[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Notices]
[Pages 12209-12211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4955]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2011-0183]
Access to Aircraft Situation Display (ASDI) and National Airspace
System Status Information (NASSI)
AGENCY: Federal Aviation Administration. DOT.
ACTION: Notice of proposed modification to the FAA/Subscriber
Memorandum of Agreement (MOA) and request for comments.
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SUMMARY: The FAA has tentatively decided that it is in the best
interests of the United States Government and the general public to
modify Section 9 of the June 1, 2006, MOA for Industry Access to
Aircraft Situation Display (ASDI) and National Airspace System Status
Information (NASSI) data, between the FAA and Direct Subscribers to
ASDI and NASSI data-feeds. In recognition of the fact that the Privacy
Act does not protect general aviation operators from public knowledge
of their flight information, the FAA proposes to require Direct
Subscribers (as a condition of signing the MOA) and Indirect
Subscribers (as a condition of signing agreements with Direct
Subscribers) to block from ASDI and NASSI data-feeds available to the
public any general aviation aircraft registration number for which a
Certified Security Concern has been provided to the FAA.
DATES: Comments on the FAA's proposed modification to the MOA must
clearly identify the docket number and must be received on or before
April 4, 2011.
ADDRESSES: You may send comments identified by Docket Number FAA-2011-
0183 using any of the following methods:
Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your
comments electronically.
Mail: Send comments to the Docket Management Facility; US
Department of Transportation, 1200 New Jersey Avenue, SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590.
Fax: Fax comments to the Docket Management Facility at
(202) 493-2251.
Hand Delivery: Bring comments to the Docket Management
Facility 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.
Privacy Considerations: We will post all comments we receive,
without change, to http://www.regulations.gov, including any personal
information you provide. Using the search function of our docket Web
site, anyone can find and read the comments received into any of our
dockets, including the name of the individual sending the comment (or
signing the comment for an association, business, labor union, etc).
You may review the Department of Transportation's complete Privacy Act
Statement in the Federal Register at 65 FR 19,477-78 (Apr. 11, 2000).
[[Page 12210]]
Reviewing the Docket: To read background documents or comments
received in this matter, go to http://www.regulations.gov at any time
or go to the Docket Management Facility in Room W12-140 on the ground
floor of the West Building 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: Barry Davis by telephone at (540) 422-
4650 or by electronic mail at [email protected].
SUPPLEMENTARY INFORMATION: In carrying out its functions over aircraft
flight safety and registration, the FAA requires aircraft to display
registration numbers and requires each person filing an instrument
flight rules flight plan to provide the FAA with information about the
flight, including the aircraft, pilot, departure and landing points,
routing, time enroute, and the number of persons on board. 14 CFR
91.169. The FAA incorporates this information (filtered to exclude
military and sensitive operations) into a visual system (Aircraft
Situation Display) depicting each aircraft and uses it to manage air
traffic flow.
The FAA has entered into an MOA with Direct Subscribers to the ASDI
and NASSI data-feed. The terms of the MOA also extend to Indirect
Subscribers that access the data from the Direct Subscribers and
redistribute it to the public. The MOA prescribes the rights and
responsibilities of the Subscribers and the FAA. The FAA differentiates
the data-feed it provides directly into two classes of users. For Class
One users, the FAA provides a near real time data-feed, because the
data facilitates aircraft dispatching flexibility and management of
user operational resources. Class One users include airlines (including
some corporate flight departments and part 135 operators with direct
responsibility for dispatching or tracking aircraft), professional
aviation organizations with established flight-tracking capabilities,
and government users. For Class Two users, the FAA provides a data-feed
that has been time-delayed by at least five minutes to entities without
a need for near real time positional flight tracking. Class Two users
gaining direct access to recorded (historical) format include most
general aviation and non-aviation-related organizations.
Under 49 U.S.C. 44103, note (Pub. L. 106-181, Apr. 5, 2000),
Congress directed the FAA to conform the MOA to require that a Direct
Subscriber demonstrate the capability to selectively block the display
of any data related to any identified aircraft registration number and
that the Direct Subscriber agree to selective blocking upon the
Administrator's request. Section 7.2.3 of the MOA conforms to that
statutory requirement.
Section 9 of the MOA currently provides a means to protect the
``Privacy and Security Interests'' of general aviation operators. The
FAA currently agrees to accommodate industry initiatives to collect
requests from aircraft owners or operators to exclude their aircraft
from ASDI and NASSI data-feeds available to the public, either in near
real time or in recorded (historical) format. Under Section 9, the FAA
accommodates those initiatives for purposes of protecting the privacy
and security interests of those aircraft owners. The MOA also requires
Direct Subscribers and Indirect Subscribers (through the agreements
signed with Direct Subscribers) to respect these privacy and security
interests when developing or marketing ASDI or NASSI-based products.
Under Section 15, the FAA has the right to terminate the MOA with a
Subscriber that does not appropriately protect the security or privacy
interests.
We have tentatively determined that it is in the best interests of
the United States Government and the general public for the FAA to
exclude general aviation aircraft identification numbers from ASDI and
NASSI data-feeds available to the public only upon certification by the
aircraft owner or operator of a Valid Security Concern (as defined
below).
