which both U.S. and foreign carriers would be required to 
submit comparable data.
    On another issue, ACI-NA urged the Department to require that 
commuter carriers operating aircraft with 19 or more seats file 
international data. They pointed out that no data are currently 
available on commuter services in transborder Canadian and Mexican 
markets and in U.S.-Caribbean markets, which are growing in importance. 
The Department recognizes the importance of these markets and the lack 
of available data. However, since the scope of this rulemaking applies 
only to large air carriers, the Department cannot apply these 
requirements to the commuter airline industry in this proceeding. 
Nevertheless, we will continue to monitor the need for and value of the 
data and will propose the necessary changes to reporting requirements 
that are needed to meet our analytical goals.
    ACI-NA also urged the Department to add a requirement that airlines 
provide data on the citizen/alien breakout of their passengers. In 
support, they pointed out that the nationality data is key to 
calculating some of the direct and indirect benefits from foreign 
tourists and business travelers. They noted the precarious financial 
situation involving programs at the Department of Commerce, where the 
I-92 data showing passenger nationality are now produced, might have an 
impact on the currently available data. The timing of this rulemaking 
and the lack of resolution with regard to the future of the I-92 data, 
makes it impractical to consider the nationality issue as part of this 
rulemaking. Depending upon further developments with I-92 data, we may 
need to reconsider the matter.
    TWA noted that the Department has not finalized its proposal of 
October 23, 1995, that U.S. carriers that are code sharing with foreign 
carriers be required to report both for the ticketing and operating 
carriers for code share traffic in their Origin and Destination 
reports. TWA urged the Department to act expeditiously to implement the 
new reporting requirements. This is beyond the scope of this 
rulemaking.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866, and therefore it was not 
reviewed by the

[[Page 6718]]

Office of Management and Budget. The Department has placed a regulatory 
evaluation that examines the estimated costs and effects of the rule in 
the docket.
    The rule is not considered significant under the regulatory 
policies and procedures of the Department of Transportation (44 FR 
11034), because it does not change Departmental policy concerning 
aviation information collection.
    The economic impact of this regulation is insignificant. The change 
in confidentiality restriction has no impact at all on the reporting 
burden of the carriers. For large Group III U.S. air carriers, the 
changes in requirements for reporting passenger and capacity data will 
result in an initial burden for programming changes, but these changes 
are minor and involve one-time costs. Over the long term, these changes 
will reduce the reporting burden for these air carriers by 
approximately 96 hours annually.
    On the other hand, the foreign air carriers will incur an initial 
and annual increase in reporting burden. However, the Department does 
not believe that the increased reporting burden will be significant or 
onerous because this regulation adds only two capacity data items, 
which are readily available from the carriers'' computerized data files 
or other easily accessible reference documents. In order to quantify 
broadly the increased burden, the Department assumed that each of the 
176 foreign air carriers would submit two new data items each month and 
that the process of collecting and transmitting the data would take no 
more than one hour each month. The resulting hourly burden would not 
exceed 12 hours on an annual basis for any foreign air carrier, and the 
resulting total hourly burden on an annual basis for all the foreign 
air carriers as a group would be 2,112 hours. For all air carriers, 
this would be a net burden of 2,016 hours annually or $20,966 based on 
an estimated industry salary rate of about $10.40 an hour. (See 60 FR 
61478, November 30, 1995.)
    The benefits to the public, the industry, and the Department of 
accurate capacity data reported on a reliable and consistent basis, 
although unquantifiable, outweigh the limited increase in reporting 
burden and the small increase in cost.

Executive Order 12612

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612 (``Federalism'') and DOT 
has determined the proposed rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    I certify this rule will not have a significant economic impact on 
a substantial number of small entities. The amendments would affect 
only large U.S. certificated air carriers and foreign air carriers with 
large certificated carriers defined as air carriers holding a 
certificate issued under 49 U.S.C. 41102, as amended, and that operate 
aircraft designed to have a maximum passenger capacity of more than 60 
seats or a maximum payload capacity of more than 18,000 pounds or that 
conduct international operations.

Paperwork Reduction Act

    The reporting and recordkeeping requirement associated with this 
rule is being sent to the Office of Management and Budget for approval 
in accordance with The Paperwork Reduction Act of 1995 (PL 104-113) 
under OMB NO: 2139-0040, formerly OMB NO: 2138-0040; Administration: 
Office of the Secretary; Title: T-100 International Data; Need for 
Information: Passenger and Capacity Information for Aviation Planning 
and Regulation; Proposed Use of Information:  Electronic Dissemination 
to Transportation Planners and Analysts; Frequency:  Monthly; Burden 
Estimate: 2,016 annual hours; Average Burden Hours per Respondent: 12 
annual hours; Estimated Number of Respondents: 8 Air Carriers and 176 
Foreign Air Carriers; For Further Information Contact: IRM Strategies 
Division, M-32, Office of the Secretary of Transportation, 400 Seventh 
Street, SW., Washington, DC 20590-0001, (202) 366-4735. Persons are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number. This final rule contains 
information collection requirements that have been approved under OMB 
No. 2138-0040 and that expire on October 31, 1997.

