[Federal Register Volume 64, Number 142 (Monday, July 26, 1999)]
[Proposed Rules]
[Pages 40472-40482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18818]



[[Page 40471]]

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Part IV





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Part 193



Protection of Voluntarily Submitted Information; Proposed Rule

  Federal Register / Vol. 64, No. 142 / Monday, July 26, 1999 / 
Proposed Rules  

[[Page 40472]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 193

[Docket No. FAA-1999-6001; Notice No. 99-14]
RIN 2120-AG36


Protection of Voluntarily Submitted Information

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: The FAA proposes to add a new part to provide that certain 
information submitted to the FAA on a voluntary basis would not be 
disclosed. This proposal would implement 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: Comments must be received on or before September 24, 1999.

ADDRESSES: Comments on this proposed rulemaking should be mailed or 
delivered, in duplicate, to: U.S. Department of Transportation Dockets, 
Docket No. FAA-1999-6001, 400 Seventh Street, SW, Room Plaza 401, 
Washington, DC 20590. Comments may also be sent electronically to the 
following Internet address: [email protected]. Comments may be filed 
and/or examined in Room Plaza 401 between 10 a.m. and 5 p.m. weekdays 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Marisa Mullen, Office of Rulemaking, 
ARM-205, or Mardi 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:

Comments Invited

    Interested persons are invited to participate in the making of the 
proposed rule by submitting such written data, views, or arguments as 
they may desire. Comments relating to the environmental, energy, 
federalism, or economic impact that might result from adopting the 
proposals in this notice are also invited. Substantive comments should 
be accompanied by cost estimates. Comments must identify the regulatory 
docket or notice number and be submitted in triplicate to the Rules 
Docket address specified above.
    All comments received, as well as a report summarizing each 
substantive public contact with FAA personnel on this rulemaking, will 
be filed in the docket. The docket is available for public inspection 
before and after the comment closing date.
    The Administrator will consider all comments received on or before 
the closing date before taking action on this proposed rulemaking. 
Late-filed comments will be considered to the extent practicable. The 
proposals contained in this notice may be changed in light of the 
comments received.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this notice must include a pre-addressed, 
stamped postcard with those comments on which the following statement 
is made: ``Comments to Docket No. FAA-1999-6001.'' The postcard will be 
date stamped and mailed to the commenter.

Availability of NPRM

    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the FAA regulations section 
of the FedWorld electronic bulletin board service (telephone: (703) 
321-3339) or the Government Printing Office's (GPO) electronic bulletin 
board service (telephone: (202) 512-1661).
    Internet users may reach the FAA's web page at http://www.faa.gov/
avr/arm/nprm/nprm.htm or the GPO's web page at http://
www.access.gpo.gov/nara for access to recently published rulemaking 
documents.
    Any person may obtain a copy of this document 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. Communications must identify the notice number or 
docket number of this NPRM.
    Persons interested in being placed on the mailing list for future 
rulemaking documents should request from the above office a copy of 
Advisory Circular No.11-2A, Notice of Proposed Rulemaking Distribution 
System, which describes the application procedure.

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 regarding current safety and security systems and how 
they are functioning today. The FAA is developing data sharing programs 
in which persons in the aviation community, such as air carriers, would 
share with the FAA information related to safety and security. In one 
such program, Flight Operations Quality Assurance (FOQA), in-flight 
data is collected during normal flights and aggregate trend analyses 
from that data are made available for FAA inspection. In Aviation 
Safety Action Programs (ASAP), the FAA and entities of the air 
transportation industry have entered into programs intended to generate 
safety information that may not otherwise be obtainable. ASAP is 
described in Advisory Circular 120-66.
    An impediment to further development of these 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 the Freedom of Information Act (FOIA) (5 U.S.C. Sec. 552) or 
other means.
    The Federal Aviation Reauthorization Act of 1996 (Pub. L. 104-264) 
provides relief from these concerns by adding new Sec. 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 improve 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

[[Page 40473]]

``should be useful in the development of safety policies and 
regulations.'' H.R. Rep. No. 104-714, 104th Cong., 2d Sess. 42.
    In addition, 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 recommended that the FAA expeditiously 
complete rulemaking to implement the legislation for protecting 
voluntarily provided information.
    This notice contains proposals to carry out Sec. 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, including 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.

