[Federal Register Volume 81, Number 181 (Monday, September 19, 2016)]
[Proposed Rules]
[Pages 64085-64088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21966]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 193
[Docket No. FAA-2006-24855]
Voluntary Disclosure Reporting Program
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed order designating information as protected
from disclosure.
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SUMMARY: This notice describes a proposed order through which the
Federal Aviation Administration plans to designate a certain category
of information as protected from public disclosure pursuant to a
Voluntary Disclosure Reporting Program. The Federal Aviation
Administration is required to protect the information from disclosure
to the public, including disclosure required by statute, such as the
Freedom of Information Act, following issuance of an order designating
the information as protected. The instant designation is intended to
encourage participation in the Voluntary Disclosure Reporting Program.
DATES: Comments must be received on or before October 19, 2016.
ADDRESSES: Send comments identified by Docket Number FAA-2006-24855
using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at 202-493-2251.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
[[Page 64086]]
Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for accessing the docket or go to the Docket Operations in Room W12-140
of the West Building Ground Floor at 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For questions concerning this action,
contact Scott Crosier, ASI/Manager, Voluntary Disclosure Reporting
Program (VDRP), Air Carrier Training Systems and Voluntary Safety
Programs Branch, AFS-280, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591; telephone: (703) 661-
0278; email: [email protected]. Or, Hillary Heintz, AIR Compliance
and Enforcement Program Manager, Aircraft Certification Service, AIR-
150, 950 L'Enfant Plaza N SW., Washington, DC 20024; telephone (202)
267-1446; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Authority for This Designation
The FAA sets forth this designation pursuant to title 49 of the
United States Code (49 U.S.C.) section 40123 and title 14, Code of
Federal Regulations (14 CFR), part 193.
II. Overview of Proposed Designation
On August 17, 2006, the Federal Aviation Administration (FAA)
issued FAA Order 8000.89, Designation of Voluntary Disclosure Reporting
Program (VDRP) Information as Protected from Public Disclosure under
part 193. The FAA published the Notice of Order in the Federal
Register. 71 FR 54405 (Sept. 15, 2006).
This Proposed Order Designating Information as Protected from
Disclosure will retain the current protection provided for disclosures
under FAA Order 8000.89 while also designating disclosures to the
agency by entities as provided in Advisory Circular (AC) 00-68 as
protected from public disclosure in accordance with the provisions of
part 193. The comment period for the contents of AC 00-68 opened on
June 12, 2015 and closed on August 7, 2015.
III. Background
Under 49 U.S.C. 40123, certain voluntarily provided safety and
security information is protected from disclosure to encourage persons
to provide the information to the FAA. The FAA must issue an order
making certain findings before the information is protected from
disclosure. The FAA's rules implementing that section are in part 193.
If the Administrator issues an order designating information as
protected under 49 U.S.C. 40123, that information will not be disclosed
under the Freedom of Information Act (5 U.S.C. 552) or other laws
except as provided in 49 U.S.C. 40123, 14 CFR part 193, and the order
designating the information as protected. This proposed order is issued
under Sec. 193.11, which sets out the notice procedure for designating
information as protected.
IV. Discussion of the Proposal
Summary of the VDRP Voluntary Information Sharing Program
A. Who may participate: Regulated entities as provided in AC 00-58,
as amended, AC 00-68, and AC 121-37.
B. What voluntarily provided information would be protected from
disclosure under this proposed designation: The content of all
submissions by a regulated entity that are accepted under the VDRP,
including, but not limited to, all of the items listed under Proposed
Findings, Paragraph IV D(2) below.
C. How persons would participate: Regulated entities participate by
notification of an apparent violation to the FAA by the regulated
entity in accordance with the VDRP reporting procedures, and completion
of corrective actions in accordance with AC 00-58, as amended, AC 00-
68, and AC 121-37.
D. Duration of this information sharing program: This information
sharing program would continue in effect indefinitely, unless the FAA
terminates the VDRP, or until the order of designation under part 193
for the VDRP is withdrawn by the FAA.
Proposed Findings
The FAA proposes to designate information received under the VDRP
as protected under 49 U.S.C. 40123 and 14 CFR 193.7 based on the
following findings:
(1) Summary of why the FAA finds that the information will be
provided voluntarily.
The FAA finds that the information will be provided voluntarily. No
regulated entity is required to participate in the VDRP. Initiation of
submissions under the VDRP are indicative of the willingness of
regulated entities to identify and correct their own instances of
regulatory noncompliance, develop long term comprehensive fixes or
corrective action plans, and foster safe operating practices.
