Request for Public Comments on 14 CFR Part 241 Reporting Requirements

Request for Public Comments on 14 CFR Part 241 Reporting Requirements

Federal Register Notice
October 25, 2004
Volume 69, Number 205

AGENCY: Bureau of Transportation Statistics (BTS), DOT.

ACTION: Request for Public Comments.

SUMMARY: Pursuant to the Department's regulations, certain air carriers are required to file BTS Form 41 Schedule B-7 (Airframe and Aircraft Engine Acquisitions and Retirements) and Form 41 Schedule B-43 (Inventory of Airframes and Aircraft Engines). Under the Department's regulations, the Department can withhold confidential business information if release of the confidential information is likely to cause substantial competitive harm to the entity that submitted the information. Based on the sensitive nature of this cost data, carriers have filed motions for confidential treatment and BTS has routinely granted confidential treatment for a ten-year period. After receiving notification that, upon the expiration of the ten-year confidentiality period, the BTS intended to release the cost data, the United Parcel Service Co. (UPS) and United Air Lines, Inc. (United) filed objections to the pending release. Both UPS and United claimed that the cost data, although ten years old, are still so sensitive that their release would result in competitive harm.

BTS is seeking public comments on the merits of the UPS and United positions and views on whether the BTS should increase the confidentiality period for certain airframe and aircraft engine cost data.

DATES: Comments must be received by December 27, 2004.

ADDRESSES: You may submit comments (identified by DMS Docket Number BTS-2004-19380) through the following methods: Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.

Fax: 1-202-493-2251.

Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.

Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Federal Rulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions must include the agency name and docket number. Note that all comments received will be posted without change to http://dms.dot.gov, including any personal information provided. You should know that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

Docket: For access to the docket to read background documents or comments, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Clay Moritz, Office of Airline Information, Bureau of Transportation Statistics, Department of Transportation, Room 4125, 400 Seventh Street, SW., Washington, DC, 20590-0001, (202) 366-4385; clay.moritz@BTS.gov.

SUPPLEMENTARY INFORMATION: Pursuant to 14 CFR part 241, certain air carriers are required to file BTS Form 41 Schedule B-7 (Airframe and Aircraft Engine Acquisitions and Retirements) and Form Schedule B-43 (Inventory of Airframes and Aircraft Engines). These schedules contain cost data concerning airframes and aircraft engines. Specifically, the motions for confidential treatment cover the release of data pertaining to airframe and aircraft engine acquisitions and retirements that are reported in Schedule B-7 columns 9 (Cost), 10 (Depreciated Cost or Amortized Value), 11 (Realization) and the data pertaining to an annual inventory of airframes and aircraft engines that are reporting in Schedule B-43 columns 10 (Acquired Cost or Capitalized Value), 11 (Allowance for Depreciation or Amortization), 12 (Depreciated Cost or Amortized Value), and 13 (Estimated Residual Value). In previous confidentiality requests, UPS and United requested and the BTS effectively granted a ten-year period of confidentiality for the cost data reported on the Form 41, Schedules B-7 and B-43.

Subsequent to the expiration of the confidentiality period, BTS informed twelve air carriers that the agency intended to release the information. In a September 14, 2004 letter, UPS filed objections to the release and, in a September 23, 2004 letter, United also filed objections to the release (see BTS Docket No. 2004-19380). Both UPS and United claim that the information, although ten years old, is so sensitive that each company would suffer "competitive harm" if the BTS releases the information.

In its letter, UPS maintains that the information is still "commercially sensitive" based on three main points: (1) Disclosure of the data diminishes competition among the major aircraft manufacturers; engine manufacturers, and new and used aircraft owners and lessors who can use the commercially sensitive data to closely track UPS" acquisition and retirement costs; (2) disclosure of the data impairs competition among competing domestic and foreign airlines in the international arena because United States airlines are required to reveal major elements of their cost structures when their foreign competitors are not; and (3) the Securities and Exchange Commission (SEC) has determined that these data should be withheld from public disclosure.

In addition, UPS requested that the BTS withhold the information under Exemptions 3 and 4 of the Freedom of Information Act (FOIA) (See 5 U.S.C. 552(b)(3) and (4)). Exemption 3 allows the withholding of information if the disclosure is prohibited by another statute and the statute either: "(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;" (see 5 U.S.C. 552(b)(3)). UPS stated that a provision in the United States Code (see 49 U.S.C. 40115) qualifies as an Exemption 3 statute in that the statute allows the Department to order certain information withheld from public disclosure if the disclosure would "have an adverse effect on the competitive position of an air carrier in foreign air transportation." (See 49 U.S.C. 40115(a)(2)(B)).

In light of its objections, UPS requested that "the Department continue to afford confidential treatment to Form 41 Schedules B-7 and B-43 and that such confidential treatment be continued indefinitely or, at a minimum, for [another] ten (10) years."

United requested an extension based on the fact that prices have changed little since the 1992 to 1996 period. According to United, its "747s delivered in 1994 have aircraft/engine prices which are the same as the prices of the later delivered 747s, except for some minor changes due to price escalation provisions and any minor configuration changes." United also claimed that Exemptions 3 and 4 of FOIA protected this information from disclosure. United also cited the fact that the SEC had provided a period of confidentiality for this information. Thus, United requested that the BTS extend its period of confidentiality until December 31, 2006, the expiration date for the SEC confidentiality period.

Request for Public Comments

We are inviting public comments on the UPS and United requests and views on whether BTS' confidentially period should be retained or amended. Based on the public comments and a review of the requests to extend the confidentiality period, BTS will consider retaining or amending its confidentiality period.

We are posing a series of questions in the hope that the public comments will address several issues in particular:

(1) Do you use the airframe and aircraft engine cost data required under Part 241 and, if so, how do you use the data elements?

(2) Should BTS amend or retain its confidentiality period for airframe and aircraft engine cost data?

(3) Should BTS change the manner in which it collects these data elements?

(4) Would it be in the public interest for BTS to grant the confidentiality extension requests?

Issued in Washington, DC on October 15th, 2004.

Don Bright,
Assistant Director, Office of Airline Information.

[FR Doc. 04-23753 Filed 10-22-04; 8:45 am]

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