General Discussion of the Proposals

    The proposed rule is 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).
    There is a strong public policy 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. Section 40123, 
however, reflects a recognition that there is a significant benefit to 
providing exceptions to this policy in order for the FAA to receive 
additional safety and security related information that it is not now 
receiving.
    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 subject to this protection is defined in 
Sec. 40123 as information that is voluntarily provided and that is 
safety or security related. Section 40123 requires that certain 
findings be made by the Administrator before its protections apply. The 
FAA proposes to add a new part 193 that would describe how the 
Administrator would determine that the requirements of Sec. 40123 are 
met, thereby making the information protected from disclosure.
    Not all information that is voluntarily provided to the FAA meets 
the standards in Sec. 40123, and, therefore, is not protected from 
disclosure under Sec. 40123. The FAA often receives information from 
persons who are willing to provide it without the nondisclosure 
protections in Sec. 40123. For instance, persons may call an FAA field 
office to report possible violations such as low flight, or may 
approach inspectors who are at an airport with information on possible 
violations. Such information generally does not meet the requirements 
in Sec. 40123 because the disclosure of the information generally does 
not inhibit the voluntary provision of that type of information. 
Indeed, the person often expects disclosure of the information when the 
FAA acts to address the apparent violation.
    Under proposed part 193, the only information to be protected would 
be information specifically designated as protected in accordance with 
the procedures in Secs. 193.9 or 193.11. Other voluntarily provided 
information would not be protected under this part. Part 193 would 
provide for specific findings to be made by the Administrator as to the 
elements in Sec. 40123. In the ordinary case, the Administrator would 
publish in the Federal Register a proposed designation for specified 
types of information and request comments. After review of the 
comments, the FAA could publish a designation protecting the 
information from disclosure. However, when there is an immediate need 
for the FAA to provide protection in order to receive information, this 
rule would also permit the Administrator to designate the information 
as protected without notice to the public.
    Section 40123 and this proposed rule represent a new effort to 
encourage the aviation community to share information with the FAA. As 
a developing project, it is not clear how best to structure programs to 
maximize the benefits. Accordingly, this proposal is written to provide 
many options for future development and tailoring of individual 
programs. In all cases except those where there is an immediate need 
for the information, the FAA would publish notice of these developments 
and any expansion of the non-disclosure policies in the Federal 
Register and invite comment.

Section-by-Section Analysis

Section 193.1  Scope and Delegations

    This section would explain that part 193 implements 49 U.S.C. 
40123, protection of voluntarily submitted information.
    This section also would provide for delegation of the authority 
under this part. It would state that the authority of the Administrator 
to issue, amend, and withdraw designations under this part may be 
delegated to Associate Administrators and Assistant Administrators and 
to 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 would have the authority under this part. This section 
would further state 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. This would allow 
the Administrator to delegate to other officials the authority to sign 
proposed and final designations to be published in the Federal Register 
under Secs. 193.9 and 193.11. 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.

Section 193.3  Definitions

    This section would define some of the terms used in part 193.
    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 Procedures Act, 5 U.S.C. Sec. 551(1). The FAA 
proposes to use a simplified version of that definition and to define 
``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 the discussion of Sec. 193.5(d).
    As explained below, the proposed rule would provide for some 
limited disclosure of ``de-identified'' information, which would be 
defined to mean that the identity of the source of the information and 
the names of persons are removed from the information. Under Part 1, 
``person'' is broadly defined to include not only

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individuals, but also such entities as companies and firms. Thus, 
information from an air carrier that was ``de-identified'' would 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.
    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 disclose information. 
``Disclose'' would be defined broadly under this proposal 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 Sec. 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 would also include release in 
rulemaking proceedings, in a press release, or to a party in a legal 
action. Note that in some legal actions, such as some enforcement 
actions or criminal prosecutions, the rule would permit disclosure of 
the information. See the discussions of proposed Secs. 193.5(f) and 
193.7(a).
    ``Information'' would mean data, reports, source, and other 
information. It is intended to be inclusive. The word ``information'' 
would be used to describe all or a part of a submission of information.
    ``Summarized'' information would mean 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.
    Section 40123 protections apply only to information submitted 
voluntarily. ``Voluntary'' would be defined to mean that the 
information was submitted without mandate or compulsion, and not as a 
condition of doing business with the government. It would not include 
information submitted as part of a means of complying with statutory, 
regulatory, or contractual requirements. Under this proposed 
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 would not be voluntarily 
provided.
    The definition of ``voluntary'' also provides that a program under 
this part may be published in the Code of Federal Regulations (CFR) and 
the information submitted under it will 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. Other programs may be adopted as notices that are 
published in the Federal Register but not incorporated into the CFR. 
The definition is intended to make clear that a part 193 program can be 
published in the CFR without destroying its voluntary nature.
    This definition is based in part on the views expressed by courts 
as to the nature of a ``voluntary'' submission of information in cases 
under Exemption 4 to the FOIA (5 U.S.C. 552(b)(4)). Under that 
exemption, certain voluntarily provided trade secrets and commercial or 
financial information are exempt from disclosure under FOIA.
    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  Withholding Information From Disclosure

    This section would state the general provisions for withholding 
information from disclosure. Section 193.5(a) would provide that, 
except as provided in this part and in individual programs, the 
Administrator does not disclose voluntarily provided safety or security 
information that has been designated as protected under this part.
    As discussed above, the protections of this part would apply only 
to information covered under a designated program, because the 
Administrator must make findings in accordance with Sec. 40123 before 
the protections of that section are invoked.
    Section 193.5(b) would set forth the basic elements for the 
Administrator's designation of a program under this part covering a 
type of information. It includes the elements that are in Sec. 40123.
    Section 193.5(b)(1) would require a finding that the information 
would be provided voluntarily. As noted above, only information that is 
provided voluntarily may be protected under Sec. 40123. Some 
information that is provided other than voluntarily may receive 
protection under other laws, such as exemptions to the FOIA.
    Section 193.5(b)(2) would require a finding that the information is 
safety or security related.
    Section 193.5(b)(3) would require a finding that the disclosure of 
the information would inhibit the voluntary provision of that type of 
information. The FAA anticipates that this normally would be based in 
part on statements from the aviation community that they are unwilling 
to provide the information unless the protections of Sec. 40123 are 
ensured. The FAA would conduct an analysis to determine whether the 
possibility of disclosing the information would sufficiently inhibit 
the provision of the information to warrant granting the protections of 
Sec. 40123.
    In most cases the designation would apply only to information 
provided after the designation is made. There may be instances, 
however, when information of that type has been provided in the past, 
but that future submissions may be inhibited without further 
protection. This may be true, for instance, where employees have 
experienced reprisals for submitting adverse information regarding 
their employers. In such cases the FAA might consider designating as 
protected information that it has received already.
    The FAA notes that Sec. 40123 refers to whether disclosure would 
``inhibit'' the voluntary provision of information. In this context, 
the FAA interprets ``inhibit'' to mean to discourage or to repress or 
restrain, but not to mean prevent the provision of information. The FAA 
need only find that the provision of information would be discouraged, 
repressed, or restrained, but not necessarily altogether prevented, to 
designate it as protected under part 193. This is consistent with the 
legislative history that refers to the FAA withholding voluntarily 
provided information if disclosure would ``discourage'' people from 
providing it.