(2) Description of the type of information that may be voluntarily
provided under the program and a summary of why the FAA finds that the
information is safety or security related.
The information that would be voluntarily submitted under a VDRP is
described in AC 00-58, as amended, AC 00-68, and AC 121-37. Because the
Federal Aviation Regulations specify the minimum requirements for
safety, and VDRP submissions entail violations of those regulations,
the information is inherently safety related. It would include the
following:
(a) Information contained in an initial notification to the FAA:
--A brief description of the apparent violation, including an estimate
of the duration of time that it remained undetected, as well as how and
when it was discovered;
--Verification that noncompliance ceased after it was identified;
--A brief description of the immediate action taken after the apparent
violation was identified, the immediate action taken to terminate the
conduct that resulted in the apparent violation, and the person
responsible for taking the immediate action;
--Verification that an evaluation is underway to determine if there are
any systemic problems;
--Identification of the person responsible for preparing the
comprehensive fix for disclosures under AC 00-58, as amended, and AC
121-37, or the corrective action plan for disclosures under AC 00-68;
and
--Acknowledgment that a detailed written report will be provided to the
designated FAA official within the timeframe specified in AC 00-58, as
amended, AC 121-37, or AC 00-68, as amended.
(b) Information contained in a detailed written report:
--A list of the specific FAA regulations that may have been violated;
--A description of the apparent violation, including the duration of
time it remained undetected, as well as how and when it was detected;
--A description of the immediate action taken to terminate the conduct
that resulted in the apparent violation, including when it was taken,
and who was responsible for taking the action;
--An explanation that shows the apparent violation was inadvertent;
--Evidence that demonstrates the seriousness of the apparent violation
and the regulated entity's analysis of that evidence;
--A detailed description of the proposed comprehensive fix or
corrective action plan, outlining the planned corrective steps, the
responsibilities for implementing
[[Page 64087]]
those corrective steps, and a time schedule for completion of the fix;
and
--Identification of the company official responsible for monitoring the
implementation and completion of the comprehensive fix.
(c) FAA generated documentation and electronic information that is
directly associated with an accepted VDRP submission, including, but
not limited to:
--Acknowledgment of receipt of a VDRP submission;
--Notification of VDRP acceptance, request for modification, or
rejection;
--Routine correspondence directly associated with a VDRP submission;
--FAA records directly associated with FAA monitoring of a
comprehensive fix or corrective action plan;
--FAA Letter of Correction in accordance with AC 121-37 or, written
notification in accordance with AC 00-58, as amended, and AC 00-68, as
amended, for an accepted VDRP submission; and
--All FAA electronic databases of VDRP submissions and FAA responses.
(d) Information contained in a report submitted to the FAA under
the informal voluntary disclosure reporting process described in AC 00-
68, as amended, including, but not limited to:
--A description of the apparent noncompliance;
--A causal analysis of the apparent noncompliance;
--The corrective action(s) taken or planned; and
--The date by which the regulated entity will complete the corrective
action(s).
(3) Summary of why the FAA finds that the disclosure of the
information would inhibit persons from voluntarily providing that type
of information.
The FAA finds that disclosure of the information would inhibit the
voluntary provision of that type of information. Regulated entities are
reluctant to voluntarily disclose instances of regulatory noncompliance
if such submissions might be subject to public disclosure. A
significant impediment to participation in the VDRP is concern over
public disclosure of the information, and, if disclosed, the potential
for it to be used for other than the system safety enhancement purposes
for which the VDRP was created. Withholding such information from
disclosure is consistent with the FAA's safety and security
responsibilities because, unless the FAA can provide assurance that it
will not be disclosed, regulated entities will be reluctant to
participate in the program. Information received under the VDRP will be
identified as such in each FAA line of business's central database used
to track submissions. To encourage continued use of the VDRP, the FAA
will not keep the identity of persons reporting, or detailed
information about disclosures, under that program in any central
database.
The FAA finds that by virtue of designating information provided
under the VDRP as protected under part 193, the reluctance of regulated
entities to participate due to concerns about possible disclosure of
the information will be mitigated. In addition, FAA will be able to
retain more information about the disclosures, including the identity
of the reporters, in an FAA database, without negatively impacting
participation in the VDRP. Disclosures under the VDRP enable the FAA to
become aware of many more instances of regulatory noncompliance than it
otherwise would and, moreover, the VDRP permits the FAA to assure that
appropriate corrective action is taken. If regulated entities do not
participate, the FAA and the public will be deprived of the opportunity
to make the system safety improvements that receipt of the information
otherwise enables.
(4) Summary of why the receipt of that type of information aids in
fulfilling the FAA's safety and security responsibilities.