Regulation Identifier Number

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number 2105-AC34 contained in 
the heading of this document can be used to cross reference this action 
with the Unified Agenda.

List of Subjects in 14 CFR Parts 217 and 241

    Air carriers, Reporting and recordkeeping requirements.

    Accordingly, the Department of Transportation amends 14 CFR Chapter 
II as follows:

PART 217--[AMENDED]

    1. The authority for part 217 continues to read as follows:

    Authority: 49 U.S.C. 329 and chapters 401, 413, 417.

    2. In Sec. 217.5, paragraphs (b)(12) and (b)(13) are added to read 
as follows:


Sec. 217.5  Data collected (data elements).

* * * * *
    (b) * * *
    (12) Available capacity-payload (Code 270). The available capacity 
is collected in kilograms. This figure shall reflect the available load 
(see load, available in 14 CFR part 241 Section 03) or total available 
capacity for passengers, mail and freight applicable to the aircraft 
with which each flight stage is performed.
    (13) Available seats (Code 310). The number of seats available for 
sale. This figure reflects the actual number of seats available, 
excluding those blocked for safety or operational reasons. Report the 
total available seats in item 310.

PART 241--[AMENDED]

    1. The authority for part 241 continues to read as follows:

    Authority: 49 U.S.C. 329 and chapters 401, 411, 417.

    2. In Sec. 19-5 paragraphs (c) (7), (8), and (18) are revised to 
read as follows:
* * * * *
    Section 19 * * *

Sec. 19-5  Air Transport Traffic and Capacity Elements

* * * * *
    (c) * * *
    (7) 110 Revenue passengers enplaned. The total number of revenue 
passengers enplaned at the origin point of a flight, boarding the 
flight for the first time; an unduplicated count of passengers in a 
market. Under the T-100 system of reporting, these enplaned passengers 
are the sum of the passengers in the individual on-flight markets. 
Report only the total revenue passengers enplaned in item 110. For all 
air carriers and all entities, item 110 revenue passengers enplaned is 
reported on Form 41 Schedule T-100 in column C-1, as follows:

[[Page 6719]]



------------------------------------------------------------------------
                                               All carrier groups and   
                                Col.                  entities          
------------------------------------------------------------------------
C-1....................  110..............  Revenue passengers enplaned.
------------------------------------------------------------------------

    (8) 130 Revenue passengers transported. The total number of revenue 
passengers transported over single flight stage, including those 
already on board the aircraft from a previous flight stage. Report only 
the total revenue passengers transported in item 130. For all air 
carriers and all entities, item 130 revenue passengers transported is 
reported on Form 41 Schedule T-100 in Column B-7, as follows:

------------------------------------------------------------------------
                                               All carrier groups and   
                                Col.                  entities          
------------------------------------------------------------------------
B-7....................  130..............  Revenue passengers          
                                             transported.               
------------------------------------------------------------------------

* * * * *
    (18) 310 Available seats. The number of seats available for sale. 
This figure reflects the actual number of seats available, excluding 
those blocked for safety or operational reasons. Report the total 
available seats in item 310. For all air carriers and all entities, 
item 310 available seats, total is reported on Form 41 Schedule T-100 
in column B-4, as follows.

------------------------------------------------------------------------
                                               All carrier groups and   
                                Col.                  entities          
------------------------------------------------------------------------
B-4....................  310..............  Available seats, total.     
------------------------------------------------------------------------

* * * * *
    3. In Section 19-6 paragraph (b) introductory text is revised to 
read as follows:

Section 19-6  Public Disclosure of Traffic Data

* * * * *
    (b) Detailed international on-flight market and nonstop segment 
data in Schedule T-100 and Schedule T-100(f) reports shall be publicly 
available immediately following the Department's determination that the 
database is complete, but no earlier than six months after the date of 
the data. Data for on-flight markets and nonstop segments involving no 
U.S. points shall not be made publicly available for three years. 
Industry and carrier summary data may be made public before the end of 
six months or the end of three years, as applicable, provided there are 
three or more carriers in the summary data disclosed. The Department 
may, at any time, publish international summary statistics without 
carrier detail. Further, the Department may release nonstop segment and 
on-flight market detail data by carrier before the end of the 
confidentiality periods as follows:
* * * * *

    Issued in Washington, DC on February 6, 1997.
Charles A. Hunnicutt,
Assistant Secretary for Aviation and International Affairs.
[FR Doc. 97-3576 Filed 2-12-97; 8:45 am]
BILLING CODE 4910-62-P