[[Page 40475]]

H.R. Rep. No. 104-714, 104th Cong., 2d Sess. 49.
    Section 193.5(b)(4) would require a finding that the receipt of 
that type of information aids in fulfilling the Administrator's safety 
and security responsibilities. This generally would be done by 
describing how the FAA intends to use the information.
    Section 193.5(b)(5) would require a finding that withholding such 
information from disclosure, under the circumstances stated in the 
program, would be consistent with the Administrator's safety and 
security responsibilities. There may be circumstances under which 
disclosure would be consistent with safety and security. These would be 
described in the designation. See the discussion of Sec. 193.7(b).
    Section 193.5(c) would clarify that only information submitted 
under a program designated under this part would be protected from 
disclosure as described in this part. The FAA may receive information 
on a particular incident both under a designated program and from 
another unrelated source. Information received by the Administrator 
through another means is not protected as described in this part. 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. Another example would be where information 
provided under a part 193 program led the FAA to conduct an 
investigation. If the investigation led to additional information, the 
additional information would not be protected under part 193, but the 
original information would continue to be protected.
    Section 193.5(d) would make clear that nothing in this part 
prevents the Administrator from giving information provided in a 
program under this part to other agencies with safety or security 
responsibilities. 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, at times it may promote safety to share 
information with the NTSB, and it may be important for security to 
share information with the FBI or other agencies with security 
responsibilities. As another example, if the FAA drafts a regulation 
based on voluntarily submitted information, the FAA may provide that 
information to the Department of Transportation or the Office of 
Management and Budget in connection with their review of draft FAA 
rulemaking documents. (See also the discussion of proposed 
Sec. 193.7(a)(1).) Further, if information received suggests that there 
have been criminal violations, the FAA may refer the matter to the 
Department of Justice or other appropriate agency. Section 40123 
supersedes other laws in granting protection to information, when it 
states that the information shall not be disclosed ``Notwithstanding 
any other provision of law.* * *''
    The Administrator would only give the information to another agency 
if the other agency provides adequate assurance, in writing, that it 
will protect the information from disclosure as required. The FAA 
expects that ``adequate assurance'' usually will include a description 
of the procedures the other agency will use to ensure that the 
information is protected from disclosure. This will further promote the 
purpose of Sec. 40123, which is to give people confidence that they can 
provide information to the FAA without fear of inappropriate 
disclosure.
    Section 193.5(e) would provide that the nondisclosure protections 
described in this part do not apply when the person who provided the 
information agrees to its disclosure.
    Section 193.5(f) would provide a specific procedure in the event 
that the FAA received 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. 
Proposed Sec. 193.5(f) would provide that when the FAA receives a 
subpoena for information designated as protected under this part, the 
FAA would contact the person who submitted the information to determine 
whether the person objects to disclosure of the information or wishes 
to participate in responding to the subpoena. If the person had no 
objection the FAA would have the option of disclosing the information. 
If the person wanted the information to continue to be protected, that 
person would have the option of participating in the response to the 
subpoena such as by filing an appropriate motion with the court. The 
person would not be required to participate, however, and may not wish 
to if that person wishes to remain anonymous.
    The FAA would decide based on all the circumstances how to respond 
to a subpoena. If the person did not object to releasing the 
information that likely would be the response, however, there may be 
instances in which the person who provided particular material may not 
object to its release but release may compromise other aspects of the 
program, in which case the FAA may decide to continue to protect it 
from release.
    The FAA represents the government in administrative litigation such 
as many enforcement actions. The FAA does not represent the United 
States government in litigation in Federal or state court, rather the 
Department of Justice (DOJ) provides representations. The FAA would 
either make an appropriate response to a subpoena or request that DOJ 
make an appropriate response, such as to resist disclosing the 
protected information by filing a motion for a protective order or a 
motion to quash the subpoena, or by releasing the requested 
information. In limited circumstances, the government may be required 
to disclose some protected information to a judge so that the judge can 
determine whether the government is properly withholding information 
under the law.