Although the MOA currently provides for the accommodation of
privacy and security interests from general aviation aircraft owners
and operators upon request and requires the Direct and Indirect
Subscribers to consider and respect these interests, as explained in
Section 9 of the MOA, the Privacy Act (5 U.S.C. 552a) does not protect
general aviation operators from public knowledge of their flight
information. A Federal district court has recently held that a list of
general aviation aircraft registration numbers does not constitute a
trade secret or commercial or financial information under the Freedom
of Information Act, 5 U.S.C. 552. Nat'l Bus. Aviation Ass'n v. Fed.
Aviation Admin., 686 F.Supp.2d 80, 86-87 (D.D.C. 2010). Releasing
registration numbers associated with visual displays of flights would
not reveal either the identity of the passengers on the aircraft or the
purpose of the flight. Accordingly, we do not believe that it is in the
public interest to withhold from public disclosure information that is
not protected by the Privacy Act and other laws.
We recognize that some general aviation aircraft owners or
operators may have a Valid Security Concern (as defined below)
regarding their aircraft or aircraft passengers and seek to have the
aircraft registration numbers of their aircraft blocked from the public
ASDI and NASSI data-feeds. To have the FAA block a general aviation
aircraft registration number, an aircraft owner or operator must
provide the FAA, at least annually, a written certification (a
``Certified Security Concern'') that: a) the facts and circumstances
establish a Valid Security Concern regarding the security of the
owner's or operator's aircraft or aircraft passengers; or b) the
general aviation aircraft owner or operator satisfies the requirements
for a bona fide business-oriented security concern under Treasury
Regulation 1.132-5(m), ``Employer-provided transportation for security
concerns,'' 26 CFR 1.132-5(m).
A Valid Security Concern is a verifiable threat to person, property
or company, including a threat of death, kidnapping or serious bodily
harm against an individual, a recent history of violent terrorist
activity in the geographic area in which the transportation is
provided, or a threat against a company. As with the Treasury
Regulations, a generalized concern about safety is not enough to
establish a Valid Security Concern. We note that Treasury Regulation
1.132-5(m) covers ``working condition fringes'' and provides for the
exclusion from income of certain employer-provided transportation,
including ``flights on employer's aircraft for business and personal
reasons.'' The Internal Revenue Service (IRS) permits the exclusion
when the flights meet a ``bona fide business-oriented security
concern'' that requires an employee to travel on a company plane for
business and personal trips. Under the regulation, the employer must
have a specific basis for a security concern and establish that concern
to the satisfaction of the IRS, through an independent security study
or an overall security program. Providing ASDI and NASSI data-feed
protection to those general aviation aircraft owners or operators that
have bona fide business-oriented security concerns under the Treasury
Regulations is clear, easy to follow, and justifiable.
Direct and Indirect Subscribers would be prohibited from
distributing in a visual display, either in near real time or in
recorded (historical) format, information regarding aircraft for which
a Certified Security Concern has been
[[Page 12211]]
provided to the FAA, and Direct and Indirect Subscribers would be
prohibited from using such information in developing or marketing ASDI-
or NASSI-based products. Under the operative statutory provision, 49
U.S.C. 44103 note, the FAA has the discretion to determine whether
aircraft registration numbers should be blocked, and we do not believe
that protecting aircraft identities from publicly available access is
always in the best interests of the United States Government and the
general public.
Accordingly, we seek comment on modifying Section 9 of the MOA as
follows:
9. Security Interests
The ASDI and NASSI data includes the near real time position and
other flight data associated with civil instrument flight rules
(IFR) aircraft. While commercial operators conduct business
according to a published listing of service and schedule, general
aviation operators do not. It is possible that public knowledge of
the ASDI and NASSI data of certain general aviation operators could
compromise the security of individuals or property. General aviation
aircraft identification numbers must be excluded from public ASDI
and NASSI data-feeds in the event a general aviation aircraft owner
or operator provides the FAA, at least annually, a written
certification (a ``Certified Security Concern'') that a) the facts
and circumstances establish a Valid Security Concern regarding the
security of the owner's or operator's aircraft or aircraft
passengers; or b) the general aviation aircraft owner or operator
satisfies the requirements for a bona fide business-oriented
security concern under Treasury Regulation 1.132-5(m), ``Employer-
provided transportation for security concerns,'' 26 CFR Sec. 1.132-
5(m). A Valid Security Concern is a verifiable threat to person,
property or company, including a threat of death, kidnapping or
serious bodily harm against an individual, a recent history of
violent terrorist activity in the geographic area in which the
transportation is provided, or a threat against a company. The FAA
will no longer accommodate any ASDI- or NASSI-related security or
privacy requests, except such Certified Security Concerns. All
Direct Subscribers (as a condition of signing this MOA) and Indirect
Subscribers (as a condition of signing agreements with Direct
Subscribers) must block any general aviation aircraft registration
numbers for which Certified Security Concerns have been provided to
the FAA. If the FAA determines that any Direct or Indirect
Subscriber develops or markets products that violate this provision,
the FAA's rights under Section 15 shall apply.
Issued in Washington, DC, on March 1, 2011.
Marc L. Warren,
Deputy Chief Counsel.
[FR Doc. 2011-4955 Filed 3-3-11; 8:45 am]
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