The FAA finds that receipt of VDRP information aids in fulfilling
the FAA's safety and security responsibilities. A primary purpose of
FAA regulations is to assure public safety. Because the VDRP identifies
and corrects instances of regulatory noncompliance of which the FAA may
be otherwise unaware, the program offers significant potential for
enhancement of public safety. Receipt of this otherwise unavailable
information would also provide the FAA with an improved basis for
modifying procedures, policies, and regulations to improve safety and
efficiency.
(5) Summary of why withholding such information from disclosure
would be consistent with the FAA's safety and security
responsibilities, including a statement as to the circumstances under
which, and a summary of why, withholding such information from
disclosure would not be consistent with the FAA's safety and security
responsibilities, as described in Sec. 193.9.
The FAA finds that withholding VDRP information provided to the FAA
is consistent with the FAA's safety responsibilities. The VDRP
specifically provides that appropriate corrective action must be taken
by the regulated entity for all instances of regulatory noncompliance
accepted under the program. To be accepted by the FAA, apparent
violations disclosed under the program must be inadvertent, and, where
applicable, must not indicate a lack, or reasonable question of a lack,
of qualification of the regulated entity. Corrective action under the
VDRP can be accomplished by the regulated entity and verified by the
FAA without disclosure of the protected information. If the FAA
determines that the steps taken by the entity are not those documented
in the written report, the submission may be excluded from the VDRP,
and appropriate legal enforcement action may be initiated.
The FAA will release information submitted under a VDRP as
specified in part 193 and this proposed order. The FAA may disclose de-
identified summary information to explain the need for changes in FAA
policies, procedures, and regulations. The term ``de-identified'' means
that the identity of the source of the information and the names of the
regulated entity, employees, and other persons, as well as any other
information that could be used to ascertain the identity of the
submitter have been redacted. The FAA may disclose de-identified,
summarized VDRP information that identifies a systemic problem in the
aviation system, when other persons need to be advised of the problem
so that they can take corrective action. The FAA may disclose de-
identified aggregate statistical information concerning VDRP
submissions. The FAA may disclose independently obtained information
relating to any event disclosed in a VDRP report, unless the FAA
determines that in the case of an accepted VDRP submission, release of
such independently obtained information would be inconsistent with the
provisions of this order, or would otherwise be prohibited by public
law or regulation. The FAA also may disclose information concerning
enforcement action taken for a regulatory violation initially
identified in a VDRP submission, when that submission is not accepted
by the FAA, or, if accepted, it is later excluded by the FAA because of
the regulated entity's failure to comply with the criteria of the VDRP.
The FAA also may disclose any information about a disclosure initially
submitted under the VDRP that is not accepted, or accepted but later
excluded because of the regulated entity's failure to comply with the
criteria of the VDRP.
(6) Summary of how the FAA will distinguish information protected
under part 193 from information the FAA receives from other sources.
In accordance with AC 00-58, as amended, AC 00-68, and AC 121-37,
all
[[Page 64088]]
VRDP submissions must be clearly identified as such by the regulated
entity making the submission. Any other information received by the FAA
from the regulated entity concerning the content of a VDRP submission
must be clearly labeled as follows to be eligible for protection under
this designation: ``WARNING: The Information in this Document is
Protected from Disclosure under 49 U.S.C. 40123 and 14 CFR part 193.''
If the information is submitted electronically, the warning notice must
be appropriately embedded in the electronic submission in a fashion
that assures the visibility of the warning to any viewer.
Proposed Designation
Accordingly, the FAA proposes to designate the above-described
information submitted under a VDRP to be protected under 49 U.S.C.
40123 and part 193, when obtained by the FAA pursuant to an accepted
VDRP submission.
V. Additional information
A. Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The most
helpful comments reference a specific portion of the proposal, explain
the reason for any recommended change, and include supporting data.
Before acting on this proposal, we will consider all comments we
receive on or before the closing date for comments. We will consider
comments filed late if it is possible to do so without incurring
expense or delay. We may change this proposal in light of the comments
we receive.
B. Availability of This Proposed Designation
An electronic copy of rulemaking documents may be obtained from the
Internet by--
1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
3. Accessing the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Aircraft Certification Office, AIR-1, 800
Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-
8235. Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule
may be accessed from the Internet through the Federal eRulemaking
Portal referenced in item (1) above.
Issued under authority provided by 49 U.S.C. 106(f) and 40123 in
Washington, DC, on September 7, 2016.
David W. Hempe,
Deputy Director, Aircraft Certification Service, AIR-1.
[FR Doc. 2016-21966 Filed 9-16-16; 8:45 am]
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