Section 193.7  Disclosure of Information

    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. If all other requirements in 
Sec. 40123 are met, it will be infrequent that the FAA will find it 
advisable to disclose the information. However, there are some 
circumstances under which it would be consistent with safety or 
security to disclose at least portions of an information submission, 
which circumstances would be stated in the proposed regulation and in 
the individual program. Where disclosure would be necessary, attempts 
would be made to limit the disclosure to the extent practicable, such 
as releasing only de-identified and summarized information.
    Some reasons for disclosing information apply to all FAA programs 
and activities and are set forth 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(a)(1) would provide for the disclosure of 
limited information to explain the need for changes in policies and 
regulations. As is explained in the legislative history for Sec. 40123, 
the information collected in these voluntary

[[Page 40476]]

programs ``could help to improve air safety by helping safety officials 
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 provision * * * 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. Such 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 better 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 * * *.'' Another provision 
of law includes the provisions of 5 U.S.C. Sec. 553 that otherwise 
would call for full disclosure of data supporting a proposed 
rulemaking. It would not be consistent with the intent of Sec. 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 proposed part. It also would not be consistent with safety 
and security for the FAA to completely forego the benefits of informed 
comment on a proposed rule that comes with releasing the data 
supporting the proposed rule.
    The FAA proposes, therefore, that if it enters into rulemaking or 
policy making based on data submitted voluntarily under this part, it 
would not release all of the data. Rather, it would release only data 
that is de-identified and that is summarized. In this way, the source 
of the data would not be revealed, but enough information would be made 
available to explain to the public how the FAA made its decisions on 
the proposed changes. This proposed approach attempts to balance the 
public's interest in understanding the basis for agency rulemaking and 
policy making, and the need to encourage the submission of voluntarily 
provided safety and security information.
    In providing de-identified, summarized information, the FAA would 
provide in the rulemaking sufficient information to permit meaningful 
comment. 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.
    Proposed Sec. 193.7(a)(2) would provide for disclosure of 
information received in a program under this part to evaluate or 
correct a condition that may compromise safety or security. 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 the safety or security regulations.
    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 (under part 39) to 
require that the deficiency be corrected. The FAA works with design and 
production approval holders, such as holders of type certificates or 
production certificates under part 21, to identify the need for action 
to correct airworthiness problems and to develop what that action 
should be. 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 proposed Sec. 193.7(a)(2), the 
FAA could 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. The FAA requests 
comments on whether the holder or other person receiving the 
information under similar circumstances should be required to protect 
the information from further disclosure.
    Also under Sec. 193.7(a)(2), the FAA would disclose information to 
assure that the holder of an FAA certificate continues to be qualified 
to hold the certificate. The FAA issues a certificate (such as for an 
air carrier, a producer of aircraft, or an airman) when the applicant 
has shown that all safety and security requirements for that 
certificate are met. If it later becomes evident that the certificate 
holder is unable or unwilling to continue to meet the safety and 
security requirements, that person is no longer qualified to hold the 
certificate. It would be inconsistent with safety or security for that 
person to continue to hold the certificate and exercise its privileges.
    Section 193.7(a)(2) would be used when the FAA receives information 
in a program under part 193 that a certificate holder may not be 
qualified for the certificate. The FAA would first investigate the 
matter. Generally that investigation would include approaching the 
certificate holder to attempt to resolve the matter. If the lack of 
qualifications was confirmed, or if there was a reasonable question as 
to whether the certificate holder was qualified, and no corrective 
action was taken, the FAA might have to resort to remedial action. Such 
remedial action may include an order of compliance or a cease and 
desist order (Sec. 13.20), requiring changes to the certificate 
holder's procedures, or remedial enforcement action. The latter may 
include suspending the certificate until the holder shows that it is 
qualified or revoking the certificate. In taking remedial action the 
FAA may have to disclose some information that was submitted in a part 
193 program. In remedial enforcement action, for instance, the 
certificate holder would have the right to appeal the suspension or 
revocation to the NTSB. The appeal process, except in very limited 
circumstances, is a public process, and evidence used in the case is 
available for inspection and copying by the public. Depending on the 
case, the voluntarily-provided information that gave rise to the 
investigation may or may not be used by the FAA to show that the 
enforcement action was warranted, and may or may not be disclosed in 
the course of the proceeding. This is consistent with the legislative 
history for Sec. 40123, which provides: ``Examples of information the 
withholding of which would be inconsistent with the FAA's safety and 
security responsibilities (and thus still could be disclosed) are 
information required in an enforcement action to prosecute safety or 
security violations.

[[Page 40477]]

* * *'' H.R. Rep. No 104-714, 104th Cong., 2d Sess. 49.
    Section 193.7(a)(2) also would provide for disclosure to prevent 
continuation of an on-going violation of the Federal Aviation 
Regulations (14 CFR Parts 1 through 199), the Hazardous Materials 
Regulations as they relate to air transportation (49 CFR Part 171 et 
seq.), and the relevant statutes. This would occur when the information 
reveals that a violation was continuing to occur and thus remedial 
enforcement action was necessary to correct the violation.
    Section 193.7(a)(3) would provide 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. For instance, in recent years there have 
been some criminal prosecutions involving counterfeit aircraft parts. 
Such parts can present a danger to the traveling public, and it is 
important that those responsible for such crimes be brought to justice. 
The FAA anticipates that, in those few instances in which part 193 
information is provided to a law enforcement agency, it would be used 
mostly to develop leads and otherwise assist in the investigation. The 
part 193 information might not be used as evidence in the prosecution 
and therefor might not be disclosed. However, it might be necessary to 
disclose the information during the prosecution.
    Finally, Sec. 193.7(a)(4) would provide 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 terrorist 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 193.7(b) would provide 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. It is proposed that those circumstances be described in the 
designation for that program. The FAA cannot predict how information 
programs may develop in the future. As the FAA develops uses for the 
information that may require some disclosure, these uses would be 
proposed in individual programs. 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.
    As to enforcement actions, note that this proposed rule speaks only 
to when information may be disclosed in connection with an enforcement 
action. It does not describe what enforcement policy may be applied for 
each designated program. Each program would have different goals and 
provisions for such policies.

Section 193.9  Designating Information as Protected Under This Part: 
Notice Procedure

    This section would describe the procedure normally used to 
designate information as protected under this part. 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 
an on-going basis. For instance, under FOQA, flight recorder data is 
made available by air carriers on an on-going basis. ASAP programs, 
which are entered into by the FAA and entities of the air 
transportation industry, are intended to generate safety information 
that may not otherwise be obtainable.
    The scope of Sec. 193.9 programs would vary. One way would be for 
FAA to create a national program that is national in scope and that is 
available to all individuals or companies that meet the basic 
requirements of that program. For a national program, the FAA would 
designate the entire national program as protected under Sec. 40123. 
Then different persons would have the option of participating in the 
program without obtaining an individual designation under this part.
    Examples of national programs are FOQA and ASAP. The FAA 
anticipates that it will propose to designate the national FOQA and 
ASAP programs as protected under Sec. 40123. The proposed designations 
would include all of the items in Sec. 193.9, such as a description of 
the type of information that may be voluntarily provided. If, after 
public comment, the FAA decides to designate these programs for 
protection under Sec. 40123, then individual air carriers would receive 
the protections of Sec. 40123 without each obtaining a designation 
under part 193 for their individual FOQA and ASAP programs.
    Another way to have an information program designated as protected 
under Sec. 40123 would be for an air carrier or other person to submit 
an application for an individual program. The FAA would evaluate the 
application and either publish a proposed designation based on the 
application for public comment or deny the application. Any person 
would be able to apply to have information designated as protected 
under this part. If the applicant is an air carrier or another 
certificate holder with an FAA principal inspector, the application 
would be sent to the principal inspector. If the applicant has no 
principal inspector, the application would be sent to the local FAA 
Field Office.
    The application would include the designation described in 
paragraph (c) that the applicant would like to be issued. The 
Administrator would evaluate the application, and may issue a proposed 
designation based on the application or may deny the application.
    The Administrator may decide to issue a proposed designation based 
either on an application or the FAA's internal decision. The FAA would 
publish a proposed designation in the Federal Register and request 
comment. After comments were received, the FAA would review them and 
evaluate whether the elements in Sec. 193.5 were met. The Administrator 
would designate information as protected under this part only if the 
elements in Sec. 193.5 were met.
    If the Administrator found that the elements in Sec. 193.5 were 
met, an order designating the information as protected would be 
published in the Federal Register. The order would include summaries of 
why the Administrator found that the elements were met. By publishing 
the order in the Federal Register, all interested persons would be able 
to see that they could provide information under the program and 
receive the protection described in Sec. 40123 and this part.
    The first five items in the order would be the elements of 
Sec. 40123. Section 193.9(c)(1) would provide for a summary of why the 
Administrator finds that the information will be provided voluntarily. 
Paragraph (2) of that section would provide for a description of the 
type of information that may be voluntarily provided under the program 
and a summary of why the Administrator finds that the information is 
safety or security related. Paragraph (3) would call for a summary of 
why the Administrator finds that the disclosure of the information 
would inhibit the voluntary provision of that type of information. 
Paragraph (4) would be for a summary of why the receipt of that type of 
information aids in fulfilling the Administrator's safety and security

[[Page 40478]]

responsibilities. Paragraph (5) would call for a summary of why 
withholding such information from disclosure would be consistent with 
the Administrator'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 Administrator's safety and security responsibilities, as 
described in Sec. 193.7.
    Proposed Sec. 193.9(c)(6) would provide for a summary of how the 
Administrator 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 that 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.
    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, a designation for FOQA might 
contain only the elements contained in Sec. 193.9(c), such as a 
description of the information that may be provided under the program. 
That designation may require each interested air carrier to apply for 
its own FOQA approval, which would provide particular procedures for 
that air carrier. The approvals for each air carrier would not need to 
be published in the Federal Register as long as they are consistent 
with the designation that was published.
    Under Sec. 193.9(d), the FAA could amend a designation in the same 
way it was first adopted.
    Section 193.9(e) would provide for withdrawal of the designation if 
the FAA determines that the program no longer meets the required 
elements in Sec. 193.5, or if the requirements of the individual 
program are not met. The withdrawal 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 received information would receive the 
protection of Sec. 40123 and part 193.

Section 193.11--Designating Information as Protected Under This Part: 
No Notice Procedure

    This proposed procedure is intended for situations in which there 
was an immediate need for the FAA to receive safety or security 
information. The FAA might need to obtain the information quickly in 
order to evaluate the need for immediate remedial or corrective action. 
The process in this section would be a way that the FAA could assure 
the source that the information would be protected under this part, but 
would not require publication in the Federal Register and a comment 
period.
    The FAA anticipates using this procedure in rare circumstances. For 
instance, there may be a serious safety or security violation that an 
air carrier is unwilling to address, and an employee wishes to report 
it. If the information would prove to be correct, enforcement action 
against the air carrier may be likely. The employee may wish for his or 
her name to be protected from disclosure from the air carrier for fear 
of being fired or otherwise suffering reprisals. The protection under 
this part would permit the FAA to withhold the employee's name from 
disclosure.
    The FAA would protect information under this section only when the 
Administrator has found that the elements of Sec. 193.5 were met, and 
that there was an immediate need to obtain the information without 
carrying out the more time-consuming procedures in Sec. 193.9. The 
designation would be in writing.
    This procedure generally would involve an individual who had 
information regarding a specific condition that could be provided all 
at once or over a short time, rather than on-going information sharing 
programs. Section 193.11(c) would contain limitations on the length of 
time these procedures could be used, and generally would provide that 
such an information collection could be used only for 60 days. If an 
enforcement or criminal investigation was underway, the information 
could continue to be provided under the protection of part 193. 
However, we do not rule out the possibility that there may arise a 
critical safety or security need to immediately adopt a program and 
begin collecting information in a program that normally would be under 
Sec. 193.9. In that case, the FAA could use Sec. 193.11 to begin 
obtaining the information right away, and initiate the procedure in 
Sec. 193.9 to adopt a long-term program.
    Section 193.11(d) would describe those circumstances under which 
the information could be disclosed. This is in addition to the 
circumstances listed in Sec. 193.7(a), which would apply to all 
information received under this part. The special circumstances would 
include use in enforcement actions. As noted above, under the rare 
circumstances in which this procedure might be used, enforcement action 
may be the likely result.
    Section 193.11(e) would provide for amending the designation in the 
same way that the designation originally was made.
    Finally, proposed Sec. 193.11(f) would state how the designation 
would be withdrawn. This would be by written notice to the person 
providing the information.

Paperwork Reduction Act

    This proposal contains the following new information collection 
requirements subject to review by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). 
The title, description, number of respondents, and estimate of the 
annual total reporting and recordkeeping burden are shown below.
    Title: Protection of Voluntarily Submitted Information.
    Summary: The FAA proposes to add a new part (part 193) to provide 
that certain information submitted to the FAA on a voluntary basis 
would not be disclosed. This proposal would implement a new statutory 
provision. The purpose of this proposed 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.
    Use of: To encourage people to voluntarily submit desired 
information, Sec. 40123 was added to Title 49, United States Code, in 
the Federal Aviation Reauthorization Act of 1996. Section 40123 allows 
the Administrator, through FAA regulations, to protect from disclosure 
voluntarily provided information relating to safety and security 
issues.
    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 recommended that the FAA expeditiously complete 
rulemaking to implement the legislation for protecting voluntarily 
provided information.
    Respondents (including number of): Those individuals, 
organizations, or businesses that submit information regarding safety 
or security issues,

[[Page 40479]]

including aircraft operators, manufacturers, repair stations, and 
airports.
    Annual Burden Estimate: This proposal would impose a negligible 
paperwork burden for air carriers that choose to participate in this 
program. The air carrier would submit a letter notifying the 
Administrator that they wish to participate in a current program. The 
FAA believes this letter will cost approximately $100 to generate. The 
FAA also believes that approximately 10 air carriers would prepare one 
application each. Assuming that each of the 10 air carriers 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. The total cost to the industry of notifying the Administrator 
concerning the air carriers' participation in these programs would be 
$5,000 over 10 years.
    Occasionally, an air carrier 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 agency solicits public comment regarding the number of 
applications, proposals, and cost of each on the information collection 
requirements to: (1) Evaluate whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (2) evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; (3) enhance the 
quality, utility, and clarity of the information to be collected; and 
(4) minimize the burden of the collection of information on those who 
are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Individuals and organizations may submit comments on the 
information collection requirement by September 24, 1999, to the 
address listed in the ADDRESSES section of this document.
    Persons are not required to respond to a collection of information 
unless it displays a currently valid OMB control number. The burden 
associated with this proposal has been submitted to OMB for review. The 
FAA will publish a notice in the Federal Register notifying the public 
of the approval number.

Compatibility With ICAO Standards

    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 conflicts in these proposed amendments and the 
foreign 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, as amended, requires agencies 
to analyze the economic impact of regulatory changes on small entities. 
Third, the Office of Management and Budget directs agencies to assess 
the effects of regulatory changes on international trade. And fourth, 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 
agencies to prepare a written assessment of the costs, benefits, and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation).
    In conducting these analyses, the FAA has determined that the 
economic impact of this proposed rule does not meet the standards for a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866 and under the Department of Transportation's Regulatory Policies 
and Procedures for Simplification, Analysis, and Review of Regulations 
(44 FR 11034, February 26, 1979). However, the FAA has determined that 
this proposed regulation is significant due to the public interest in 
this rulemaking and, therefore, is subject to review by the Office of 
Management and Budget. Additionally, this proposed rule would not have 
a significant impact on a substantial number of small entities, would 
not constitute a barrier to international trade, and does not contain a 
significant intergovernmental or private sector mandate.
    The FAA has determined that since the proposed rule has only a 
negligible economic impact, positive or negative, on the aviation 
industry, a full regulatory evaluation is not necessary.
    The FAA invites the public to provide comments and supporting data 
on the assumptions made in the evaluation analyses below. All comments 
received will be considered in the final regulatory evaluation.
    The proposed action is initiated in response to requirements of the 
Federal Aviation Authorization Act of 1996 which requires, in part, 
that the Federal Aviation Administration issue regulations to carry out 
a provision of the Act that certain information provided to the FAA on 
a voluntary basis would not be disclosed. The proposal is intended to 
encourage people to voluntarily provide information that will assist 
the FAA in carrying out its safety and security duties.
    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 proposal 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 proposed rule is that it provides an objective tool by 
which the FAA could improve its safety surveillance. For example, 
voluntarily shared data could

[[Page 40480]]

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 is protected from public 
disclosure, even if requested under the Freedom of Information Act 
(FOIA). The proposed rule would 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 air carrier will 
have to submit a letter notifying the Administrator that the air 
carrier wishes to participate in the program. The FAA believes that 
this letter will cost approximately $100 to generate. The FAA also 
believes that approximately 10 air carriers 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 Administrator concerning the air carriers participation in these 
programs would be $5,000 over 10 years. Occasionally, an air carrier 
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. We solicit industry comments regarding the number 
of applications, proposals, and cost of each.
    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 outweighs any potential costs to the public of being 
denied access to this information.
    The White House Commission on Aviation Safety and Security noted in 
its recommendations to the FAA 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. The Commission recommended that the FAA 
complete rulemaking to implement the legislation for protecting 
voluntarily provided information.

Initial Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 establishes ``as a principle 
of regulatory issuance that agencies shall endeavor, consistent with 
the objective of the rule and of applicable statutes, to fit regulatory 
and informational requirements to the scale of the business, 
organizations, and governmental jurisdictions subject to regulation.'' 
To achieve that principle, the Act requires agencies to solicit and 
consider flexible regulatory proposals and to explain the rationale for 
their actions. The Act covers a wide range of small entities, including 
small business, not-for profit organizations, and small governmental 
jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis (RFA) as 
described in the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, Sec. 605(b) of the 1980 Act provides that the 
head of the agency may so certify and an RFA is not required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    The FAA conducted the required review of this proposal and 
determined that it would not have a significant economic impact on a 
substantial number of small entities. Accordingly, pursuant to the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), the Federal Aviation 
Administration certifies that this proposed rule will not have a 
significant impact on a substantial number of small entities. However, 
the FAA solicits comments from the public regarding this determination 
of non-significant impact.

International Trade Impact Statement

    The FAA has determined that the proposed rule would have no impact 
on trade for both United States (U.S.) firms doing business in foreign 
countries or on foreign firms doing business in the U.S.

Federalism Implications

    The regulations proposed herein would not have substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this 
proposal would not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Unfunded Mandates Reform Act Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 
codified as 2 U.S.C. 1501-1571, requires each Federal agency, to the 
extent permitted by law, to prepare a written assessment of the effects 
of any Federal mandate in a proposed or final agency rule that may 
result in expenditures by State, local, and tribal governments, in the 
aggregate, or by the private sector of $100 million or more (adjusted 
annually for inflation) in any one year.
    This proposal does not meet the thresholds of the Act. Therefore, 
the requirements of Title II of the Act do not apply.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National

[[Page 40481]]

Environmental Policy Act (NEPA) environmental assessment or 
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 proposed rule has been assessed in 
accordance with the Energy Policy and Conservation Act (EPCA) and Pub. 
L. 94-163, as amended (42 U.S.C. 6362). It has been determined that it 
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 Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to add part 193 to Title 14, Code of Federal 
Regulations (14 CFR part 193) as follows:

PART 193--PROTECTION OF VOLUNTARILY SUBMITTED INFORMATION

Sec.
193.1 Scope and delegations.
193.3 Definitions.
193.5 Withholding information from disclosure.
193.7 Disclosure of information.
193.9 Designating information as protected under this part: Notice 
procedure.
193.11 Designating information as protected under this part: No 
notice procedure.

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


Sec. 193.1  Scope and delegations.

    (a) This part implements 49 U.S.C. 40123, protection of voluntarily 
submitted information.
    (b) The authority of the Administrator to issue, amend, and 
withdraw designations under this part may be delegated 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. The authority of the Administrator to issue 
proposed designations under this part may be further delegated.


Sec. 193.3  Definitions.

    Agency means each authority of the Government of the United States, 
whether or not it 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) Courts martial and military commissions.
    De-identified means the identity of the source of the information, 
and the names of persons, are removed from the information.
    Disclose means to release information to other than another agency, 
such as under a request 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 means data, reports, source, and other information. 
``Information'' may be used to describe the whole or a portion of a 
submission of information.
    Summarized means individual incidents are not specifically 
described, but are presented in statistical or other more general form.
    Voluntary means that the information was submitted without mandate 
or compulsion, and not as a condition of doing business with the 
government. ``Voluntarily-provided information'' does not include 
information submitted as part of a means of complying with statutory, 
regulatory, or contractual requirements. However, a program under this 
part may be published in the Code of Federal Regulations and the 
information submitted under it will considered ``voluntarily 
provided.''


Sec. 193.5  Withholding information from disclosure.

    (a) Except as provided in this part, the Administrator does not 
disclose voluntarily provided safety or security information that has 
been designated as protected under this part.
    (b) The Administrator designates information as protected under 
this part when the Administrator 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 
Administrator's safety and security responsibilities; and
    (5) Withholding such information from disclosure, under the 
circumstances provided in this part, would be consistent with the 
Administrator's safety and security responsibilities.
    (c) Only information designated as protected under this part is 
protected from disclosure as described in this part. Information 
obtained by the Administrator through another means is not protected as 
described in this part.
    (d) Nothing in this part prevents the Administrator from giving 
information designated as protected under this part to other agencies 
with safety or security responsibilities. Such agencies are subject to 
the requirements of 49 U.S.C. 40123 regarding nondisclosure of 
information. The Administrator will not give the information to another 
agency unless the other agency provides the Administrator with adequate 
assurance, in writing, that it will protect the information from 
disclosure as required in 49 U.S.C. 40123, this part, and the terms of 
the specific program.
    (e) The nondisclosure protections described in this part do not 
apply when the person who provided the information agrees to its 
disclosure.
    (f) When the Administrator receives a subpoena for information 
designated as protected under this part, the Administrator contacts the 
person who submitted the information to determine whether the person 
objects to disclosure of the information or wishes to participate in 
responding to the subpoena. Based on all the circumstances, including 
the person's response, the Administrator requests the Department of 
Justice to make an appropriate response to the subpoena, or the 
Administrator files an appropriate response, such as filing a motion 
for a protective order or a motion to quash the subpoena, or release of 
the information.


Sec. 193.7  Disclosure of information.

    Withholding information that is designated as protected under this 
part would not be consistent with the Administrator's safety and 
security responsibilities, and therefore may be disclosed, as follows:
    (a) Disclosure in all programs.
    (1) De-identified, summarized information provided under this part 
may be disclosed to explain the need for changes in policies and 
regulations.
    (2) Information provided under this part may be disclosed to 
correct a condition that may compromise safety or security.
    (3) Information provided under this part may be disclosed to carry 
out a criminal investigation or prosecution.
    (4) Information provided under this part may be disclosed to comply 
with 49 U.S.C. 44905, regarding information about threats to civil 
aviation.
    (b) Disclosure in particular programs. In individual programs, the 
Administrator may find that there are additional circumstances under 
which withholding information provided

[[Page 40482]]

under this part would not be consistent with the Administrator's safety 
and security responsibilities. Those circumstances are described in the 
designation for that program.


Sec. 193.9  Designating information as protected under this part: 
Notice procedure.

    This section provides the procedure for the Administrator to 
designate information provided under specific programs as protected 
under this part, other than when there is an immediate safety or 
security need for the information. These programs generally specify a 
type of information that will be provided by types of persons on an on-
going basis.
    (a) Application. Any person may apply to have information 
designated as protected under this part by submitting an application 
addressed to the person's FAA principal inspector. If the person has no 
FAA principal inspector, the application should be submitted to the 
local FAA field office. The application shall include the designation 
described in paragraph (c) of this section that the applicant requests 
be issued. The Administrator may issue a proposed designation based on 
the application or may deny the application.
    (b) Proposed designation. Before making a designation under this 
section, either based on an application or otherwise, the Administrator 
publishes a proposed designation in the Federal Register and requests 
comment.
    (c) Designation. The Administrator designates information provided 
under a program as protected under this part if, after review of the 
comments, the Administrator finds that the elements in Sec. 193.5 are 
met. An order designating the information provided under the program to 
be protected under this part is published in the Federal Register. The 
designation includes at least the following:
    (1) A summary of why the Administrator finds that the information 
will be provided voluntarily.
    (2) A description of the type of information that may be 
voluntarily provided under the program and a summary of why the 
Administrator finds that the information is safety or security related.
    (3) A summary of why the Administrator finds that the disclosure of 
the information would inhibit the voluntary provision of that type of 
information.
    (4) A summary of why the receipt of that type of information aids 
in fulfilling the Administrator's safety and security responsibilities.
    (5) A summary of why withholding such information from disclosure 
would be consistent with the Administrator'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 Administrator's safety and 
security responsibilities, as described in Sec. 193.7 of this part.
    (6) A summary of how the Administrator will distinguish information 
protected under this part from other information.
    (d) Amendment of designation. The Administrator may amend a 
designation under this section in the same manner as an original 
designation is made.
    (e) Withdrawal of designation. The Administrator may withdraw a 
designation under this section at any time the Administrator finds that 
continuation of the designation does not meet the elements of 
Sec. 193.5, or if the requirements of the individual program are not 
met. The Administrator 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. 193.11  Designating information as protected under this part: No 
notice procedure.

    This section provides the procedure for the Administrator to 
designate information as protected under this part when there is an 
immediate safety or security need for the information. This section 
generally is used for provision of specific information on a short-term 
basis by a specific person.
    (a) Application. A person may request that the Administrator 
designate information the person is offering as protected under this 
part. The person shall state at least the general nature of information 
and whether the person will provide the information without the 
protection of this part.
    (b) Designation. An order designating information provided under 
this section as protected under this part is in writing. The 
Administrator designates the information as protected under this part 
if the Administrator finds that--
    (1) The elements of Sec. 193.5 are met, and
    (2) There is an immediate safety or security need to obtain the 
information without carrying out the procedures in Sec. 193.9 of this 
part.
    (c) Time limit. Except as provided in paragraphs (c)(1) and (c)(2) 
of this section, no designation under this section shall continue 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 after 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. 193.9(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) Disclosure. Unless otherwise provided in the designation, 
withholding information provided under this section from disclosure in 
the conduct of enforcement actions would not be consistent with the 
Administrator's safety and security responsibilities and, therefore, 
the information may be disclosed.
    (e) Amendment of designation. The Administrator may amend a 
designation under this section in the same manner as an original 
designation is made.
    (f) Withdrawal of designation. The Administrator may withdraw a 
designation under this section at any time the Administrator finds that 
continuation does not meet the elements of Sec. 193.5, or if the 
requirements of the individual program are not met. The Administrator 
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.

    Issued in Washington, DC on July 16, 1999.
Ida M. Klepper,
Acting Director, Office of Rulemaking.
[FR Doc. 99-18818 Filed 7-23-99; 8:45 am]
BILLING CODE 4910-13-P